[Federal Register Volume 78, Number 2 (Thursday, January 3, 2013)]
[Rules and Regulations]
[Pages 343-534]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30634]



[[Page 343]]

Vol. 78

Thursday,

No. 2

January 3, 2013

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Southwestern Willow Flycatcher; Final Rule

  Federal Register / Vol. 78 , No. 2 / Thursday, January 3, 2013 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0053; 4500030114]
RIN 1018-AX43


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Southwestern Willow Flycatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
revised critical habitat for the southwestern willow flycatcher 
(Empidonax traillii extimus) (flycatcher) under the Endangered Species 
Act. In total, approximately 1,975 stream kilometers (1,227 stream 
miles) are being designated as critical habitat. These areas are 
designated as stream segments, with the lateral extent including the 
riparian areas and streams that occur within the 100-year floodplain or 
flood-prone areas encompassing a total area of approximately 84,569 
hectares (208,973 acres). The critical habitat is located on a 
combination of Federal, State, tribal, and private lands in Inyo, Kern, 
Los Angeles, Riverside, Santa Barbara, San Bernardino, San Diego, and 
Ventura Counties in California; Clark, Lincoln, and Nye Counties in 
southern Nevada; Kane, San Juan, and Washington Counties in southern 
Utah; Alamosa, Conejos, Costilla, and La Plata Counties in southern 
Colorado; Apache, Cochise, Gila, Graham, Greenlee, La Paz, Maricopa, 
Mohave, Pima, Pinal, Santa Cruz, and Yavapai Counties in Arizona; and 
Catron, Grant, Hidalgo, Mora, Rio Arriba, Socorro, Taos, and Valencia 
Counties in New Mexico. The effect of this regulation is to conserve 
the flycatcher's habitat under the Endangered Species Act.

DATES: This rule becomes effective on February 4, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov, Docket No. FWS-R2-ES-2011-0053. Comments and 
materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Office, 2321 West Royal 
Palm Rd., Suite 103, Phoenix, AZ 85021; telephone 602-242-0210; 
facsimile 602-242-2513.
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this critical habitat designation and are available at http://www.fws.gov/southwest/es/arizona, www.regulations.gov at Docket No. 
FWS-R2-ES-2011-0053, and at the Arizona Ecological Services Office (see 
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the Fish and Wildlife Service Web site and 
Field Office set out above, and may also be included in the preamble or 
at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Office, 2321 
West Royal Palm Rd., Suite 103, Phoenix, AZ 85021; telephone 602-242-
0210; facsimile 602-242-2513. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to revise the 
designation of critical habitat for the southwestern willow flycatcher 
(flycatcher). Under the Endangered Species Act (Act), any species that 
is determined to be an endangered or threatened species requires 
critical habitat to be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can only 
be completed by issuing a rule.
    The revised critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of flycatcher critical habitat. In total, we are designating 
as flycatcher critical habitat approximately 1,975 stream kilometers 
(km) (1,227 stream miles (mi)) encompassing a total area of 
approximately (84,569 hectares (ha), (208,973 acres (ac)) in 24 
Management Units.
    We have prepared an economic analysis and environmental assessment 
for the designation of critical habitat. In order to consider economic 
impacts, we have prepared an analysis of the economic impacts of the 
critical habitat designations and related factors. The purpose of the 
environmental assessment, prepared pursuant to the National 
Environmental Policy Act (NEPA), is to identify and disclose the 
environmental consequences resulting from the proposed action of 
designating revised critical habitat for the flycatcher. We announced 
the availability of the draft economic analysis and draft environmental 
assessment in the Federal Register on July 12, 2012 (77 FR 41147), 
allowing the public to provide comments on our analyses. We have 
considered the comments and have completed the final economic analysis 
and final environmental assessment concurrently with this final 
determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from four knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we had used the best 
available information. These peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final revised 
designation. We also considered all comments and information received 
from the public during the comment period.

Previous Federal Actions

    The flycatcher was listed as endangered under the Act (16 U.S.C. 
1531 et seq.) on February 27, 1995 (60 FR 10694). On July 22, 1997, we 
published a final critical habitat designation for the flycatcher along 
964 river km (599 river mi) in Arizona, California, and New Mexico (62 
FR 39129). We published a correction notice on August 20, 1997, on the 
lateral extent of critical habitat (62 FR 44228).
    As a result of a 1998 lawsuit from the New Mexico Cattle Growers' 
Association, on October 19, 2005 (70 FR 60886), we published a revised 
final flycatcher critical habitat rule for portions of Arizona, 
California, New Mexico, Nevada, and Utah, totaling approximately 48,896 
ha (120,824 ac) or 1,186 km (737 mi). River segments were designated as 
critical habitat in 15 of the 32 Management Units described in the 
Recovery Plan (Service 2002, p. 63).
    We were sued by the Center for Biological Diversity over our 2005 
critical habitat rule, and on July 13, 2010, we agreed to redesignate 
critical habitat. The resulting settlement left the existing critical 
habitat designation from 2005 in effect. We proposed a flycatcher 
critical habitat revision on August 15, 2011 (76 FR 50542), and 
additional

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proposal information was included in our July 12, 2012 (77 FR 41147), 
rule reopening the comment period. We requested and received an 
extension to allow a final rule to be delivered to the Federal Register 
by December 14, 2012.

Background

    Additional background information on the flycatcher, beyond what is 
provided below, can be found in the proposed revision of flycatcher 
critical habitat published on August 15, 2011 (76 FR 50542), as well as 
the final flycatcher critical habitat rule published in the Federal 
Register on October 19, 2005 (70 FR 60886); our October 12, 2004, 
proposed critical habitat rule (69 FR 60706); the Southwestern Willow 
Flycatcher Recovery Plan (Recovery Plan) (Service 2002, entire); our 
first flycatcher critical habitat designation, published July 22, 1997 
(62 FR 39129), and August 20, 1997 (62 FR 44228); the final flycatcher 
listing rule (60 FR 10694, February 27, 1995); the 10-year flycatcher 
study in central Arizona (Paxton et al. 2007, entire); the 2007 
rangewide status report (Durst et al. 2008, entire); and flycatcher 
survey protocol and natural history summary (Sogge et al. 2010, 
entire). Other reports can be retrieved from the U.S. Geological 
Survey's (USGS) flycatcher site at http://sbsc.wr.usgs.gov/cprs/research/projects/swwf.

Taxonomy

    The flycatcher, from the taxonomic order Passeriformes, is one of 
four subspecies of the willow flycatcher currently recognized (Hubbard 
1987, pp. 3-6; Unitt 1987, pp. 137-144), although Browning (1993, p. 
248) suggests a possible fifth subspecies (Empidonax traillii 
campestris) in the central and midwestern United States.

Species Description

    The flycatcher is a small, insect-eating generalist (Service 2002, 
p. 26), neotropical migrant bird. It grows to about 15 centimeters (5.8 
inches) in length. It eats a wide range of invertebrate prey including 
flying, and ground- and vegetation-dwelling, insect species of 
terrestrial and aquatic origins (Drost et al. 2003, pp. 96-102). The 
flycatcher spends the winter in locations such as southern Mexico, 
Central America, and probably South America (Ridgely and Gwynne 1989, 
p. 303; Stiles and Skutch 1989, pp. 321-322; Howell and Webb 1995, pp. 
496-497; Unitt 1997, pp. 70-73; Koronkiewicz et al. 1998, p. 12; Unitt 
1999, p. 14).

Distribution

    The known geographical area historically occupied by migrating and 
breeding flycatchers includes southern California, southern Nevada, 
southern Utah, southern Colorado, Arizona, New Mexico, western Texas, 
and extreme northwestern Mexico (Hubbard 1987, pp. 6-10; Unitt 1987, 
pp. 144-152; Browning 1993, pp. 248, 250). The flycatcher's current 
range is similar to the historical range, but the quantity of suitable 
habitat within that range is reduced from historical levels (Service 
2002, pp. 7-10). Flycatchers nest within the southwestern United States 
from about May to September (Sogge et al. 2010, p. 11).
    At the time of listing in February 1995 (60 FR 10694), the 
distribution and abundance of nesting flycatchers, their natural 
history, and areas occupied by breeding, nonbreeding, migrating, and 
dispersing flycatchers were not well known. In February 1995, 359 
breeding territories were known only from California, Arizona, and New 
Mexico. Unitt (1987, p. 156) estimated the entire population was ``well 
under a 1000 pairs, more likely 500,'' and 230 to 500 breeding 
territories (see definition below) were estimated to exist in the July 
23, 1993, flycatcher listing proposal (58 FR 39495, p. 39498).
    At the end of 2007, 1,299 flycatcher breeding territories were 
estimated to occur throughout southern California, southern Nevada, 
southern Utah, southern Colorado, Arizona, and New Mexico (Durst et al. 
2008, p. 4). Some of the flycatcher breeding sites (see definition 
below) having the highest number of territories are found along the 
middle Rio Grande and upper Gila River in New Mexico, and Roosevelt 
Lake and the San Pedro and Gila River confluence area in central 
Arizona.
    A breeding site is simply an area along the river that has been 
described while surveying for flycatcher territories (Service 2002, p. 
C-4; Sogge et al. 2010, p. 34). A breeding site can contain none, only 
one, or many territories. However, within this final rule, we refer to 
breeding sites as areas where flycatcher territories were detected. A 
territory is defined as a discrete area defended by a single flycatcher 
or pair of flycatchers within a single breeding season (Sogge et al. 
2010, p. 34). The territory is usually evidenced by the presence of a 
singing male, and possibly one or more mates (Sogge et al. 2010, p. 
34). When we discuss locations occupied by flycatchers, those are 
locations not just of those areas used as breeding territories, but 
also of those areas used by foraging, migrating, and dispersing 
flycatchers for food, cover, and shelter.
    At the time of listing, breeding sites in California, Nevada, Utah, 
and Colorado described by Unitt (1987, pp. 149-152) were adopted as the 
subspecies' northern boundary. However, the collection and analysis of 
genetic material across this part of the flycatcher's range has since 
refined this boundary (Paxton 2000, pp. 3, 18-20), and reduced the 
extent of the northern boundary of the southwestern subspecies in Utah 
and Colorado (Service 2002, Figure 3). Territories once believed to be 
held by southwestern willow flycatchers in Utah and Colorado are now 
more accurately known to be occupied by a different, non-listed willow 
flycatcher subspecies. As a result, the southwestern subspecies' range 
only occurs in the southernmost portions of Utah and Colorado. This 
genetic work also confirmed the identity of southwestern willow 
flycatcher subspecies throughout the rest of its range.
    The USGS has continued to collect genetic information to help 
refine the northern boundary of the subspecies' range in Utah, 
Colorado, and New Mexico (Paxton et al. 2007a, entire). They 
reconfirmed the genetic markers that identify differences among 
flycatcher subspecies, with breeding sites clustering into two groups 
separated approximately along the currently recognized boundary; 
however, they noted a distinct genetic boundary line between the 
subspecies does not exist (Paxton et al. 2007a, p. 17). Instead of a 
distinct boundary, they suggested that the boundary should be thought 
of as a ``region of genetic overlap'' (Paxton et al. 2007a, p. 17). 
They also described that this genetic overlap region will likely widen 
and contract over time based upon habitat changes (Paxton et al. 2007a, 
p. 17). An additional complication in refining the subspecies' northern 
boundary is that this region is sparsely populated with breeding 
flycatchers, and therefore only minimal information is available that 
would help narrow down the location of a boundary (Paxton et al. 2007a, 
p.16). We continue to seek out territories and collect genetic samples 
to further our understanding of this area, but we currently recognize 
the northern geographic boundary of the flycatcher as described in the 
Recovery Plan (Service 2002, Figures 3, 4).
    All willow flycatcher subspecies spend time migrating in the United 
States from April to June and from July through September. Willow 
flycatchers, like most small, migratory, insect-eating birds, require 
food-rich stopover areas

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in order to replenish energy reserves and continue their northward or 
southward migration (Finch et al. 2000, pp. 71, 78, and 79; Service 
2002, pp. E-3, 42). Migration stopover areas are likely critically 
important for flycatcher productivity and survival (Sogge et al. 1997, 
p. 13; Yong and Finch 1997, p. 253; Service 2002, pp. E-3, 19).

Habitat

    The flycatcher currently breeds in areas from near sea level to 
over 2,600 meters (m) (8,500 feet (ft)) (Durst et al. 2008, p. 14) in 
vegetation alongside rivers, streams, or other wetlands (riparian 
habitat). It establishes nesting territories, builds nests, and forages 
where mosaics of relatively dense and expansive growths of trees and 
shrubs are established, near or adjacent to surface water or underlain 
by saturated soil (Sogge et al. 2010, p. 4). Habitat characteristics 
such as dominant plant species, size and shape of habitat patch, tree 
canopy structure, vegetation height, and vegetation density vary widely 
among breeding sites. Nests are typically placed in trees where the 
plant growth is most dense, where trees and shrubs have vegetation near 
ground level, and where there is a low-density canopy. Some of the more 
common tree and shrub species currently known to comprise nesting 
habitat include Gooddings willow (Salix gooddingii), coyote willow 
(Salix exigua), Geyer's willow (Salix geyeriana), arroyo willow (Salix 
lasiolepis), red willow (Salix laevigata), yewleaf willow (Salix 
taxifolia), boxelder (Acer negundo), tamarisk (also known as saltcedar, 
Tamarix ramosissima), and Russian olive (Elaeagnus angustifolia) 
(Service 2002, p. D-2). While there are exceptions, generally 
flycatchers are not found nesting in areas without willows, tamarisk, 
or both.
    Use of riparian habitats along major drainages in the Southwest 
during migration has been documented (Sogge et al. 1997, pp. 3-4; Yong 
and Finch 1997, p. 253; Johnson and O'Brien 1998, p. 2; McKernan and 
Braden 1999, p. 17; Koronkiewicz et al. 2004, pp. 9-11). Many of the 
willow flycatchers found migrating are detected in riparian habitats or 
patches (small areas of riparian vegetation) that would be unsuitable 
for nest placement (the vegetation structure is too short or sparse, or 
the patch of vegetation is too small). In these drainages, migrating 
flycatchers may use a variety of riparian habitats, including ones 
dominated by native or exotic plant species, or mixtures of both 
(Service 2002, p. E-3).

Life History

    Flycatchers are believed to exist and interact as groups of 
metapopulations (Service 2002, p. 72). A metapopulation is a group of 
geographically separate flycatcher breeding populations connected to 
each other by immigration and emigration (Service 2002, p. 72). 
Flycatcher populations are most stable where many connected sites or 
large populations exist (Service 2002, p. 72). Metapopulation 
persistence or stability is more likely to improve by adding more 
breeding sites rather than adding more territories to existing sites 
(Service 2002, p. 72). This would distribute birds across a greater 
geographical range, minimize risk of simultaneous catastrophic 
population loss, and avoid genetic isolation (Service 2002, p. 72).
    Flycatchers have higher site fidelity (to a local area) than nest 
fidelity (to a specific nest location) and can move among sites within 
stream drainages and between drainages (Kenwood and Paxton 2001, pp. 
29-31). Within-drainage movements are more common than between-drainage 
movements (Kenwood and Paxton 2001, p. 18). Juvenile flycatchers were 
the group of flycatchers that moved (dispersed) the farthest to new and 
distant breeding sites from the area where they hatched (Paxton et al. 
2007, p. 74). The USGS's 10-year flycatcher study in central Arizona 
(Paxton et al. 2007, entire) is the key movement study that has 
generated these conclusions, augmented by other flycatcher banding and 
re-sighting studies (Sedgwick 2004, p. 1103; McLeod et al. 2008, p. 
110).
    The difference in flycatcher dispersal distance among different 
study areas and regions reflects the varying spatial arrangement of 
breeding habitat, illustrating how dispersal tendencies are influenced 
by the geographic distribution of habitat at the stream segment, 
drainage, and landscape scales (Paxton et al. 2007, p. 75). While 
USGS's study focused its effort in central Arizona at two of the 
largest breeding sites, it also included multiple auxiliary sites (up 
to 444 km (275 mi) away), along with other researchers and surveyors 
across the flycatcher's range paying attention to whether flycatchers 
were banded or not. As a result, the broad scope of the study of 
flycatcher movement extends broadly beyond a localized, regional area, 
where habitat configuration dominates the results.
    Banded flycatchers from season to season (and sometimes within 
season) were recorded moving from 50 m (150 feet) to 444 km (275 mi) to 
try to nest. Some long-distance season-to-season movement records 
captured flycatchers moving from the Basin and Mojave Recovery Units to 
the Lower Colorado Recovery Unit and from the Lower Colorado Recovery 
Unit to the Gila Recovery Unit.
    The USGS assimilated all of the flycatcher movement information and 
concluded that rapid colonization and increased metapopulation 
stability could be accomplished by establishing breeding sites within 
30 to 40 km (18 to 25 mi) of each other (Paxton et al. 2007, p. 4). 
Flycatchers at breeding sites configured in this way would be able to 
regularly disperse to new breeding sites or move between known breeding 
sites within the same year or from year-to-year. This proximity of 
sites would increase the connectivity and stability of the 
metapopulation and smaller, more distant breeding sites.

Recovery Planning

    Because the breeding range of the flycatcher encompasses a broad 
geographic area with much site variation, the Recovery Plan divides the 
flycatcher's range into six Recovery Units, each of which are further 
subdivided into four to seven Management Units (for a total of 32 
Management Units) (Service 2002, pp. 61-63). This provides an 
organizational strategy to ``characterize flycatcher populations, 
structure recovery goals, and facilitate effective recovery actions 
that should closely parallel the physical, biological, and logistical 
realities on the ground'' (Service 2002, p. 61). Recovery Units are 
defined based on large watershed and hydrologic units. Within each 
Recovery Unit, Management Units are based on watershed or major 
drainage boundaries at the Hydrologic Unit Code Cataloging Unit level 
(standard watershed boundaries which have already been defined for 
other purposes). The ``outer'' boundaries of some Recovery Units and 
Management Units were defined by the flycatcher's range boundaries. 
Recovery goals are recommended for 29 of the 32 Management Units, and 
this designation of critical habitat is organized geographically within 
these Recovery Units and Management Units (see ``Methodology Overview'' 
section below).
    The Service's 2002 Recovery Plan provides reasonable actions 
recommended to recover the flycatcher and provides two criteria, either 
of which can be met, in order to consider downlisting the species to 
threatened (Service 2002, pp. 77-78). The first alternative for 
downlisting requires reaching a total population of 1,500 flycatcher 
territories geographically distributed among all Recovery Units

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and maintained for 3 years with habitat protections (Service 2002, pp. 
77-78). Habitat protections include a variety of options such as 
habitat conservation plans (HCPs), conservation easements, or safe 
harbor agreements. The second alternative approach for downlisting 
calls for reaching a population of 1,950 territories also strategically 
distributed among all Recovery and Management Units for 5 years without 
additional habitat protection (Service 2002, pp. 77-78).
    In order to delist this flycatcher subspecies (to remove it from 
the List of Endangered and Threatened Wildlife), the Recovery Plan 
recommends that a minimum of 1,950 territories are geographically 
distributed among all Recovery and Management Units, and that twice the 
amount of habitat is provided to maintain these territories over time. 
Second, these habitats must be protected from threats to assure 
maintenance of these populations and habitat for the foreseeable future 
through development and implementation of conservation management 
agreements (Service 2002, pp. 79-80). Third, all of these delisting 
criteria must be accomplished and their effectiveness demonstrated for 
a period of 5 years (Service 2002, pp. 79-80). This critical habitat 
designation is structured to allow the Service to work toward achieving 
the numerical, geographical, and habitat-related recovery goals.
    Twice the amount of suitable habitat is needed to support the 
numerical territory goals because the long-term persistence of 
flycatcher populations cannot be assured by protecting only those 
habitats in which flycatchers currently breed (Service 2002, p. 80). It 
is important to recognize that most flycatcher breeding habitats are 
susceptible to future changes in site hydrology (natural or human-
related), human impacts such as development or fire, and natural 
catastrophic events such as flood or drought (Service 2002, p. 80). 
Furthermore, as the vegetation at sites matures, it can lose the 
structural characteristics that make it suitable for breeding 
flycatchers (Service 2002, p. 80). These and other factors can destroy 
or degrade breeding sites, such that one cannot expect any given 
breeding site to remain suitable in perpetuity (Service 2002, p. 80). 
Thus, it is necessary to have additional suitable habitat available to 
which flycatchers can readily move if displaced by such habitat loss or 
change (Service 2002, p. 80).

Summary of Changes From Proposed Rule

    In developing the final revised flycatcher critical habitat 
designation, we reviewed public comments received on the proposed 
August 15, 2011 (76 FR 50542), revision to critical habitat and the 
draft economic analysis, draft environmental assessment, and proposed 
revisions document made available to the public published on July 12, 
2012 (77 FR 41147). We also conducted further evaluation of lands 
proposed as critical habitat; refined our mapping methodologies; and 
excluded areas from the final designation pursuant to section 4(b)(2) 
of the Act (16 U.S.C. 1531 et seq.). We are making the following 
changes to the final rule from the proposed August 15, 2011, revision 
and subsequent July 12, 2012, document.

Proposed Areas Removed From Final Designation

    (1) We excluded a number of river segments and reservoir bottoms 
under section 4(b)(2) of the Act that we identified as being considered 
for exclusion in the proposed rule (see Exclusions section below). In 
this final rule, we did not exclude every area that was identified in 
the proposed rule as being considered for exclusion. For a complete 
discussion and analysis of areas excluded and an explanation of the 
basis for exclusion see the Exclusions section. This is the primary 
source of reduction in the total designated critical habitat area 
compared to what we identified in the proposal.
    (2) In California, based on information received from public 
comments, we reviewed maps and reports and reevaluated Little Tujunga 
Creek in the Santa Clara Management Unit. We discovered that the 2.2-km 
(1.4-mi) segment of the Little Tujunga Creek is not essential for the 
flycatcher because it provides minimal habitat, metapopulation 
stability, and prevention against catastrophic loss. As a result, we 
determined that it was not essential for flycatcher conservation and 
did not include it in this final revised critical habitat designation.
    (3) In California, we reevaluated mapped information and proposed 
critical habitat along the Santa Ana River within the Prado Basin in 
the Santa Ana Management Unit (76 FR 50542, August 15, 2011, pp. 50563-
50564). We detected, through additional analysis, several groundwater 
recharge ponds and areas at, or below, the 154-m (505-ft) elevation 
line that will be subject to regular inundation. These areas total 
approximately 900.2 ha (2,224.5 ac), and they do not represent areas 
that currently have or can develop flycatcher habitat. As a result, we 
determined that these locations were not essential for flycatcher 
conservation and do not include them in this final revised critical 
habitat designation.
    (4) In Arizona, in response to comments, we reevaluated information 
through maps, reports, and site-specific knowledge about the proposed 
segments of the San Francisco River in the San Francisco Management 
Unit (76 FR 50542, August 15, 2011, p. 50576). This evaluation resulted 
in determining that a 2.7-km (1.7-mi) segment of the San Francisco 
River at Luna Lake, Arizona, which we proposed for designation, does 
not contain the essential physical or biological features of flycatcher 
habitat, and it does not appear to have the ability to develop into 
flycatcher nesting habitat. The habitat surrounding Luna Lake is 
comprised of cattails and meadow grasses, and a narrow section of 
stream downstream from the lake primarily consists of conifers. As a 
result, we determined that this portion of the San Francisco River was 
not essential for flycatcher conservation and do not include it in this 
final revised critical habitat designation.
    (5) In Arizona, in response to comments, we reevaluated 
approximately 6.8 ha (16.8 ac) of land within the proposed segment 
along Pinal Creek, representing about 4 percent of the land outside of 
the Freeport McMoRan (FMC) administered Pinal Creek Management Area. 
These lands are located primarily at the perimeter of the floodplain 
and end of the proposed segment. Because of their placement, these 
lands provide limited value for the flycatcher outside of the 
conservation area. As a result, we determined that these disconnected 
portions of the Pinal Creek floodplain were not essential for 
flycatcher conservation and do not include them in this final revised 
critical habitat designation.
    (6) In Nevada, we reevaluated the 17.3-km (10.8-mi) stream and 
other bodies of water in Pahranagat Valley (hereinafter referred to as 
the Pahranagat River in this final rule) proposed in the Pahranagat 
National Wildlife Refuge (NWR) in the Pahranagat Management Unit (76 FR 
50542, August 15, 2011, p. 50570). Based on our reevaluation, we 
determined that the southern 13.7 km (8.5 mi) of this segment is not 
essential for flycatcher conservation. The habitat along this segment 
consists of open water, marsh, wet meadow, alkali flats, and upland 
salt desert shrub. The water along this segment is standing, is

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ephemeral, or has been channelized in ditches. These areas do not 
currently consist of riparian tree and shrub species and are unlikely 
to develop the necessary vegetation for flycatcher habitat in the 
future. As a result, we determined that these locations were not 
essential for flycatcher conservation and do not include it in this 
final revised critical habitat designation.
    (7) In Nevada, within the Pahranagat Management Unit, we 
inaccurately described the Key Pittman Wildlife Area as a 6.3-km (3.9-
mi) single stream segment along the Pahranagat River (76 FR 50542, 
August 15, 2011, p. 50570) and also inaccurately described the area we 
were considering for exclusion, under section 4(b)(2) of the Act, as a 
single 4.0-km (2.5-mi) segment (76 FR 50542, p. 50583). The Key Pittman 
Wildlife Area is more accurately described as being comprised of two 
separate stream segments, one 2.5 km (1.6 mi) long and the other 1.4 km 
(0.9 mi) long. Between these two portions of the Key Pittman Wildlife 
Area is a 2.4-km (1.5-mi) segment of private land, which consists of 
agricultural fields, and limited water and riparian habitat. Therefore, 
because of the lack of both flycatcher habitat and likelihood of 
developing flycatcher habitat in the future, this area between the 
separate portions of the Key Pittman Wildlife Area should not have been 
identified as an essential area for flycatcher conservation, and we do 
not include it in our final critical habitat designation. We are 
excluding the two stream segments on Key Pittman Wildlife Area under 
section 4(b)(2) of the Act (see Exclusions section).
    (8) In Colorado, we reevaluated information about the habitat on 
the Los Pinos River in the San Juan Management Unit (76 FR 50542, 
August 15, 2011, p. 50571) through maps, reports, and site visits 
(Ireland T. 2012, entire). We found that the northern 9.1-km (5.6-mi) 
portion of the Los Pinos River is at a high elevation, with a steep 
stream slope, and the vegetation composition is not consistent with 
flycatcher habitat. The plant species adjacent to this stream are 
mostly comprised of those not used by nesting flycatchers (such as 
alders and conifers). Therefore, this segment does not currently 
consist of the riparian tree and shrub species used by flycatchers, and 
it is unlikely to develop them in the future. As a result, we 
determined that this portion of the Los Pinos River was not essential 
for flycatcher conservation, and do not include it in this final 
revised critical habitat designation.
    (9) In Colorado, there is a collection of checker-boarded parcels 
of private land interspersed with Southern Ute tribal land along the 
Los Pinos River within the San Juan Management Unit that, upon further 
analysis, we do not consider critical habitat because they are not 
essential for flycatcher conservation. At the perimeter of Southern Ute 
tribal lands along the Los Pinos River, but outside of tribal 
jurisdiction, are collectively about 2.7 intermittent river km (1.7 mi) 
of private lands. Additionally, at the southern end of the Southern Ute 
Reservation, approximately 1.2 km (0.8 mi) or less of scattered private 
land parcels occur. Individually, these parcels are at the perimeter of 
the floodplain, are small in size, and are not contiguous. 
Collectively, they represent a small fraction of the area we considered 
for critical habitat along the Los Pinos River. As result of their 
small size and limited extent of habitat, we do not consider these 
segments essential to flycatcher conservation and do not include them 
in this final revised critical habitat designation.
    (10) In Colorado, there are five small parcels of BLM land on the 
Rio Grande in the San Luis Valley Management Unit that were included in 
the proposed critical habitat. The farthest upstream section is west of 
Del Norte and is 300 m (980 feet) long. The other four parcels are 
south of Alamosa NWR near the Conejos and Costilla County border. The 
boundary of the first parcel does not intersect with the river but is 
within the lateral extent of proposed critical habitat and constitutes 
3.73 ha (9.21 ac). The second parcel is 135 m (443 feet) long. The 
third parcel is 0.96 km (0.59 mi) long. The boundary of the fourth 
parcel also does not intersect the river but is within the lateral 
extent of proposed critical habitat and constitutes 2.77 ha (6.85 ac). 
Because these five small, scattered, and limited sections of habitat 
are not essential to flycatcher recovery, we do not include them in 
this final revised critical habitat designation.
    (11) In New Mexico, in response to comments, we reevaluated 
information about the Elephant Butte Reservoir portion of the proposed 
211.8-km-km (131.6-mi) Rio Grande segment in the Middle Rio Grande 
Management Unit (76 FR 50542, August 15, 2011). This evaluation 
resulted in our determination that the downstream 31.4 km (19.5 mi) of 
the proposed segment within the active conservation pool of Elephant 
Butte Reservoir is not critical habitat. The 31.4 km (19.5 mi) 
downstream portion of the proposed segment that is within the active 
storage pool of Elephant Butte Reservoir is not necessary for the 
conservation of flycatcher, as the Unit without this portion meets the 
quantity of habitat and territories identified as essential for this 
Management Unit (refer to our Criteria Used To Identify Critical 
Habitat section). Therefore, we are not including this portion in the 
designation for this Management Unit.
    More specifically, although the segment contains some elements of 
the physical or biological features of flycatcher habitat along the 
reservoir edge, the habitat features in the downstream portion are not 
essential to flycatcher conservation because the number of flycatcher 
territories and amount of habitat in the farther upstream portion of 
this segment have already far exceeded the recovery goals for this 
Management Unit. The recovery goals in this Management Unit are for 100 
flycatcher territories, and the most recent survey data from 2012 found 
327 territories in this management unit (USBR 2012, p. 1). Only 33 of 
these territories occurred in the downstream portion along Elephant 
Butte Reservoir. Therefore, the upstream portion of the proposed 
segment within Socorro County has about three times more flycatcher 
territories than the recovery goals for this management unit. As a 
result, the lower portion of this segment, where reservoir inundation 
is more likely, and flycatcher habitat may be less persistent over 
time, is not needed to reach recovery goals in this management unit. 
This is consistent with other areas (such as the Roosevelt Management 
Unit) where we used the numerical and habitat-related recovery goals 
from the Recovery Plan, along with the current and previous number of 
known flycatcher territories, to guide the endpoints of critical 
habitat segments along areas with large populations (see ``Methodology 
Overview,'' ``Areas with Large Populations''). As a result, we have 
determined this downstream 31.4 km (19.5 mi) portion of the Rio Grande 
in Elephant Butte Reservoir does not meet our criteria for, and, 
therefore, the definition of, critical habitat for the flycatcher, and 
we have removed it from our final critical habitat designation.

Other Changes

    (12) In California, after further analysis of maps and using 
information received during comments, we have made three revisions to 
the approximate stream lengths along tribal lands within the San Diego 
Management Unit. These lands were subsequently excluded from our final 
designation under section 4(b)(2) of the Act (see Exclusions section).
    We incorrectly described the length of the San Diego River 
occurring along the

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Barona Group of Capitan Grande Band of Mission Indians of the Barona 
Reservation, California and the Viejas (Baron Long) Group of Capitan 
Grande Mission Indians of the Viejas Reservation, California, as 4.7 km 
(2.9 mi) (76 FR 50542, August 15, 2011, p. 55082). We have corrected 
the distance to 0.9 km (0.6 mi) along the San Diego River, consisting 
of approximately 9.0 ha (22 ac) to accurately reflect tribal ownership 
of these lands being excluded under section 4(b)(2) of the Act (see 
Exclusions section).
    We incorrectly described the length of the San Luis Rey River 
occurring along the tribal lands of the Pala Band of Luise[ntilde]o 
Mission Indians, California, as 3.7 km (2.3 mi) (76 FR 50542, August 
15, 2011, p. 55082). We have corrected the distance to 8.3 km (5.2 mi) 
along the San Luis Rey River, to accurately reflect tribal ownership of 
these lands being excluded under section 4(b)(2) of the Act (see 
Exclusions section).
    We incorrectly described the length of the San Luis Rey River 
occurring along the tribal lands of the Rincon Band of Luise[ntilde]o 
Mission Indians, California, as 2.4 km (1.5 mi) (76 FR 50542, August 
15, 2011, p. 55082). We have corrected the distance to 4.3 km (2.7 mi) 
along the San Luis Rey River, to accurately reflect tribal ownership of 
these lands being excluded under section 4(b)(2) of the Act (see 
Exclusions section).
    (13) In California, we inadvertently did not include the Pala Band 
of Luise[ntilde]o Mission Indians' tribal fee lands, currently being 
brought into trust, for exclusion from the revised critical habitat 
designation under section (4)(b)(2) of the Act. Subsequently, we 
received information from them explaining where these fee lands are 
located, have included them in our exclusion analysis, and are 
excluding them under section 4(b)(2) of the Act (see Exclusions 
section).
    (14) In California, we inaccurately described the length of a 
proposed segment of the Santa Ynez River within the Santa Ynez 
Management Unit within the unit description portion of our proposed 
rule (76 FR 50542, August 15, 2011, p. 50563). However, we correctly 
described the end points on the maps within the Federal Register notice 
and maps and electronic maps provided on the Internet and at http://www.regulations.gov. The lower Santa Ynez River segment above 
Vandenberg Air Force Base should more accurately be described as 42.3-
km (26.3-mi) segment, not the 27.6-km (17.2-mi) segment described in 
our proposal.
    (15) In California, we inaccurately described the length of a 
proposed segment of the Santa Ysabel River within the San Diego 
Management Unit (76 FR 50542, August 15, 2011, p. 50565). The upper San 
Ysabel River segment that is contiguous with Temescal Creek should more 
accurately be described as 8.7-km (5.4-mi) segment, not the 9.8-km 
(6.1-mi) segment described in our proposal.
    (16) In California, we inaccurately described the length of a 
proposed segment of the Ca[ntilde]ada Gobernadora Creek within the San 
Diego Management Unit (76 FR 50542, August 15, 2011, p. 50565). The 
mapped Ca[ntilde]ada Gobernadora Creek segment inadvertently included a 
portion of San Juan Creek. As a result, the portion of San Juan Creek 
is not included in this designation, and our Ca[ntilde]ada Gobernadora 
Creek segment is now more accurately a 4.7-km (2.9-mi) segment, not the 
5.9-km (3.7-mi) segment described in our proposal.
    (17) In Arizona, while we identified San Carlos Apache tribal lands 
as areas we were considering for exclusion under section 4(b)(2) of the 
Act, we received new information about parcels of San Carlos Apache 
tribal lands along the lower San Pedro River between the Aravaipa Creek 
and Gila River confluence, totaling about 1.0 km (0.6 mi) and 75 ha 
(185 ha). Subsequently, we have included these separate parcels in our 
exclusion analysis, and are excluding them under section 4(b)(2) of the 
Act (see Exclusions section).
    (18) In New Mexico, we inaccurately identified and mapped the 
location of Navajo Nation (Ramah Navajo) as just south of Zuni Pueblo. 
The most downstream portion of the Zuni River is not on Navajo Nation 
(Ramah Navajo) lands, but more accurately part of Zuni Pueblo. This 
portion of the Zuni River on Zuni Pueblo is excluded from this final 
revised designation of critical habitat under section 4(b)(2) of the 
Act (see Exclusions section).
    (19) In New Mexico, we inaccurately described the length of a 
proposed segment of the Gila River within the Upper Gila Management 
Unit (76 FR 50542, August 15, 2011, p. 50574). The Gila River segment 
from the downstream end of the Middle Gila Box Canyon near the Town of 
Red Rock downstream across the Arizona State line through the Town of 
Duncan, Arizona, should more accurately be described as 65.3-km (40.6-
mi) segment, not the 62.2-km (38.7-mi) segment described in our 
proposal.
    (20) In Colorado, we included an area within our electronic map of 
the proposed rule along the Conejos River that was an error. As a 
result of correcting that error, we are not including an area about 1.6 
km (1 mi) in length that was represented as a lateral extent of the 
Conejos River in this final critical habitat designation. This area 
included a portion of the Rio Grande National Forest in addition to 
private land.
    (21) While mapping the lateral extent of critical habitat, some 
side drainages, tributaries, or washes were included within our 
electronic maps that extend beyond the confluence of the streams we 
described in the proposal. These areas sometimes extended well beyond 
the reasonable confluence area, sometimes about 3 km (1.9 mi) up a 
tributary. For example, portions of San Juan or San Francisquito Creeks 
in California, or West Clear Creek and Beaver Creek in Arizona, 
occurred on our electronic maps. We did not describe these segments in 
the text of the proposed rule, because they were not intended to be 
part of our proposal. We have truncated these segments to the best of 
our ability in the final critical habitat maps, so only those habitats 
on the rivers described are included in the final designation. The 
removal of these segments resulted in an overall minor reduction in the 
amount of critical habitat.
    (22) While mapping the lengths of stream segments electronically, 
the results can vary as GIS programs attempt to account for the bends 
and turns along a stream. Additionally, the irregular shape of 
properties and the exclusion or revision of segments caused challenges 
in trying to accurately describe a length of a stream segment. Even 
when the end points of a segment did not change, as we continued to 
reassess and recalculate stream lengths and round to the nearest tenth, 
a change in a few tenths of a kilometer or mile sometimes occurred. 
Therefore, there is expected to be some minor change in stream lengths 
between our proposal and this final rule.
    (23) Although we attempted to remove as many developed areas as 
possible (areas that have no conservation value as flycatcher habitat) 
before publishing the proposed rule, we were not able to eliminate all 
developed areas. Since publication of the proposed rule and the receipt 
of more accurate mapping data and information, we were able to further 
refine the designation, which has resulted in a more precise 
delineation of habitat containing the physical or biological features 
necessary to support flycatcher life-history requirements. This 
resulted in a minor reduction for some segments from the amounts of 
critical habitat published in the proposed rule. However, it is not 
possible to remove each and every one of these developed areas even at 
the

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refined mapping scale used; therefore, the maps of the designation may 
contain areas that do not contain the physical or biological features 
necessary for the flycatcher. These areas, which include locations such 
as roads, cement pads, utility substations, agricultural fields, 
housing, etc., are not critical habitat and are therefore excluded by 
text in this final rule.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Act (published 
in the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. This is particularly true for the flycatcher because its 
riparian vegetation it uses is prone to alteration and regrowth from 
periodic disturbance, such as flooding. We recognize that critical 
habitat designated at a particular point in time may not include all of 
the habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not be needed for recovery of the species. Areas 
that are important to the conservation of the species, both inside and 
outside the critical habitat designation, will continue to be subject 
to: (1) Conservation actions implemented under section 7(a)(1) of the 
Act; (2) regulatory protections afforded by the requirement in section 
7(a)(2) of the Act for Federal agencies to insure their actions are not 
likely to jeopardize the continued existence of any endangered or 
threatened species; and (3) section 9 of the Act's prohibitions on 
taking any individual of the species, including taking caused by 
actions that affect habitat. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. These 
protections and conservation tools will

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continue to contribute to recovery of this species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, HCPs, or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the flycatcher from studies of this species' habitat, ecology, and 
life history as described below. Additional information can be found in 
the final listing rule published in the Federal Register on February 
27, 1995 (60 FR 10694), and the Flycatcher Recovery Plan (Service 2002, 
entire), Survey Protocol and Natural History Summary (Sogge et al. 
2010, entire), and the 10-year central Arizona ecology study (Paxton et 
al. 2007, entire).
    In general, the areas designated as critical habitat are designed 
to provide sufficient riparian habitat for breeding, non-breeding, 
territorial, dispersing, and migrating flycatchers in order to reach 
the geographic distribution, abundance, and habitat-related recovery 
goals described in the Recovery Plan (Service 2002, pp. 77-85). We are 
not designating any areas as critical habitat solely because they serve 
as a migration habitat. Instead, the areas we are designating serve a 
variety of functions, including habitat to be used by migrating 
flycatchers. The habitat components important for conservation of this 
subspecies were determined from studies of flycatcher behavior and 
habitat use throughout the bird's range (see Background section).
    In general, the physical or biological features of critical habitat 
for nesting flycatchers are found in the riparian areas within the 100-
year floodplain or flood-prone area. Flycatchers use riparian habitat 
for feeding, sheltering, and cover while breeding, migrating, and 
dispersing. It is important to recognize that flycatcher habitat is 
ephemeral in its presence, and its distribution is dynamic in nature 
because riparian vegetation is prone to periodic disturbance (such as 
flooding) (Service 2002, p. 17). Even with the dynamic shifts in 
habitat conditions, one or more of the primary constituent elements 
described below are found throughout each of the units that we are 
designating as critical habitat.
    Flycatcher habitat may become unsuitable for breeding through 
maturation or disturbance of the riparian vegetation, but it may remain 
suitable for use during migration or for foraging. This situation may 
be only temporary, and vegetation may cycle back into suitability as 
breeding habitat (Service 2002, p. 17). Therefore, it is not practical 
to assume that any given breeding habitat area will remain suitable 
over the long term or persist in the same location (Service 2002, p. 
17). Over a 5-year period, flycatcher habitat can, in optimum 
conditions, germinate, be used for migration or foraging, continue to 
grow, and eventually be used for nesting. Thus, flycatcher habitat that 
is not currently suitable for nesting at a specific time, but is useful 
for foraging and migration, can still be important for flycatcher 
conservation. Feeding sites and migration stopover areas are important 
components for the flycatcher's survival, productivity, and health, and 
they can also be areas where new breeding habitat develops as nesting 
sites are lost or degraded (Service 2002, p. 42). These successional 
cycles of habitat change are important for long-term persistence of 
flycatcher habitat.
    Based on our current knowledge of the life history and ecology of 
the flycatcher and the relationship of its life-history functions to 
its habitat, as summarized in the Background section above and in more 
detail in the Recovery Plan (Service 2002, Chapter II), it is important 
to recognize the interconnected nature of the physical or biological 
features that provide the primary constituent elements of critical 
habitat. Specifically, we consider the relationships between river 
function, hydrology, floodplains, aquifers, and plant growth, which 
form the environment essential to flycatcher conservation.
    The hydrologic regime (stream flow pattern) and supply of (and 
interaction between) surface and subsurface water is a driving factor 
in the long-term maintenance, growth, recycling, and regeneration of 
flycatcher habitat (Service 2002, p. 16). As streams reach the 
lowlands, their gradients typically flatten and surrounding terrain 
opens into broader floodplains (Service 2002, p. 32). In these 
geographic settings, the stream-flow patterns (frequency, magnitude, 
duration, and timing) will provide the necessary stream-channel 
conditions (wide configuration, high sediment deposition, periodic 
inundation, recharged aquifers, lateral channel movement, and elevated 
groundwater tables throughout the floodplain) that result in the 
development of flycatcher habitat (Poff et al. 1997, pp. 770-772; 
Service 2002, p. 16). Allowing the river to flow over the width of the 
floodplain, when overbank flooding occurs, is integral to allow 
deposition of fine moist soils, water, nutrients, and seeds that 
provide the essential material for plant germination and growth. An 
abundance and distribution of fine sediments extending farther 
laterally across the floodplain and deeper underneath the surface 
retains much more subsurface water, which in turn supplies water for 
the development of the vegetation that provides flycatcher habitat and 
micro-habitat conditions (Service 2002, p. 16). The interconnected 
interaction between groundwater and surface water contributes to the 
quality of riparian vegetation community (structure and plant species) 
and will influence the germination, density, vigor, composition, and 
the ability of vegetation to regenerate and maintain itself (Arizona 
Department of Water Resources 1994, pp. 31-32).
    In many instances, flycatcher breeding sites occur along streams 
where human impacts are minimized enough to allow more natural 
processes to create, recycle, and maintain flycatcher habitat. However, 
there are also breeding sites that are supported by various types of 
supplemental water including agricultural and urban run-off, treated 
water outflow, irrigation or diversion ditches, reservoirs, and dam 
outflows (Service 2002, p. D-15). Although the waters provided to these 
habitats might be considered ``artificial,'' they are often important 
for maintaining the habitat in appropriate condition for breeding 
flycatchers within the existing environment.

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    In considering the specific physical or biological features 
essential for flycatcher conservation, it is also important to consider 
longer-term processes that may influence habitat changes over time, 
such as climate change. Climate change is a long-term shift in the 
statistics of the weather (including its averages). In its Fourth 
Assessment Report, the Intergovernmental Panel on Climate Change (IPCC) 
defines climate change as, ``a change in the state of the climate that 
can be identified by changes in the mean and/or variability of its 
properties and that persists for an extended period, typically decades 
or longer'' (Solomon et al. 2007, p. 943). Changes in climate already 
are occurring. Examples of observed changes in the physical environment 
include an increase in global average sea level and declines in 
mountain glaciers and average snow cover in both the northern and 
southern hemispheres (IPCC 2007a, p. 30). At continental, regional, and 
ocean basin scales, observed changes in long-term trends of other 
aspects of climate include: a substantial increase in precipitation in 
eastern parts of North American and South America, northern Europe, and 
northern and central Asia; declines in precipitation in the 
Mediterranean, southern Africa, and parts of southern Asia; and an 
increase in intense tropical cyclone activity in the North Atlantic 
since about 1970 (IPCC 2007a, p. 30).
    Projections of climate change globally and for broad regions 
through the 21st century are based on the results of modeling efforts 
using state-of-the-art Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios (Meehl et al. 2007, p. 753; 
Randall et al. 2007, pp. 596-599). As is the case with all models, 
there is uncertainty associated with projections due to assumptions 
used and other features of the models. However, despite differences in 
assumptions and other parameters used in climate change models, the 
overall surface air temperature trajectory is one of increased warming 
in comparison to current conditions (Meehl et al. 2007, p. 762; Prinn 
et al. 2011, p. 527). Among the IPCC's projections for the 21st century 
are the following: (1) It is virtually certain there will be warmer and 
more frequent hot days and nights over most of the earth's land areas; 
(2) it is very likely there will be increased frequency of warm spells 
and heat waves over most land areas, and the frequency of heavy 
precipitation events will increase over most areas; and (3) it is 
likely that increases will occur in the incidence of extreme high sea 
level (excludes tsunamis), intense tropical cyclone activity, and the 
area affected by droughts in various regions of the world (IPCC 2007b, 
p. 8).
    Changes in climate can have a variety of direct and indirect 
ecological impacts on species, and can exacerbate the effects of other 
threats. Climate-associated environmental changes to the landscape, 
such as decreased stream flows, increased water temperatures, reduced 
snowpack, and increased fire frequency, affect species and their 
habitats. The vulnerability of a species to climate change impacts is a 
function of the species' sensitivity to those changes, its exposure to 
those changes, and its capacity to adapt to those changes. The best 
available science is used to evaluate the species' response to these 
stressors. We recognize that future climate change may present a 
particular challenge evaluating habitat conditions for species like the 
flycatcher because the additional stressors may push species beyond 
their ability to survive in their present location.
    Exactly how climate change will affect precipitation in the 
specific areas with flycatcher habitat is uncertain. However, 
consistent with recent observations of regional effects of climate 
change, the projections presented for the Southwest predict warmer, 
drier, and more drought-like conditions (Hoerling and Eischeid 2007, p. 
19; Seager et al. 2007, p. 1181). For example, climate simulations of 
the Palmer Drought Severity Index (a calculation of the cumulative 
effects of precipitation and temperature on surface moisture balance) 
for the Southwest for the periods of 2006 to 2030 and 2035 to 2060 show 
an increase in drought severity with surface warming. Additionally, 
drought still increases even during wetter simulations because of the 
effect of heat-related moisture loss through evaporation and 
evapotranspiration (Hoerling and Eischeid 2007, p. 19). Annual mean 
precipitation is likely to decrease in the Southwest, as is the length 
of snow season and snow depth (IPCC 2007b, p. 887). Most models project 
a widespread decrease in snow depth in the Rocky Mountains and earlier 
snowmelt (IPCC 2007b, p. 891). In summary, we expect that climate 
change will result in a warmer, drier climate, and reduced surface 
water across the flycatcher's range.
    In the recent past, drought has had both negative and positive 
effects on breeding flycatchers and their habitat, which can provide 
insight into how climate change may affect flycatchers and flycatcher 
habitat. For example, the extreme drought of 2002 caused near complete 
reproductive failure of the 146 flycatcher territories at Roosevelt 
Lake in central Arizona (Smith et al. 2003, pp. 8, 10), and caused a 
dramatic rise in the prevalence of non-breeding and unpaired 
flycatchers (Paxton et al. 2007, p. 4). While extreme drought during a 
single year can generate impacts to breeding success, drought can also 
have localized short-term benefits in some regulated environments. For 
instance, at some reservoirs (such as Roosevelt Lake, Arizona, and Lake 
Isabella, California), drought led to reduced water storage, which 
increased the exposure of wet soils at the lake's perimeter. Continued 
drought in those areas allowed the exposed areas to grow vegetation and 
become new flycatcher nesting habitat (Ellis et al. 2008, p. 44). These 
short-term and localized habitat increases are not likely sustainable 
with persistent drought or long-term predictions of a drier 
environment, because of the overall importance of the presence of 
surface water and elevated groundwater needed to grow dense riparian 
forests for flycatcher habitat. As a result, we expect long-term 
climate trends associated with a drier climate to have an overall 
negative effect on the available rangewide habitat for flycatchers.
    Considering these issues and other information regarding the 
biology and ecology of the species, we have determined that the 
flycatcher requires the essential physical or biological features 
described below.
Space for Individual and Population Growth and for Normal Behavior
    Streams of lower gradient and more open valleys with a wide and 
broad floodplain are the geological settings that are known to support 
flycatcher breeding habitat from near sea level to about 2,600 m (8,500 
ft) in elevation in southern California, southern Nevada, southern 
Utah, southern Colorado, Arizona, and New Mexico (Service 2002, p. 7). 
Lands with moist conditions that support riparian plant communities are 
areas that provide flycatcher habitat. Conditions like these typically 
develop in lower elevation floodplains as well as where streams enter 
impoundments, either natural (such as beaver ponds) or human-made 
(reservoirs). Low-gradient stream conditions may also occur at high 
elevations, as in the marshy mountain meadows supporting flycatchers in 
the headwaters of the Little Colorado River near Greer, Arizona, or the 
flat-gradient portions of the upper Rio Grande in south-central 
Colorado and northern New Mexico (Service 2002, p. 32). Sometimes, the

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low-gradient wider floodplain exists only at the habitat patch itself 
within a stream that is otherwise steeper in gradient (Service 2002, p. 
D-12).
    Relatively steep, confined streams can also support flycatcher 
breeding habitat (Service 2002, p. D-13). For instance, a portion of 
the San Luis Rey River in California supports a substantial flycatcher 
population and stands out among flycatcher habitats as having a 
relatively high gradient and being confined in a fairly narrow, steep-
sided valley (Service 2002, p. D-13). Even a steep, confined canyon or 
mountain stream may present local conditions where just a small area 
less than a hectare (acre) in size of flycatcher breeding habitat may 
develop (Service 2002, p. D-13). Such sites are important individually 
and in aggregate to contribute to metapopulation stability, site 
connectivity, and gene flow (Service 2002, p. D-13). Flycatchers can 
occupy very small, isolated habitat patches and may occur in fairly 
high densities within those small patches.
    Many willow flycatchers are found along streams using riparian 
habitat during migration (Yong and Finch 1997, p. 253; Service 2002, p. 
E-3). Migration stopover areas can be similar to breeding habitat or 
riparian habitats with less vegetation density and abundance compared 
to areas for nest placement (the vegetation structure is too short or 
sparse or the patch is too small) (Service 2002, p. E-3). For example, 
many locations where migrant flycatchers were detected on the lower 
Colorado River (LCR) (Koronkiewicz et al. 2004, pp. 9-11) and 
throughout Arizona in 2004 (Munzer et al. 2005, Appendix C) were areas 
surveyed for territories, but none were detected. Such migration 
stopover areas, even though not used for breeding, are critically 
important resources affecting productivity and survival (Service 2002, 
p. E-3). The variety of riparian habitat occupied by migrant 
flycatchers ranges from small patches with shorter and sparser 
vegetation to larger more complex breeding habitats.
    Therefore, based on the information above, we identify streams of 
lower gradient and more open valleys with a wide or broad floodplain an 
essential physical or biological feature of flycatcher habitat. In some 
instances, streams in relatively steep, confined areas can also support 
flycatcher breeding habitat (Service 2002, p. D-13). These areas 
support the abundance of riparian vegetation used for flycatcher 
nesting, foraging, dispersal, and migration.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
Food
    The flycatcher is somewhat of an insect generalist (Service 2002, 
p. 26), taking a wide range of invertebrate prey including flying, and 
ground- and vegetation-dwelling species of terrestrial and aquatic 
origins (Drost et al. 2003, pp. 96-102). Wasps and bees (Hymenoptera) 
are common food items, as are flies (Diptera), beetles (Coleoptera), 
butterflies, moths and caterpillars (Lepidoptera), and spittlebugs 
(Homoptera) (Beal 1912, pp. 60-63; McCabe 1991, pp. 119-120). Plant 
foods such as small fruits have also been reported (Beal 1912, pp. 60-
63; Roberts 1932, p. 20; Imhof 1962, p. 268), but are not a significant 
food during the breeding season (McCabe 1991, pp. 119-120). Diet 
studies of adult flycatchers (Drost et al. 1998, p.1; DeLay et al. 
1999, p. 216) found a wide range of prey taken. Major prey items were 
small (flying ants) (Hymenoptera) to large (dragonflies) (Odonata) 
flying insects, with Diptera and Hemiptera (true bugs) comprising half 
of the prey items. Willow flycatchers also took non-flying species, 
particularly Lepidoptera larvae. From an analysis of the flycatcher 
diet along the South Fork of the Kern River, California (Drost et al. 
2003, p. 98), flycatchers consumed a variety of prey from 12 different 
insect groups. Flycatchers have been identified targeting seasonal 
hatchings of aquatic insects along the Salt River arm of Roosevelt 
Lake, Arizona (Paxton et al. 2007, p. 75).
    Flycatcher food availability may be largely influenced by the 
density and species of vegetation, proximity to and presence of water, 
saturated soil levels, and microclimate features such as temperature 
and humidity (Service 2002, pp. 18, D-12). Flycatchers forage within 
and above the tree canopy, along the patch edge, in openings within the 
territory, over water, and from tall trees as well as herbaceous ground 
cover (Bent 1960, pp. 209-210; McCabe 1991, p. 124). Flycatchers employ 
a ``sit and wait'' foraging tactic, with foraging bouts interspersed 
with longer periods of perching (Prescott and Middleton 1988, p. 25).
    Therefore, based on the information above, we identify the presence 
of a wide range of invertebrate prey, including flying and ground- and 
vegetation-dwelling species of terrestrial and aquatic origins to be an 
essential physical or biological feature of flycatcher habitat.
Water
    Flycatcher nesting habitat is largely associated with perennial 
(persistent) stream flow that can support the expanse of vegetation 
characteristics needed by breeding flycatchers, but there are 
exceptions. Flycatcher nesting habitat can persist on intermittent 
(ephemeral) streams that retain local conditions favorable to riparian 
vegetation (Service 2002, p. D-12). The range and variety of stream 
flow conditions (frequency, magnitude, duration, and timing) (Poff et 
al. 1997, pp. 770-772) that will establish and maintain flycatcher 
habitat can arise in different types of both regulated and unregulated 
flow regimes throughout its range (Service 2002, p. D-12). Also, flow 
conditions that will establish and maintain flycatcher habitat can be 
achieved in regulated streams, depending on scale of operation and the 
interaction of the primary physical characteristics of the landscape 
(Service 2002, p. D-12).
    In the Southwest, hydrological conditions at a flycatcher breeding 
site can vary remarkably within a season and between years (Service 
2002, p. D-12). At some locations, particularly during drier years, 
water or saturated soil is only present early in the breeding season 
(May and part of June) (Service 2002, p. D-12). At other sites, 
vegetation may be immersed in standing water during a wet year but be 
hundreds of meters from surface water in dry years (Service 2002, p. D-
12). This is particularly true of reservoir sites such as the Kern 
River at Lake Isabella, California; Roosevelt Lake, Arizona; and 
Elephant Butte Reservoir, New Mexico (Service 2002, p. D-12). 
Similarly, where a river channel has changed naturally, there may be a 
total absence of water or visibly saturated soil for several years. In 
such cases, the riparian vegetation and any flycatchers breeding within 
it may persist for several years (Service 2002, p. D-12).
    In some areas, natural or managed hydrologic cycles can create 
temporary flycatcher habitat, but may not be able to support it for an 
extended amount of time, or may support varying amounts of habitat at 
different points in the cycle. Some dam operations create varied 
situations that allow different plant species to thrive when water is 
released below a dam, held in a lake, or removed from a lakebed, and 
consequently, varying degrees of flycatcher habitat are available as a 
result of dam operations (Service 2002, p. 33). The riparian vegetation 
that constitutes flycatcher breeding habitat requires substantial water 
(Service 2002,

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p. D-12). Because flycatcher breeding habitat is often where there is 
slow-moving or still water, these slow and still water conditions may 
also be important in influencing the production of insect prey base for 
flycatcher food (Service 2002, p. D-12). These slow-moving water 
situations can also be managed or mimicked through manipulated 
supplemental water originating from sources such as agricultural return 
flows or irrigation canals (Service 2002, p. D-15).
    Therefore, based on the information above, we identify flowing 
streams with a wide range of stream flow conditions that support 
expansive riparian vegetation as an essential physical feature of 
flycatcher habitat. The most common stream flow conditions are largely 
perennial (persistent) stream flow with a natural hydrologic regime 
(frequency, magnitude, duration, and timing). However, in the 
Southwest, hydrological conditions can vary, causing some flows to be 
intermittent, but the floodplain can retain surface moisture conditions 
favorable to expansive and flourishing riparian vegetation. These 
appropriate conditions can be supported by managed water sources and 
hydrological cycles that mimic key components of the natural hydrologic 
cycle.
Sites for Germination or Seed Dispersal
    Subsurface hydrologic conditions may in some places (particularly 
at the more arid locations of the Southwest) be equally important to 
surface water conditions in determining riparian vegetation patterns 
(Lichivar and Wakely 2004, p. 92). Where groundwater levels are 
elevated to the point that riparian forest plants can directly access 
those waters, it can be an area for breeding, non-breeding, 
territorial, dispersing, foraging, and migrating flycatchers. Elevated 
groundwater helps create moist soil conditions believed to be important 
for nesting conditions and prey populations (Service 2002, pp. 11, 18), 
as further discussed below.
    Depth to groundwater plays an important part in the distribution of 
riparian vegetation (Arizona Department of Water Resources 1994, p. 31) 
and, consequently, flycatcher habitat. The greater the depth to 
groundwater below the land surface, the less abundant the riparian 
vegetation (Arizona Department of Water Resources 1994, p. 31). 
Localized, perched aquifers (a saturated area that sits above the main 
water table) can and do support some riparian habitat, but these 
systems are not extensive (Arizona Department of Water Resources 1994, 
p. 31).
    The abundance and distribution of fine sediment deposited on 
floodplains is critical for the development, abundance, distribution, 
maintenance, and germination of the plants that grow into flycatcher 
habitat (Service 2002, p. 16). Fine sediments provide seed beds to 
facilitate the growth of riparian vegetation for flycatcher habitat. In 
almost all cases, moist or saturated soil is present at or near 
breeding sites during wet and non-drought years (Service 2002, p. 11). 
The saturated soil and adjacent surface water may be present early in 
the breeding season, but only damp soil is present by late June or 
early July (Service 2002, p. D-3). Microclimate features (temperature 
and humidity) facilitated by moist or saturated soil, are believed to 
play an important role where flycatchers are detected and nest, their 
breeding success, and availability and abundance of food resources 
(Service 2002, pp. 18, D-12).
    Therefore, based on the information above, we identify elevated 
subsurface groundwater taZbles and appropriate floodplain fine 
sediments as essential physical or biological features of flycatcher 
habitat. These features provide water and seedbeds for the germination, 
growth, and maintenance of expansive growth of riparian vegetation 
needed by the flycatcher.
Cover or Shelter
    Riparian vegetation (described more in detail within the ``Sites 
for Breeding, Reproduction, or Rearing (or Development) of Offspring'' 
section) also provides the flycatcher cover and shelter while migrating 
and nesting. Placing nests in dense vegetation provides cover and 
shelter from predators or nest parasites that would seek out flycatcher 
adults, nestlings, or eggs. Similarly, using riparian vegetation for 
cover and shelter during migration provides food-rich stopover areas, a 
place to rest, and shelter or cover along migratory flights (Service 
2002, pp. D-14, F-16). Riparian vegetation used by migrating 
flycatchers can sometimes be less dense and abundant than areas used 
for nesting (Service 2002, p. D-19). However, migration stopover areas, 
even though not used for breeding, may be critically important 
resources affecting local and regional flycatcher productivity and 
survival (Service 2002, p. D-19).
    Therefore, based on the information above, we identify riparian 
tree and shrub species (described in more detail below) that provide 
cover and shelter for nesting, breeding, foraging, dispersing, and 
migrating flycatchers as essential physical or biological features of 
flycatcher habitat.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
Reproduction and Rearing of Offspring
    Riparian habitat characteristics such as dominant plant species, 
size and shape of habitat patches, tree canopy structure, vegetation 
height, and vegetation density are important parameters of flycatcher 
breeding habitat, although they may vary widely at different sites 
(Service 2002, p. D-1). The accumulating knowledge of flycatcher 
breeding sites reveals important areas of similarity, which constitute 
the basic concept of what is suitable breeding habitat (Service 2002, 
p. D-2). These habitat features are generally discussed below.
    Flycatchers nest in thickets of trees and shrubs ranging in height 
from 2 m to 30 m (6 to 98 ft) (Service 2002, p. D-3). Lower-stature 
thickets (2-4 m or 6-13 ft tall) tend to be found at higher elevation 
sites, with tall-stature habitats at middle- and lower-elevation 
riparian forests (Service 2002, p. D-2). Nest sites typically have 
dense foliage at least from the ground level up to approximately 4 m 
(13 ft) above ground, although dense foliage may exist only at the 
shrub level, or as a low, dense tree canopy (Service 2002, p. D-3).
    Regardless of the plant species' composition or height, breeding 
sites usually consist of dense vegetation in the patch interior, or an 
aggregate of dense patches interspersed with openings creating a mosaic 
that is not uniformly dense (Service 2002, p. 11). Common tree and 
shrub species currently known to comprise nesting habitat include 
Gooddings willow, coyote willow, Geyer's willow, arroyo willow, red 
willow, yewleaf willow, pacific willow (Salix lasiandra), boxelder, 
tamarisk, and Russian olive (Service 2002, pp. D-2, D-11). Other plant 
species used for nesting have been buttonbush (Cephalanthus 
occidentalis), cottonwood, stinging nettle (Urtica dioica), alder 
(Alnus rhombifolia, Alnus oblongifolia, Alnus tenuifolia), velvet ash 
(Fraxinus velutina), poison hemlock (Conium maculatum), blackberry 
(Rubus ursinus), seep willow (Baccharis salicifolia, Baccharis 
glutinosa), oak (Quercus agrifolia, Quercus chrysolepis), rose (Rosa 
californica, Rosa arizonica, Rosa multiflora), sycamore (Platanus 
wrightii), giant reed (Arundo donax), false indigo (Amorpha 
californica), Pacific poison ivy (Toxicodendron diversilobum), grape

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(Vitis arizonica), Virginia creeper (Parthenocissus quinquefolia), 
Siberian elm (Ulmus pumila), and walnut (Juglans hindsii) (Service 
2002, pp. D-3, D-5, D-9). Other species used by nesting flycatchers may 
become known over time as more studies and surveys occur.
    Canopy density (the amount of cover provided by tree and shrub 
branches measured from the ground) at various nest sites ranged from 50 
to 100 percent (Service 2002, p. D-3). Flycatcher breeding habitat can 
be generally organized into three broad habitat types--those dominated 
by native vegetation (typically willow), by exotic (nonnative) 
vegetation (typically salt cedar), and those with mixed native and 
those dominated by exotic plants (typically salt cedar and willow).
    These broad habitat descriptors reflect the fact that flycatchers 
inhabit riparian habitats dominated by both native and nonnative plant 
species. Salt cedar and Russian olive are two exotic plant species used 
by flycatchers for nest placement and also foraging and shelter 
(Service 2002, p. D-4). The riparian patches used by breeding 
flycatchers vary in size and shape (Service 2002, p. D-2). They may be 
relatively dense, linear, contiguous stands or irregularly-shaped 
mosaics of dense vegetation with open areas (Service 2002, pp. D-2-D-
11).
    Flycatchers use tamarisk (or salt cedar) and Russian olive for nest 
placement, foraging, roosting, cover, migration, and dispersal. Fewer 
than half (44 percent) of the known flycatcher territories occur in 
habitat patches that are greater than 90 percent native vegetation in 
composition (Durst et al. 2008, p.15). About 50 percent of all known 
flycatcher territories are located at breeding sites that include 
mixtures of native and exotic plant species (mostly tamarisk) (Durst et 
al. 2008, p.15). In many of these areas, exotic plant species are 
significant contributors to the habitat structure by providing the 
dense lower strata vegetation that flycatchers prefer (Durst et al. 
2008, p.15). A USGS comparative study (Sogge et al. 2005, p. 1) found 
no difference in flycatcher physiology, immunology, site fidelity, 
productivity, or survivorship between flycatchers nesting in tamarisk-
dominated habitat versus native-dominated habitats. Tamarisk habitats 
vary with respect to suitability for breeding flycatchers across their 
range, just as do native habitats (Sogge et al. 2005, p.1). While the 
literature refutes or questions the negative environmental impacts of 
tamarisk (Glenn and Nagler 2005, pp. 1-2; USGS 2010, pp. vi-xviii), 
many riparian vegetation improvement projects focus on the eradication 
or control of tamarisk. The implementation of these projects requires 
careful evaluation (see Special Management Considerations or 
Protections below) and success can rely on the improvement of the 
physical or biological features included in this determination 
associated with river flow and groundwater (Service 2002, Appendices H 
and K).
    Flycatchers have been recorded nesting in patches as small as 0.1 
ha (0.25 ac) along the Rio Grande, and as large as 70 ha (175 ac) in 
the upper Gila River, New Mexico (Service 2002, p. 17). The mean 
reported size of flycatcher breeding patches was 8.6 ha (21.2 ac), with 
the majority of sites toward the smaller end, as evidenced by a median 
patch size of 1.8 ha (4.4 ac) (Service 2002, p. 17). Mean patch size of 
breeding sites supporting 10 or more flycatcher territories was 24.9 ha 
(62.2 ac). Aggregations of occupied breeding patches within a breeding 
site may create a riparian mosaic as large as 200 ha (494 ac), such as 
areas like the Kern River (Whitfield 2002, p. 2), Alamo Lake, Roosevelt 
Lake (Paradzick et al. 1999, pp. 6-7), and Lake Mead (McKernan 1997, p. 
13).
    Flycatchers can cluster their territories into small portions of 
riparian sites (Whitfield and Enos 1996, p. 2; Sogge et al. 1997, p. 
24), and major portions of the site may only be used briefly or not at 
all in any given year. Habitat modeling based on remote sensing and 
electronic Geographic Information System (GIS) data has found that 
breeding site occupancy at reservoir sites in Arizona is influenced by 
vegetation characteristics of habitat adjacent to the actual nesting 
areas (Hatten and Paradzick 2003, pp. 774, 782); therefore, areas 
adjacent to nest sites can be an important component of a breeding 
site. How size and shape of riparian patches relate to factors such as 
flycatcher nest-site selection and fidelity, reproductive success, 
predation, and brood parasitism is unknown (Service 2002, p. D-11).
    With only some exceptions, flycatchers are generally not found 
nesting in confined floodplains (typically those bound within a narrow 
canyon) (Hatten and Paradzick 2003, p. 780) or where only a single 
narrow strip of riparian vegetation less than approximately 10 m (33 
ft) wide develops (Service 2002, p. D-11). While riparian vegetation 
too mature, too immature, or of lesser quality in abundance and breadth 
may not be used for nesting, it can be used by breeding flycatchers for 
foraging (especially if it extends out from larger patches) or during 
migration for foraging, cover, and shelter (Sogge and Tibbitts 1994, p. 
16; Sogge and Marshall 2000, p. 53).
    Therefore, based on the information above, we identify a variety of 
riparian tree and shrub species as essential physical or biological 
features of flycatcher habitat. Typically, dense expansive riparian 
forests provide habitat to place nests. Riparian vegetation of broader 
quality, with a mosaic of open spaces, typically surround locations to 
place nests or along river segments and provide vegetation for 
foraging, perching, dispersal, and migration, and habitat that can 
develop into nesting areas through time.

Primary Constituent Elements for Flycatcher

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to flycatcher 
conservation in areas occupied at the time of listing, focusing on the 
features' primary constituent elements. Primary constituent elements 
are those specific elements of the physical or biological features that 
provide for a species' life-history processes and are essential to the 
conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the flycatcher are:
    (1) Primary Constituent Element 1--Riparian vegetation. Riparian 
habitat along a dynamic river or lakeside, in a natural or manmade 
successional environment (for nesting, foraging, migration, dispersal, 
and shelter) that is comprised of trees and shrubs (that can include 
Gooddings willow, coyote willow, Geyer's willow, arroyo willow, red 
willow, yewleaf willow, pacific willow, boxelder, tamarisk, Russian 
olive, buttonbush, cottonwood, stinging nettle, alder, velvet ash, 
poison hemlock, blackberry, seep willow, oak, rose, sycamore, false 
indigo, Pacific poison ivy, grape, Virginia creeper, Siberian elm, and 
walnut) and some combination of:
    (a) Dense riparian vegetation with thickets of trees and shrubs 
that can range in height from about 2 to 30 m (about 6 to 98 ft). 
Lower-stature thickets (2 to 4 m or 6 to 13 ft tall) are found at 
higher elevation riparian forests and tall-stature thickets are found 
at middle- and lower-elevation riparian forests;
    (b) Areas of dense riparian foliage at least from the ground level 
up to

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approximately 4 m (13 ft) above ground or dense foliage only at the 
shrub or tree level as a low, dense canopy;
    (c) Sites for nesting that contain a dense (about 50 percent to 100 
percent) tree or shrub (or both) canopy (the amount of cover provided 
by tree and shrub branches measured from the ground);
    (d) Dense patches of riparian forests that are interspersed with 
small openings of open water or marsh or areas with shorter and sparser 
vegetation that creates a variety of habitat that is not uniformly 
dense. Patch size may be as small as 0.1 ha (0.25 ac) or as large as 70 
ha (175 ac).
    (2) Primary Constituent Element 2--Insect prey populations. A 
variety of insect prey populations found within or adjacent to riparian 
floodplains or moist environments, which can include: flying ants, 
wasps, and bees (Hymenoptera); dragonflies (Odonata); flies (Diptera); 
true bugs (Hemiptera); beetles (Coleoptera); butterflies, moths, and 
caterpillars (Lepidoptera); and spittlebugs (Homoptera).
    With this critical habitat designation, we intend to identify the 
physical or biological features essential to the conservation of the 
species, through the identification of the features' primary 
constituent elements sufficient to support the life-history processes 
of the species.

Physical or Biological Features and Primary Constituent Elements 
Summary

    The discussion above outlines those physical or biological features 
essential to flycatcher conservation and presents our rationale as to 
why those features were selected. The primary constituent elements 
described above are results of the dynamic river or lakeside 
environment that germinates, develops, maintains, and regenerates the 
riparian forest and provides food for breeding, non-breeding, 
dispersing, territorial, and migrating flycatchers.
    Anthropogenic factors such as dams, irrigation ditches, or 
agricultural field return flow can assist in providing or mimicking the 
conditions that support flycatcher habitat. In regulated environments, 
riparian vegetation improvement projects associated with planting, 
irrigation, and cultivation may also require manual manipulation to 
maintain suitability over the long term.
    Because the flycatcher exists in disjunct breeding populations 
across a wide geographic and elevation range and its habitat is subject 
to dynamic events (such as flooding and drying), the quantity and 
spatial arrangement of critical habitat river segments described below 
are essential for the flycatcher to maintain metapopulation stability, 
connectivity, and gene flow, and to protect against catastrophic loss. 
All river segments designated as flycatcher critical habitat are 
either: (1) Within the known range of the subspecies, representing 
areas known to be occupied at the time of listing; or (2) essential 
areas for the conservation of the species not known to be occupied by 
the flycatcher at the time of listing, but now may or may not be known 
to have flycatchers present. These areas contain at least one the 
primary constituent elements of the physical or biological features 
essential for the conservation of the subspecies. It is important to 
recognize that the primary constituent elements such as riparian 
vegetation with trees and shrubs of a certain type and insect prey 
populations are present throughout the river segments selected, but the 
specific quality of riparian habitat for nesting (which involve 
elements such as specific configuration of riparian foliage, sites for 
nesting, and interspersion of small openings), migration, foraging, and 
shelter will not remain constant in condition or location over time due 
to succession (plant germination and growth) and the dynamic 
environment in which they exist.
    In order to reach the goal of conserving the subspecies by 
recovering an adequate geographical distribution that represents 
ecological diversity of the flycatcher populations, the distribution 
and abundance of flycatcher habitat and breeding populations must 
improve across the 29 Management Units (see Background section). The 
recovery goal is 1,950 flycatcher territories geographically and 
numerically distributed in the appropriate Management Units along with 
twice the habitat needed to maintain these territories (see Background 
section). Also, these areas must hold these populations for a number of 
years and be protected through conservation agreements or other means. 
The most recent rangewide flycatcher assessment estimated that there 
were about 1,300 flycatcher territories (Durst et al. 2008, p. 13). The 
Lower Colorado, Upper Colorado, and Basin and Range Recovery Units need 
the most growth in known territories and habitat to reach recovery 
goals. While there is still great variance in the known number of 
territories within the Coastal California, Gila, and Rio Grande 
Recovery Units, these areas are closer in number of territories and 
amount of habitat to the established recovery goals. The numeric 
territory goals established per Management Unit are in denominations of 
25. The goal for some Management Units may be as few as 25 territories 
or as many as 325.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the species, through the identification of the features' primary 
constituent elements sufficient to support the life-history processes 
of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    As mentioned briefly or referenced in this rule, the flycatcher and 
its habitat are threatened by a multitude of factors occurring at once. 
Threats to those features that define critical habitat (elements of 
physical or biological features) are caused by various factors. We 
believe the essential features within the critical habitat areas will 
require some level of management or protection (or both) to address the 
current and future threats and maintain the quality, quantity, and 
arrangement of the elements of physical or biological features 
essential to flycatcher conservation.
    Essential features in need of special management occur not only at 
the immediate locations where the flycatcher may be present, but at 
additional areas needed to reach recovery goals and areas that can 
provide for normal population fluctuations and habitat succession that 
may occur in response to natural and unpredictable events. The 
flycatcher may be dependent upon habitat components beyond the 
immediate areas where individuals of the species occur if they are 
important in maintaining ecological processes such as hydrologic 
regimes; plant germination, growth, maintenance, and regeneration 
(succession); sedimentation; groundwater elevations; plant health and 
vigor; or maintenance of prey populations.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in flycatcher 
conservation. Federal activities outside of critical habitat are still 
subject to review under section 7 of the Act if they may affect the 
flycatcher or its critical habitat (such as groundwater pumping, 
developments, watershed condition). Prohibitions of

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section 9 of the Act also continue to apply both inside and outside of 
designated critical habitat.
    A detailed discussion of threats to the flycatcher and its habitat 
can be found in the final listing rule (60 FR 10694, February 27, 
1995), the previous critical habitat designations (62 FR 39129, July 
22, 1997; 70 FR 60886, October 19, 2005), and the final Recovery Plan 
(Service 2002, pp. 33-42, Appendix F). Some of the special management 
actions that may be needed for essential features of flycatcher habitat 
are briefly summarized below.
    (1) Restore adequate water-related elements to improve and expand 
the quality, quantity, and distribution of riparian habitat. Special 
management may: increase efficiency of groundwater management; use 
urban water outfall and irrigation delivery and tail waters for 
vegetation improvement; maintain, improve, provide, or reestablish 
instream flows to expand the quality, distribution, and abundance of 
riparian vegetation; increase the width between levees to expand the 
active channel during overbank flooding; and manage regulated river 
flows to more closely resemble the natural hydrologic regime.
    (2) Retain riparian vegetation in the floodplain. Special 
management may include the following actions: avoid clearing channels 
for flood flow conveyance or plowing of flood plains; and implement 
projects to minimize clearing of vegetation (including exotic 
vegetation) to help ensure that desired native species and exotic 
vegetation persist until an effective riparian vegetation improvement 
plan can be implemented.
    (3) Manage biotic elements and processes. Special management may 
include the following actions: manage livestock grazing to increase 
flycatcher habitat quality and quantity by determining appropriate 
areas, seasons, and use consistent within the natural historical norm 
and tolerances; reconfigure grazing units, improve fencing, and improve 
monitoring and documentation of grazing practices; manage wild and 
feral hoofed-mammals (ungulates) (e.g., elk, horses, burros) to 
increase flycatcher habitat quality and quantity; and manage keystone 
species such as beaver to restore desired processes to increase habitat 
quality and quantity.
    (4) Protect riparian areas from recreational impacts. Special 
management may include actions such as managing trails, campsites, off-
road vehicles, and fires to prevent habitat development and degradation 
in flycatcher habitat.
    (5) Manage exotic plant species, such as tamarisk or Russian olive, 
by reducing conditions that allow exotics to be successful, and 
restoring or reestablishing conditions that allow native plants to 
thrive. Throughout the range of the flycatcher, the success of exotic 
plants within river floodplains is largely a symptom of land and water 
management (for example, groundwater withdrawal, surface water 
diversion, dam operation, and unmanaged grazing) that has created 
conditions favorable to exotic plants over native plants. Special 
management may include the following actions: eliminate or reduce 
dewatering stressors such as surface water diversion and groundwater 
pumping to increase stream flow and groundwater elevations; reduce 
salinity levels by modifying agricultural practices and restoring 
natural hydrologic regimes and flushing flood flows; in regulated 
streams, restore more natural hydrologic regimes that favor germination 
and growth of native plant species. Improve timing of water draw down 
in lake bottoms to coincide with the seed dispersal and germination of 
native species; and restore ungulate herbivory to intensities and 
levels under which native riparian species are more competitive.
    (6) Manage fire to maintain and enhance habitat quality and 
quantity. Special management may include the following actions: 
suppress fires that occur; and reduce risk of fire by restoring 
elevated groundwater levels, base flows, flooding, and natural 
hydrologic regimes in order to prevent drying of riparian areas and 
more flammable exotic plant species from developing; and reduce risk of 
recreational fires.
    (7) Evaluate and conduct exotic plant species removal and native 
plant species management on a site-by-site basis. If habitat 
assessments reveal a sustained increase in exotic plant abundance, 
conduct an evaluation of the underlying causes and conduct vegetation 
improvement under measures described in the Recovery Plan (Service 
2002, Appendices H and K). Remove exotics only if: underlying causes 
for dominance have been addressed; there is evidence that exotic 
species will be replaced by vegetation of higher functional value; and 
the action is part of an overall vegetation improvement plan. Native 
riparian vegetation improvement plans should include: a staggered 
approach to create mosaics of different aged successional tree and 
shrub stands; consideration of whether the sites are presently occupied 
by nesting flycatchers; and management of stressors that can improve 
the germination, growth, and maintenance of preferred vegetation.
    (8) Manage or reduce the occurrence, spread, and effects of 
biocontrol agents on flycatcher habitat. Exotic biocontrol tamarisk 
leaf beetle insects (leaf beetles) were brought into and released in 
many locations throughout the western United States. This specific U.S. 
Department of Agriculture program was terminated in 2010, largely 
because these insects are moving farther and thriving in the 
southwestern United States (within the flycatcher's breeding range) 
where it was initially believed they would not persist (APHIS 2010, p. 
2). However, leaf beetles still exist within the United States, and 
specifically within the northern range of the flycatcher in Nevada, 
Arizona, and New Mexico. It is unknown to what extent these leaf 
beetles will continue to move throughout the Southwest. Their overall 
impact or benefit to the flycatcher, flycatcher habitat, and other 
wildlife species is also unknown, but there are predictions that the 
beetles could occur throughout the western United States and into 
northern Mexico (Tracy et al. 2008, pp. 1-3). There is concern about 
effects to the flycatcher in places throughout much of its range where 
the landscape does not support healthy native riparian vegetation (even 
in the absence of tamarisk). Along the Virgin River in southwestern 
Utah, flycatcher breeding attempts have failed concurrent with leaf 
beetle impacts to the vegetation (Paxton et al. 2010, p.1). Rangewide, 
tamarisk is a habitat component of over half of all known flycatcher 
territories (Durst et al. 2007, p. 15). Therefore, it would be 
beneficial to prevent purposeful or accidental intra- or interstate 
transport of leaf beetles to locations that would increase the 
likelihood of beetles dispersing to flycatcher habitat. Similarly, 
because insects can travel or be moved large distances, prevent the 
additional release of leaf beetles (in all their varieties) into the 
environment where they can eventually occur within flycatcher habitat. 
Where leaf beetle-related impacts may occur or are happening, consider 
the previous items in this list and the Recovery Plan for strategies to 
help improve the germination and growth of native plants (Service 2002, 
p. Appendix K).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species (or in this

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instance, a willow flycatcher subspecies). In accordance with the Act 
and its implementing regulation at 50 CFR 424.12(e), we consider 
whether designating additional areas--outside those currently occupied 
as well as those occupied at the time of listing--are necessary to 
ensure the conservation of this flycatcher subspecies. As defined under 
section 3(5)(A)(i) of the Act, we are designating critical habitat in 
areas within the geographical area known to be occupied by nesting 
flycatchers at the time of listing in 1995 that contain the essential 
physical or biological features and require special management or 
protections. As defined under section 3(5)(A)(ii) of the Act, we also 
are designating specific areas outside the geographical area occupied 
by nesting flycatchers at the time of listing (but that are within its 
known historical breeding distribution), because such areas are 
essential for the conservation of the species as supported by the 
geographical and numerical flycatcher territory and habitat-related 
recovery goals established in the Recovery Plan (Service 2002, pp. 84-
85).
Stream Segments as Critical Habitat
    We are designating ``stream segments'' as the descriptor for the 
designated area of flycatcher critical habitat (which in some areas 
also includes exposed reservoir bottoms). Stream segments are 
appropriate for delineating critical habitat because in addition to 
providing stream-side vegetation for flycatchers to place nests, stream 
segments satisfy other various flycatcher life needs adjacent to or 
between nesting sites (foraging habitat, streams, elevated groundwater 
tables, moist soils, flying insects, and other alluvial floodplain 
habitats) (see Physical or Biological Features section). Also, the 
dynamic processes of riparian vegetation succession (loss and regrowth) 
and river hydrology allow for stream segments to provide both current 
and future areas for flycatcher habitat to grow. Riparian vegetation in 
these segments is expected to naturally expand and contract from 
flooding, inundation, drought, and the resulting changes in the extent 
and location of floodplains and river channels (Service 2002, pp. 18, 
D-13-D-15). Therefore, while one or more of the physical or biological 
features are currently present, over time these habitat features will 
fluctuate in quality or location throughout these stream segments. 
Management of stream flows and other anthropogenic (manmade) factors, 
such as agricultural practices or dam operations, can also influence 
the location and quality of the riparian vegetation in many of these 
stream segments. The lateral extent of each river segment occurs within 
the 100-year floodplain (see Physical or Biological Features section) 
and is further described below (see Lateral Extent section). Therefore, 
designating stream segments as critical habitat will provide for the 
variety of flycatcher uses and allow for ever-changing streamside 
vegetation habitat quality (in location and abundance).
Occupancy at the Time of Listing
    We identified areas occupied at the time of listing in 1995 as 
those streams where flycatcher territories were detected in any one 
season from surveys conducted from 1991 to 1994 (Sogge and Durst 2008). 
The flycatcher rangewide database (Sogge and Durst 2008) is the 
authoritative source for determining territories because our 1995 
flycatcher listing rule did not list all known data regarding 
flycatcher distribution and abundance. We considered a broader area to 
be occupied than just the specific site where a territory was located 
because flycatchers are a neotropical migrant traveling between Central 
America (and possibly northern South America) and the United States 
using migration stopover areas for food, cover, and shelter, and they 
are known to move to different nest areas from year to year.
    Because flycatchers are neotropical migrants that occupy riparian 
areas along rivers while traveling between wintering and breeding 
grounds, we expect that abundant small areas along long stretches of 
stream can be irregularly occupied by migrant flycatchers from year-to-
year. North- and south-bound migrating flycatchers are frequently found 
occupying stopover areas along streams upstream of, downstream of, and 
between known breeding sites (Yong and Finch 1997, pp. 265-266; Service 
2002, pp. E2-E3; Koronkiewicz et al. 2004, pp. 9-11). In Arizona, 
migrant flycatchers were detected at 204 sites statewide along 15 of 19 
river drainages surveyed for nesting flycatchers over a 10-year period 
(Ellis et al. 2008, p. 26). Over 600 migrant willow flycatchers 
(subspecies not known) were detected along the length of the LCR in 
2004 (Ellis et al. 2008, p. 26), where only a relatively few known 
breeding sites and territories exist.
    Similarly, flycatchers are known to have fidelity to a larger area 
along stream drainages (rather than specific nest site fidelity), and 
can move their territory locations about 30 to 40 km (18 to 25 mi) from 
year to year (Paxton et al. 2007, p. 4). Locations with breeding 
habitat that are within 30 to 40 km (18 to 25 mi) of each other will 
have higher metapopulation connectivity, and there is a higher 
probability of colonization of new habitats that are within this 
distance (Paxton et al. 2007, p. 76). Sometimes, flycatchers can even 
move to a very distant location, dispersing as far as 444 km (275 mi) 
from a previous year's nesting area (Paxton et al. 2007, p. 2). These 
year-to-year movements are facilitated by the dynamic nature of 
flycatcher habitat, changing in quality and location over time. More 
dramatic changes in habitat quality caused by events such as flooding 
or inundation can force flycatchers to move their breeding location, 
thus causing them to use broader locations and habitat quality.
    Therefore, for this wide-ranging bird, it is difficult to precisely 
determine known occupied areas due to the following considerations: (1) 
The flycatcher's neotropical migratory habits of occupying stopover 
areas along streams upstream of, downstream of, and between breeding 
sites; and (2) the season-to-season variation in habitat quality and 
subsequent lack of specific nest-site fidelity. As a result, for the 
purpose of this critical habitat designation, we believe it is most 
conservative and reasonable to conclude that any stream segment along a 
stream where flycatcher territories were detected from 1991 to 1994 
also be considered occupied at the time of listing. Those stream 
segments considered occupied at the time of listing and those 
considered not occupied at the time of listing that we are designating 
as revised critical habitat are organized by Recovery and Management 
Units (see below) and described briefly in the unit descriptions below. 
All of the stream segments occupied at the time of listing contain one 
or more of the primary constituent elements supported by the physical 
or biological features, which may require special management 
considerations, or protection as described above. We also include 
whether flycatcher territories were detected on stream segments not 
known to be occupied at the time of listing (but are essential for 
flycatcher conservation).
Recovery Plan Guidance
    We relied heavily on the Recovery Plan (Service 2002) to help 
identify the areas that we are designating as revised critical habitat 
because the Recovery Plan represents a compilation of the best 
scientific data available to us. We particularly used the information 
from the Recovery Plan, such as distribution and abundance of 
flycatchers, flycatcher

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natural history and habitat needs, and stream segments with substantial 
recovery value, to help identify stream segments with features 
essential to flycatcher conservation.
    The Recovery Plan's strategy, rationale, and science for 
conservation of the flycatcher guided our efforts to identify essential 
features (elements in sufficient quantity and spatial arrangement) and 
areas of critical habitat (Service 2002, pp. 61-95). Because of the 
wide distribution of this bird and the dynamic nature of its habitat, 
it was important to designate critical habitat in areas throughout all 
of the breeding range of the flycatcher that have stated recovery 
goals. This widespread distribution of habitat is intended to allow 
flycatchers to function as a group of metapopulations, realize gene 
flow throughout its range, provide ecological connectivity among 
disjunct populations, allow for breeding site colonization potential, 
and prevent catastrophic population losses.
    The Recovery Plan (Service 2002, pp. 74-76) identifies important 
factors to consider in minimizing the likelihood of extinction. These 
factors were also considered in our approach to designating areas for 
critical habitat: (1) The territory is the appropriate unit of measure 
for numerical flycatcher recovery goals; (2) populations should be 
distributed throughout the bird's range; (3) populations should be 
distributed close enough to each other to allow for movement among 
them; (4) large populations contribute most to metapopulation 
stability, while smaller populations can contribute to metapopulation 
stability when arrayed in a matrix with high connectivity; (5) as the 
population of a site increases, the potential to disperse and colonize 
increases; (6) increase and decrease in one population affects other 
populations; (7) some Recovery and Management Units have stable 
metapopulations, but others do not; (8) maintaining or augmenting (or 
both) existing populations is a greater priority than establishing new 
populations; and (9) establishing habitat close to existing breeding 
sites increases the chance of colonization.
Methodology Overview
    Our goal was to propose stream segments as critical habitat within 
29 of the 32 Management Units (which are geographic areas clustered 
within 6 Recovery Units) in order to meet the specific numerical 
flycatcher territory and habitat-related recovery goals (Service 2002, 
pp. 84-85), which are the same criteria that we are using to identify 
physical or biological features and designate areas that are essential 
to flycatcher conservation. Three of the 32 Management Units (Lower 
Gila, Pecos, and Texas) do not have any goals identified in the 
Recovery Plan because of either the lack of habitat, the inability for 
habitat to recover, or the determination that meaningful populations 
could not be established and persist. Therefore, no critical habitat 
was proposed or designated within these three Management Units. 
Numerical flycatcher territory recovery goals for each of the 29 
Management Unit vary throughout the flycatcher's range from as few as 
25 territories to as many as 325 (Service 2002, pp. 84-85).
    In relying on these recovery goals and strategies, we used a 
methodology with two basic strategies to identify areas and, 
subsequently, river segments within those areas to propose and consider 
as critical habitat. First, we identified areas based upon the presence 
of large breeding populations and areas with multiple small breeding 
populations that when found in proximity, form a large population. Once 
these areas were established, we identified the specific end points of 
the stream segments of flycatcher habitat. Second, for those Management 
Units with a specific number of territories required to meet recovery 
goals, but no, or very few, known flycatcher territories, we used 
information from the Recovery Plan (Service 2002, pp. 86-92) and other 
relevant sources to identify river segments with flycatcher habitat. 
The results of this strategy were the identification of streams that: 
(1) Were within the geographical area known to be occupied by 
flycatchers at the time of listing with elements of the physical or 
biological features; (2) the identification of essential areas that 
were not known to be occupied by flycatchers at the time of listing but 
that also include elements of the physical or biological features of 
critical habitat; and (3) the identification of areas for critical 
habitat that have never been known to be occupied by flycatchers but 
are essential for the conservation of the flycatcher in order to meet 
recovery goals.
Areas With Large Populations
    To identify the areas with flycatcher habitat in each Management 
Unit, we first considered specific areas that are known since 1991 to 
have had large populations of nesting flycatchers. Since the time of 
listing in 1995, the known distribution and abundance of flycatcher 
territories has increased primarily due to increased survey effort 
(Durst et al. 2008, p. 4). Population increases have also been detected 
at specific areas where habitat quality and quantity improved. As a 
result of more extensive surveys and research, and in particular re-
establishing known occupancy of breeding sites in Nevada, Utah, and 
Colorado, the extent of streams known to be used by migrating, non-
breeding, and dispersing flycatchers has also expanded. Following the 
most recent rangewide estimate in 2007, 1,299 territories were 
described occurring in California, Nevada, Utah, Colorado, Arizona, and 
New Mexico (Durst et al. 2008, p. 4). Additional sites have been 
detected in the following years, but an updated rangewide estimate has 
not yet been compiled.
    The locations of breeding sites were generated from standardized 
flycatcher surveys conducted from 1991 to 2010. There has been a 
standardized survey protocol since the 1995 listing of the flycatcher 
that biologists have used to confirm the presence of flycatcher 
territories that has produced reliable and accurate information 
(Tibbitts et al. 1994, p. 1; Sogge et al. 1997, p. 1; Sogge et al. 
2010, p. 1). To help ensure the protocol is being used properly, the 
Service and our partners provide annual training on protocol 
implementation and flycatcher status, identification, and natural 
history.
    A variety of sources were used to determine breeding site location 
and information from 1991 to 2010. The Recovery Plan (Service 2002), 
the USGS flycatcher rangewide database (Sogge and Durst 2008), the 2007 
flycatcher rangewide report (Durst et al. 2008), and recent survey 
information for the 2008, 2009, and 2010 breeding seasons were all used 
as authoritative sources of information on breeding flycatcher 
distribution and abundance. The flycatcher rangewide database developed 
and maintained by USGS (Sogge and Durst 2008) compiles the results of 
surveys conducted throughout the bird's range since 1991. The most 
recent rangewide assessment of flycatcher distribution and abundance 
analyzed by USGS (Durst et al. 2008) estimates the number of 
territories that occur following the 2007 breeding season, taking into 
account that the entire range of the flycatcher is not surveyed 
completely in any single year. A summary of known historical breeding 
records can be found in the Recovery Plan (Service 2002, pp. 8-10). We 
also evaluated data in reports submitted during section 7 consultations 
and by biologists holding section 10(a)(1)(A) recovery permits; 
research published in peer-reviewed articles, agency reports, and 
databases;

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and regional GIS coverages and habitat models.
    We also examined 2008 to 2010 data that the Service in Arizona, 
Nevada, Utah, and Colorado compiled and entered into separate databases 
and spreadsheets and data from the USGS and U.S. Bureau of Reclamation 
(USBR) for California and New Mexico, respectively. These data were 
compatible and therefore able to be added to results of the 2007 USGS 
rangewide database (Sogge and Durst 2008) and report (Durst et al. 
2008, entire) to identify breeding site locations, territory abundance 
and distribution, and large populations. However, these additional 3 
years of raw data have not been synthesized by USGS into their overall 
USGS rangewide database (Sogge and Durst 2008) and analyzed (consistent 
with Durst et al. 2008, entire) to estimate the overall existing number 
of territories across the flycatcher's range in a single year. Since 
this newer information has not be analyzed along with the remainder of 
the data, the data up to 2007 were the best available information for 
us to identify the overall number of estimated territories known to 
occur across a geographic area, such as a Management Unit or Recovery 
Unit. Therefore, the best available information for estimating the 
number of territories rangewide is the compiled information up through 
the 2007 breeding season (Durst et al. 2008, entire; Sogge and Durst 
2008).
    In order to identify areas with large flycatcher populations, we 
first considered and defined a ``large'' population. We defined a large 
population as a single breeding site or collection of smaller connected 
breeding sites that support 10 or more territories in a single year. We 
selected 10 or more territories to identify a large population because 
the flycatcher population viability analysis indicates a breeding site 
exhibits greatest long-term stability with at least 10 territories 
(Service 2002, p. 72). Large populations persist longer than small 
ones, and produce more dispersers capable of emigrating to other 
populations or colonizing new areas (Service 2002, p. 74). In addition, 
smaller populations with high connectivity to other small populations 
can provide as much or more stability than a single isolated larger 
population with the same number of territories because of the potential 
to disperse colonizers throughout the network of breeding sites 
(Service 2002, p. 75).
    Once the distribution and abundance of flycatcher breeding sites 
were identified and mapped, we considered the degree of connectivity to 
assign smaller separate flycatcher breeding sites and the distance from 
large populations to evaluate these areas as critical habitat. In other 
words, how much area around breeding sites should be considered as 
critical habitat? To determine these distances, we examined the known 
between-year movements of banded adult and juvenile flycatchers. The 
USGS's 10-year flycatcher study in central Arizona is the key movement 
study that has generated these conclusions (Paxton et al. 2007, pp. 59-
80), augmented by other flycatcher banding and re-sighting studies 
(Sedgwick 2004, p. 1103; McLeod et al. 2008, pp. 93-112). These studies 
found that flycatchers have higher site fidelity than nest fidelity and 
can move among breeding sites within drainages and between drainages 
(Kenwood and Paxton 2001, pp. 30-31). Within-drainage movements are 
more common than between-drainage movements (Paxton et al. 2007, p. 
77). Juveniles disperse the farthest and were the only group of 
flycatchers to connect very distant populations (Paxton et al. 2007, p. 
74). Banded flycatchers from season-to-season were recorded moving 
across a wide area from 50 m (150 feet) to 444 km (275 mi) (Paxton et 
al. 2007, p. 2).
    Because of the broad range of flycatcher movements, it is a 
challenge to apply a single distance to characterize the degree of 
connectivity of separated flycatcher breeding sites. However, USGS 
(Paxton et al. 2007, pp. 4, 76, 84, 139, 140) assimilated all of the 
movement information and concluded that rapid colonization of 
flycatcher breeding sites and increased metapopulation stability could 
be accomplished by establishing breeding sites within 30 to 40 km (18 
to 25 mi) of each other. Flycatchers at these breeding sites can 
disperse or move between sites within the same year or from year-to-
year. This proximity of these sites would increase the connectivity and 
stability of the metapopulation and smaller, more distant breeding 
sites.
    As a result of USGS's conclusion, we decided to use 35 km (22 mi), 
the average of the reported range, as a radius to identify an area 
surrounding known large flycatcher breeding sites and the distance to 
connect smaller populations to identify a large population. Because 
there was no distinction by USGS of a distance within this 30 to 40 km 
(18 to 25 mi) range that was more valuable to flycatchers, we believe 
the average is the best representation. After a large population area 
was established, we determined whether other breeding sites in 
proximity occurred. If so, this would add to our large population area, 
generate an additional 35-km (22-mi) radius and extend our area, and so 
on. We also used this 35-km (22-mi) radius to identify those highly 
connected breeding sites with a small number of territories that 
together equaled a large flycatcher population.
    Following the identification of these areas that surround large 
flycatcher populations, we determined where flycatcher habitat occurred 
on streams and where to establish end points for critical habitat. We 
used the Recovery Plan and other literature sources and local knowledge 
to identify stream segments. In combination with these areas of 
flycatcher habitat, we then considered the numerical and habitat-
related recovery goals, and current and previous number of known 
territories. We also considered site-specific knowledge of these 
streams, aerial photography, agency reports, and input from other 
resource managers. The proximity and connectivity of segments to known 
populations and metapopulation stability were also key aspects of the 
flycatcher's natural history we considered in delineating river segment 
end points.
    In both the Roosevelt and Middle Rio Grande Management Units, our 
methods identified a large population area where the current number of 
flycatcher territories needed to reach management unit recovery goals 
has been surpassed by two and three times, respectively. In order to 
identify stream segments and end points for critical habitat that 
supports our recovery goals in this unique situation, we considered 
additional factors such as the known fluctuation and persistence of 
territories over time (such as those associated with reservoir 
inundation), territory proximity, and metapopulation stability. Both 
Management Units have large flycatcher populations located within the 
conservation space of reservoirs, which can produce a large amount of 
habitat and number of territories. But the persistence of these 
reservoir habitats and territories can also be lessened as a result of 
precipitation, river inflow, and dam operations that affect habitat 
availability over time. Therefore, because of the dynamic fluctuation 
of habitat and territories within these reservoirs, we selected areas 
of habitat that overall can contain a greater number of territories 
than are identified in the Recovery Plan in order to meet the goals for 
habitat and territory persistence over time. These habitats included 
portions of reservoirs and streamside habitat outside of these 
reservoirs, which together, can support the goals of territory and 
habitat

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persistence through time when lake elevations remain high. With the 
number of current territories far exceeding recovery goals in these 
Management Units, we found that some occupied habitats at the perimeter 
of our large population areas became less important to reach recovery 
goals. Because of the unique situation where the number of territories 
exceeds the numerical goals established in the Recovery Plan, we did 
not identify some portions of stream segments with territories along 
the Rio Grande and Salt River as critical habitat. Although these areas 
were occupied at the time of listing and had some of the elements of 
physical and biological features, they were determined not to be 
essential for flycatcher conservation and were not included as critical 
habitat.
    Nearly the entire areas of the San Diego and Santa Ana Management 
Units in the Coastal California Recovery Unit were identified as a 
large population area because of the wide distribution and proximity of 
occupied streams segments within them. In contrast to other Management 
Units, our methods were unable to distinguish more specific areas to 
designate within these Management Units.
    Also, our methodology discussed above was unable to distinguish 
areas within some Management Units where neither large populations nor 
small populations with high connectivity were known to occur. For 
example, in the Amargosa, Santa Cruz, San Francisco, Hassayampa and 
Agua Fria, San Juan, Powell, and Lower Rio Grande Management Units, 
there are no known breeding sites with 10 or more flycatcher 
territories, nor are any known territories in high connectivity that 
create a large population. Similarly, in some Management Units a large 
population and surrounding area was identified, but that area was found 
not to be of adequate size to include enough river segments needed to 
support the number of territories called for in the recovery goals. 
This situation occurred in the Little Colorado, Santa Ynez, and Santa 
Clara Management Units. In all of these cases, we used the guidance 
from the Recovery Plan, local knowledge about habitat, and other 
information available to identify additional stream segments as 
important to meet recovery goals, and therefore, essential for the 
conservation of flycatcher.
    When generating the river segments in the situations where there 
were few territories to help guide us, we relied heavily upon 
recommendations and strategies provided in the Recovery Plan and local 
knowledge of habitat conditions, maps, and flycatcher natural history. 
We also sought information from other sources through this critical 
habitat designation process. The Recovery Plan identified portions of 
streams for each Management Unit that would contribute significantly 
toward recovery (Service 2002, pp. 86-92). These streams were not 
listed for the purpose of designating critical habitat nor were they 
intended to be the only streams that were important for recovery, but 
they did identify streams of substantial recovery value. Also, we have 
generated additional information since the Recovery Plan was completed 
about river segments and whether they have or do not have substantial 
recovery value. Still, the list of stream segments described in the 
Recovery Plan (Service 2002, pp. 86-92) provides important guidance, 
especially for Management Units where there are few known flycatcher 
sites, to guide our critical habitat designation. Site-specific 
knowledge of these streams, aerial photography, agency reports, and 
input from other resource managers were also considered. The proximity 
and connectivity of segments to known populations and metapopulation 
stability were also key aspects of the flycatcher's natural history we 
considered in delineating these areas.
    The streams designated as revised flycatcher critical habitat are 
described below. Those streams not within the geographical area known 
to be occupied at the time of listing were determined to be essential 
for flycatcher conservation.
Migratory Habitat
    Habitat for migrating flycatchers is captured in this revised 
designation by our approach to identify critical habitat as ``river 
segments'' and distributing segments across the flycatcher's breeding 
range within the southwestern United States. We are currently unable to 
distinguish the value of specific locations along particular streams 
for flycatcher migration, because stopover areas contain broad habitat 
quality in wide-ranging locations, are only for short-term use, and 
have uncertain occurrence from year-to-year (Finch et al. 2000, pp. 73, 
76-77). Additionally, flycatchers are difficult to distinguish from 
other flycatcher species and subspecies during migration (Finch et al. 
2000, pp. 71-72). Migrant flycatchers can sometimes be found in unusual 
locations away from riparian areas (Finch et al. 2000, p. 76), but 
many, if not most, are detected while searching for nesting flycatchers 
(McLeod et al. 2005, pp. 9-11; Ellis et al. 2008, pp. 26-27). An 
extensive study of flycatcher habitat use along the LCR (from Lake Mead 
to Mexico) and some of its major tributaries in Arizona and southern 
Nevada and Utah found migrating flycatchers in consecutive years 
occurring in nearly all study areas and over half of the survey sites 
(McLeod et al. 2005, pp. 9-11; Koronkiewicz et al. 2006, pp. 11-13). 
Similarly, migratory flycatcher movement was regularly detected along 
the Middle Rio Grande (Yong and Finch 1997, p. 255). As a result of 
these factors, we expect similar flycatcher migration behavior for the 
other major drainages where flycatchers breed throughout its range and 
where these locations are included within this designation. Therefore, 
flycatcher migration habitat is captured within our methods for 
identifying critical habitat to reach recovery goals, because: (1) We 
are designating areas as broader river segments; (2) our areas will be 
geographically located across a broad area of the Southwest 
encompassing most of the range of the flycatcher; and (3) we are 
identifying areas surrounding territory and breeding sites where 
migrant flycatchers are most often detected.
Lateral Extent
    For the lateral extent or width of flycatcher critical habitat, we 
considered the variety of purposes riparian habitat serves the 
flycatcher; the dynamic nature of rivers and riparian habitat; the 
relationship between the location of rivers, flooding, and riparian 
habitat; and the expected boundaries, over time, of these habitats. The 
condition or quality of riparian habitat that flycatchers use adjacent 
to streams for breeding, feeding, sheltering, cover, dispersal, and 
migration stopover areas varies. Riparian habitat is dependent on the 
location of river channels, floodplain soils, subsurface water, and 
floodplain shape, and is driven by the wide variety of high, medium, 
and low flow events. In addition, manmade factors such as diversion 
ditches or agricultural return flows can also influence riparian 
vegetation distribution. Over time, river channels can braid or move 
from one side of the floodplain to the other. Flooding occurs at 
periodic frequencies that recharge aquifers and that deposit and 
moisten fine floodplain soils which create seedbeds for riparian 
vegetation germination and growth within these boundaries.
    In this designation, we consider the riparian zone where flycatcher 
habitat occurs to be the area surrounding the select river segment that 
is directly influenced by river functions. The present boundaries, for 
mapping purposes, of the lateral extent or riparian zone (in other 
words, the

[[Page 362]]

surrogate for the delineation of the lateral boundaries of critical 
habitat within stream segments) were derived by one of two methods. The 
area was either captured from existing digital data sources (listed 
below) or created through expert visual interpretation of remotely 
sensed data (aerial photographs and satellite imagery--also listed 
below). GIS technology was utilized throughout the lateral extent 
determination. ESRI, Inc. ArcInfo 8.3 was used to perform all mapping 
functions and image interpretation. Pre-existing data sources used to 
assist in the process of delineating the lateral extent of the riparian 
zones for this designation included: (1) National Wetlands Inventory 
digital data from the mid-1980s, 2001, and 2002; (2) Federal Emergency 
Management Agency 1995, Q3 100 year flood data; (3) U.S. Census Bureau 
Topologically Integrated Geographic Encoding and Referencing (TIGER); 
and (4) 2000 digital data. The riparian zone is anticipated to occur 
within the 100-year floodplain.
    Where pre-existing data may not have been available to readily 
define riparian zones, visual interpretation of remotely sensed data 
was used to define the lateral extent. Data sources used in this 
included: (1) Terraserver online Digital Orthophoto Quarter Quads, 
black and white, 1990s era and 2001; (2) USGS Digital Orthophoto 
Quarter Quads 1997; (3) USGS aerial photographs, 1 meter, color-
balanced, and true color, 2002; (4) Landsat 5 and Landsat 7 Thematic 
Mapper, bands 4, 2, 3, 1990-2000; (5) Emerge Corp, 1 meter, true color 
imagery, 2001; (6) Local Agency Partnership, 2 foot, true color, 2000; 
and (7) NWI aerial photographs, 2001-2002.
    We refined all lateral extents for this designation by creating 
electronic maps of the lateral extent and attributing them according to 
the following riparian sub-classifications. Riparian developed areas, 
as defined below, are not included in our critical habitat designation 
since these areas do not contain the primary constituent elements (see 
Primary Constituent Elements for the Flycatcher section above), are not 
considered essential to flycatcher conservation and, therefore, do not 
meet the definition of critical habitat. We separated riparian areas 
into the following two categories: (1) Riparian Vegetated: This class 
is used to describe areas still in natural unvegetated wetlands, water 
bodies, and any undeveloped or unmanaged lands within the approximate 
riparian zone. (2) Riparian Developed: This class is used to describe 
all developed areas, such as urban and suburban development, 
agriculture, utility structures and stations, mining, and extraction.
Mapping
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features for the flycatcher. These 
types of developments are not often found adjacent to rivers within 
floodplains, and may not be found on recent maps. The scale of the maps 
we prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the removal of such developed 
lands. Any such developed lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these developed lands 
will not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific action would affect the physical or biological features in the 
adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053 on our Internet 
site at http://www.fws.gov/southwest/es/arizona/, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT above).
Summary of Criteria Used To Identify Critical Habitat
    Our initial steps and approach in generating areas for flycatcher 
critical habitat were to identify areas: (1) Known to be within the 
specific geographic area occupied by the flycatcher at the time of 
listing (from surveys occurring from 1991 to 1994) that contain the 
physical or biological features which may require special management or 
protections; and (2) that are essential to flycatcher conservation 
based on the Recovery Plan goals.
    Following the evaluation of the two factors above, our goal was to 
incorporate the conservation strategies described in the Recovery Plan. 
These strategies describe the importance of flycatcher habitat to 
support stable and growing breeding populations, to provide migration 
stopover areas, to protect against simultaneous catastrophic loss, to 
maintain gene flow, to prevent isolation and extirpation, and to 
provide colonizers to use new areas. Also, the Recovery Plan describes 
the importance of habitat that supports large breeding populations of 
flycatchers and small populations that, when in proximity, equal a 
large population. To achieve these goals, the Recovery Plan describes a 
recovery strategy of distributing flycatcher habitat that could hold a 
specific minimum number of breeding territories across 29 different 
Management Units in portions of California, Nevada, Utah, Colorado, 
Arizona, and New Mexico.
    We therefore created criteria and methodology to identify areas 
surrounding large populations and small populations, in proximity, that 
equaled a large population. We used a 35-km (22-mi) distance as a 
radius to identify areas around large flycatcher populations (those 
with at least 10 territories) and small populations in high 
connectivity that together equal a large population.
    We chose to generate critical habitat in ``river segments'' to 
account for the dynamic aspects of flycatcher riparian habitat, the 
changing locations of flycatcher habitat due to these dynamic 
conditions, population growth, and the variety of other life-history 
needs such as nest placement, foraging, dispersing, cover, shelter, and 
migration habitat. Once these broad areas were established, we 
identified stream segments with flycatcher habitat that we believe will 
support the numerical territory and habitat-related recovery goals for 
the 29 Management Units described in the Recovery Plan.
    Some Management Units with recovery goals do not have known large 
populations or small populations that equal a large population in high 
connectivity. Also, in some Management Units, an area may not contain 
enough habitat to reach the number of territories stated in the 
Recovery Plan. In these instances, we relied upon the Recovery Plan 
guidance (recovery strategy, stream identification, and habitat 
descriptions), flycatcher detections, and local expertise in habitat 
quality to identify river segments considered essential for the 
conservation of the species.
    The lateral extent of river segments designated as critical habitat 
represent the riparian zone, which is an area that is most directly 
influenced by river functions and is anticipated to occur

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within the 100-year floodplain. We created these boundaries from 
existing digital sources and visual interpretation.
    Overall, these designated stream segments represent flycatcher 
habitat known to be occupied at the time of listing and essential areas 
that have high recovery value. The designated areas support stable and 
growing breeding populations, provide migration stopover areas, protect 
against simultaneous catastrophic loss, maintain gene flow, prevent 
isolation and extirpation, and encourage colonizers to use new areas. 
All stream segments provide habitat for a wide distribution of 
flycatcher territories, including areas for population growth to meet 
numerical and habitat-related recovery goals. The designated areas also 
support other important flycatcher needs such as migration, dispersal, 
foraging, and shelter to reach the geographic distribution and habitat-
related recovery goals.
    We are designating as critical habitat lands that we have 
determined were occupied at the time of listing and contain sufficient 
elements of physical or biological features to support life-history 
processes essential for the conservation of the species (as defined 
under section 3(5)(A)(i) of the Act), and lands outside of the 
geographical area occupied at the time of listing that we have 
determined are essential for flycatcher conservation (as defined under 
section 3(5)(A)(ii) of the Act). The occupied stream segments are 
designated based on sufficient elements of physical or biological 
features being present to support flycatcher life processes. Some 
segments contain all of the identified elements of physical or 
biological features and support multiple life processes. Some segments 
contain only some elements of the physical or biological features 
necessary to support the flycatcher's particular use of that habitat.

Final Critical Habitat Designation

    We are designating stream segments in 24 Management Units found in 
six Recovery Units as flycatcher critical habitat. Following our 
evaluation and analysis under section 4(b)(2) of the Act, stream 
segments in five Management Units (Owens, Middle Colorado, Hoover to 
Parker Dam, Parker Dam to Southerly International Border, and Lower Rio 
Grande Management Units) where recovery goals occur and critical 
habitat was proposed were excluded in their entirety (see Exclusions 
section). The designated stream segments occur in California, Nevada, 
Utah, Colorado, Arizona and New Mexico and include a total of 
approximately 1,975 km (1,227 mi) of streams. The following list 
represents the names of the portions of streams that are being 
designated as flycatcher critical habitat organized by Recovery and 
Management Unit. In order to help further understand the location of 
these designated stream segments, please see the associated maps found 
within the Regulation Promulgation section of this final rule.

Coastal California Recovery Unit in California

    (1) Santa Ynez Management Unit--Santa Ynez River and Mono Creek.
    (2) Santa Clara Management Unit--Santa Clara River, Ventura River, 
Piru Creek, Castaic Creek, Big Tujunga Canyon, and San Gabriel River.
    (3) Santa Ana Management Unit--Bear Creek, Mill Creek, Oak Glen 
Creek, San Timoteo Creek, Santa Ana River (including portions of Prado 
Basin), Waterman Creek, and Bautista Creek.
    (4) San Diego Management Unit--Santa Margarita River, DeLuz Creek, 
San Luis Rey River, Pilgrim Creek, Agua Hedionda Creek, Santa Ysabel 
Creek, Temescal Creek, Temecula Creek, Sweetwater River, and San Diego 
River.

Basin and Mojave Recovery Unit in California and Nevada

    (5) Kern Management Unit--South Fork Kern River (including upper 
Lake Isabella) and Canebrake Creek, California.
    (6) Mojave Management Unit--Deep Creek, Holcomb Creek, Mojave 
River, and West Fork Mojave River, California.
    (7) Salton Management Unit--San Felipe Creek and Mill Creek, 
California.
    (8) Amargosa Management Unit--Willow Creek, California; Amargosa 
River, California and Nevada; and five separate riparian areas within 
Ash Meadows National Wildlife Refuge, Nevada.

Lower Colorado Recovery Unit in Nevada, California and Arizona Border, 
Arizona, Utah, and New Mexico

    (9) Little Colorado Management Unit--Little Colorado River and West 
Fork Little Colorado River, Arizona.
    (10) Virgin Management Unit--Virgin River, Nevada, Arizona, and 
Utah.
    (11) Pahranagat Management Unit--Pahranagat River, Nevada.
    (12) Bill Williams Management Unit-- Big Sandy River, Bill Williams 
River, and Santa Maria Rivers (including upper Alamo Lake), Arizona.

Upper Colorado Recovery Unit in Arizona, Utah, Colorado, and New Mexico

    (13) San Juan Management Unit--Los Pinos River, Colorado; San Juan 
River (north bank), Utah.
    (14) Powell Management Unit--Paria River, Utah.

Gila Recovery Unit in Arizona and New Mexico

    (15) Verde Management Unit--Verde River, Arizona.
    (16) Roosevelt Management Unit--Salt River and Tonto Creek, 
Arizona.
    (17) Middle Gila and San Pedro Management Unit--Gila River and San 
Pedro River, Arizona.
    (18) Upper Gila Management Unit--Gila River in Arizona and New 
Mexico.
    (19) Santa Cruz Management Unit--Santa Cruz River, Empire Gulch, 
and Cienega Creek, Arizona.
    (20) San Francisco Management Unit--San Francisco River, Arizona 
and New Mexico.
    (21) Hassayampa and Agua Fria Management Unit--Hassayampa River, 
Arizona.

Rio Grande Recovery Unit in New Mexico and Colorado

    (22) San Luis Valley Management Unit--Conejos River and Rio Grande, 
Colorado.
    (23) Upper Rio Grande Management Unit--Coyote Creek, Rio Grande, 
Rio Grande del Rancho, and Rio Fernando, New Mexico.
    (24) Middle Rio Grande Management Unit--Rio Grande, New Mexico.
    Table 1 below lists all the streams included in this revised 
designation and whether they are considered occupied at the time of 
listing and whether they are currently considered occupied.
    We note which streams were within the geographical area known to be 
occupied at time of listing, based upon our criteria (1991-1994), and 
are therefore being designated under section 3(5)(A)(i) of the act 
because they contain essential physical or biological features that 
require special management or protections. Streams not known to be 
occupied at the time of listing are being designated as critical 
habitat under section 3(5)(A)(ii) of the act because they are essential 
for the conservation of the species. We also note which streams have 
had flycatcher territories detected between 1991 and 2010.

[[Page 364]]



                     TABLE 1--Portion of Streams Designated for Flycatcher Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                                      Known to be occupied
         Recovery unit           Management unit       Portion of      at time of listing   Territories detected
                                                        streams            (1991-1994)           (1991-2010)
----------------------------------------------------------------------------------------------------------------
Coastal California............  Santa Ynez.......  Mono Creek.......  No                    No.
                                                   Santa Ynez River.  Yes                   Yes.
                                Santa Clara......  Big Tujunga        No                    No.
                                                    Canyon.
                                                   Castaic Creek....  No                    No.
                                                   Piru Creek.......  No                    Yes.
                                                   San Gabriel River  No                    Yes.
                                                   Santa Clara River  Yes                   Yes.
                                                   Ventura River....  No                    No.
                                Santa Ana........  Bautista Creek...  No                    Yes.
                                                   Bear Creek.......  No                    Yes.
                                                   Mill Creek.......  No                    Yes.
                                                   Oak Glen Creek...  No                    Yes.
                                                   San Timoteo Creek  No                    Yes.
                                                   Santa Ana River..  No                    Yes.
                                                   Waterman Creek...  No                    Yes.
                                San Diego........  Agua Hedionda      No                    Yes.
                                                    Creek.
                                                   DeLuz Creek......  No                    Yes.
                                                   Pilgrim Creek....  Yes                   Yes
                                                   San Diego River..  No                    Yes.
                                                   San Luis Rey       Yes                   Yes.
                                                    River.
                                                   Santa Margarita    No                    Yes.
                                                    River.
                                                   Santa Ysabel       No                    Yes.
                                                    Creek.
                                                   Sweetwater River.  No                    Yes.
                                                   Temecula Creek...  No                    Yes.
                                                   Temescal Creek...  No                    No.
Basin and Mojave..............  Kern.............  Canebrake Creek..  No                    Yes.
                                                   South Fork Kern    Yes                   Yes.
                                                    River.
                                Mohave...........  Deep Creek.......  No                    No.
                                                   West Fork Mojave   No                    No.
                                                    River.
                                                   Holcomb Creek....  No                    Yes.
                                                   Mojave River.....  No                    Yes.
                                Salton...........  Mill Creek.......  No                    Yes.
                                                   San Felipe Creek.  No                    Yes.
                                Amargosa.........  Amargosa River...  No                    Yes.
                                                   Willow Creek.....  No                    No.
                                                   Ash Meadows        No                    Yes.
                                                    Riparian Areas.
Lower Colorado................  Little Colorado..  Little Colorado    Yes                   Yes.
                                                    River.
                                                   West Fork Little   No                    No.
                                                    Colorado River.
                                Virgin...........  Virgin River.....  No                    Yes.
                                Pahranagat.......  Pahranagat River.  No                    Yes.
                                Bill Williams....  Big Sandy River..  Yes                   Yes.
                                                   Bill Williams      Yes                   Yes.
                                                    River.
                                                   Santa Maria River  Yes                   Yes.
Upper Colorado................  San Juan.........  San Juan River...  No                    Yes.
                                                   Los Pinos River..  No                    Yes.
                                Powell...........  Paria River......  No                    No.
Gila..........................  Verde............  Verde River......  Yes                   Yes.
                                Roosevelt........  Tonto Creek......  Yes                   Yes.
                                                   Salt River.......  Yes                   Yes.
                                Middle Gila and    San Pedro River..  Yes                   Yes.
                                 San Pedro.
                                                   Gila River.......  Yes                   Yes.
                                Upper Gila.......  Gila River.......  Yes                   Yes.
                                Santa Cruz.......  Santa Cruz River.  No                    No.
                                                   Cienega Creek....  No                    Yes.
                                                   Empire Gulch.....  No                    Yes.
                                San Francisco....  San Francisco      Yes                   Yes.
                                                    River.
                                Hassayampa and     Hassayampa River.  No                    Yes.
                                 Agua Fria.
Rio Grande....................  San Luis Valley..  Rio Grande.......  Yes                   Yes.
                                                   Conejos River....  No                    Yes.
                                Upper Rio Grande.  Coyote Creek.....  Yes                   Yes.
                                                   Rio Fernando.....  No                    Yes.
                                                   Rio Grande.......  Yes                   Yes.
                                                   Rio Grande Del     Yes                   Yes.
                                                    Rancho.
                                Middle Rio Grande  Rio Grande.......  Yes                   Yes.
----------------------------------------------------------------------------------------------------------------

    Approximate land ownership in each State where the designated 
critical habitat occurs is provided below in Table 2.

[[Page 365]]



     TABLE 2--Land Ownership, by State, of Revised Designated Critical Habitat Areas for Southwestern Willow
          Flycatcher, Listed as Approximate Stream Lengths in km (mi); and Approximate Area in ha (ac)
----------------------------------------------------------------------------------------------------------------
                                                                                  Other/
     State             Federal              State             Private          Unclassified          Total
----------------------------------------------------------------------------------------------------------------
AZ.............  365 (227); 9,869    50 (31); 3,012      369 (229); 19,436  0 (0); 0 (0).....  784 (487); 32,317
                  (24,387).           (7,443).            (48,026).                             (79,856).
CA.............  188 (117); 2,688    26 (16); 619        78 (48); 1,089     316 (196); 11,470  609 (378); 15,866
                  (6,642).            (1,529).            (2,692).           (28,342).          (39,205).
CO.............  43 (27); 4,063      0 (0); 0 (0)......  7 (5); 221 (547).  0 (0); 0 (0).....  51 (31); 4,284
                  (10,040).                                                                     (10,586).
NV.............  29 (18); 1,451      7 (4); 649 (1,603)  19 (12); 1,383     0 (0); 0 (0).....  54 (34); 3,482
                  (3,584).                                (3,416).                              (8,603).
NM.............  125 (78); 6,318     29 (18); 4,780      248 (154); 14,817  0 (0); 0 (0).....  402 (250); 25,916
                  (15,613).           (11,812).           (36,613).                             (64,039).
UT.............  41 (25); 1,544      0 (0); 15 (38)....  35 (22); 1,146     0 (0); 0 (0).....  76 (47); 2,705
                  (3,816).                                (2,831).                              (6,685).
                ------------------------------------------------------------------------------------------------
Total..........  791 (492); 25,933   112 (69); 9,075     756 (470); 38,091  316 (196); 11,470  1,975 (1,227);
                  (64,082).           (22,424).           (94,125).          (28,342).          84,569
                                                                                                (208,973).
----------------------------------------------------------------------------------------------------------------
Notes: No tribal lands were included in the final revised designation. Totals do not sum because some stream
  segments have different ownership on each side of the bank resulting in those segments being counted twice.
  Other/Unclassified includes some local government ownership and unclassified segments (where land ownership
  was not available).



Critical Habitat Unit Descriptions

    We present brief descriptions below of all critical habitat units 
and reasons why they meet the definition of critical habitat for the 
flycatcher. The units are organized by Recovery Unit and then 
Management Unit. For each Recovery Unit we provide a broad overview of 
the recent distribution and abundance of flycatcher territories. Based 
upon our criteria, we also specifically list those streams designated 
as critical habitat within that Recovery Unit that were known to be 
occupied by flycatchers at the time of listing, and possess the 
physical or biological features that may require special management 
considerations or protection. Detailed site and territory summary 
information used for Recovery and Management Units are primarily 
generated from the USGS Rangewide Database (Sogge and Durst 2008, 
entire) and Flycatcher Rangewide Report (Durst et al. 2008, entire).
    Because of the abundance of information presented in each 
Management Unit description, this paragraph is a brief overview of the 
order of information presented in each unit description. For each 
Management Unit, we begin by stating the numerical territory goal 
described in the Recovery Plan and, in many instances, a brief note 
about flycatcher territory distribution. We next explain whether the 
Management Unit supported a large flycatcher nesting population (as 
defined in the Criteria Used To Identify Critical Habitat, ``Areas with 
Large Populations'' section) in order to establish the areas where we 
initially focused our selection of stream segments to propose as 
critical habitat. For Management Units where there was a large 
population, we provide more specific information about the occurrence 
of flycatcher territories within that large population area. If there 
was no known large flycatcher nesting population, we provide 
information about known flycatcher distribution and abundance with that 
Management Unit. We next present those stream segments we are 
designating as critical habitat and appropriate location and length 
descriptions. Any stream segments we designate that were not known to 
be occupied at the time of listing, we described as an ``essential'' 
segment for flycatcher conservation in order to reach the stated 
recovery goals for this Management Unit. We reiterate the description 
of those designated segments that were known to be occupied by 
flycatchers at the time of listing. Finally, we explain how the 
critical habitat designation of stream segments supports the science 
and conservation goals established in the Recovery Plan, and for those 
streams not occupied at the time of listing, we offer information 
supporting why they are considered essential for flycatcher 
conservation.
    For each stream segment being designated as critical habitat, we 
identify the State and County where it occurs and list the stream 
length being designated rounded up to the nearest tenth of a kilometer 
and mile. The specific beginning and ending points of each designated 
stream segment can be found below in the combination of textual 
descriptions and associated maps for each critical habitat unit in the 
Regulation Promulgation section of this document. In addition, GIS data 
for all designated stream segments, which include more specific lateral 
extent critical habitat information, may be downloaded online at http://www.fws.gov/southwest/es/arizona/southwes.htm. We also note in our 
descriptions which stream segments which were proposed for critical 
habitat were exempted under section 4(a)(3) under the Act or were 
excluded from critical habitat under section 4(b)(2) of the Act. For 
more explanation of why any stream is being exempted or excluded, see 
the discussions under the Exemptions and Exclusions sections below.
    All of the designated stream segments provide flycatcher habitat 
for breeding, feeding, sheltering, and migration, and subsequently 
provide metapopulation stability, gene flow of the subspecies, 
protection against catastrophic population losses, and connectivity 
between neighboring Management Units and Recovery Units (Service 2002, 
pp. 74-75, 86-92). They also provide habitat to help meet the numerical 
and habitat-related goals identified in the Recovery Plan (Service 
2002, pp. 77-92). Most of the segments are a subset of those identified 
in the Recovery Plan as areas that provide substantial recovery value 
(Service 2002, pp. D-12-D-15). Since completion of the Recovery Plan, 
additional segments of substantial recovery value have been identified 
through continued survey, analysis, and habitat evaluation, and have 
been included in this designation when needed to reach recovery goals. 
The distribution and abundance of territories and habitat within each 
designated segment are expected to shift over time as a result of 
natural disturbance events such as flooding that reshape floodplains, 
river channels, and riparian habitat (Service 2002, pp. 18, D-11-D-13, 
D-15).
Coastal California Recovery Unit
    This Recovery Unit stretches along the coast of southern California 
from just north of Point Conception south to

[[Page 366]]

the Mexico border. In 2002, 167 flycatcher territories were estimated 
to occur in this Recovery Unit (14 percent of the rangewide total) 
(Sogge et al. 2003); however the most recent 2007 rangewide assessment 
estimated that the number of territories has declined to 120 (9 percent 
of rangewide total) (Durst et al. 2008, p. 12). Since the completion of 
the Recovery Plan, territories have been distributed along 15 
relatively small watersheds, mostly in the southern third of the 
Recovery Unit (Service 2002, p. 64; Sogge and Durst 2008). Unlike most 
other Recovery Units, the Coastal California Unit possesses many 
streams in proximity to one another. However, most breeding sites are 
small (fewer than five territories); the largest populations occur 
along the San Luis Rey, Santa Margarita, and Santa Ynez Rivers (Service 
2002, p. 64). In 2001, all territories occurred in habitats dominated 
by native plants, and over 60 percent were on government-managed lands 
(Federal, State, and local) (Service 2002, p. 64). This Recovery Unit 
contains the Santa Ynez, Santa Clara, Santa Ana, and San Diego 
Management Units. The stream segments designated as critical habitat 
are described below under their appropriate Management Units.
    Based upon our occupancy criteria (see above) within the Coastal 
California Recovery Unit, the Santa Ynez (1991), Santa Clara (1994), 
and San Luis Rey (1993) Rivers, and Pilgrim Creek (1994) are streams 
that were within the geographical area known to be occupied at the time 
of listing (1991-1994) (Sogge and Durst 2008) where we are designating 
critical habitat segments. Below we identify that each listed item 
described in our Special Management Considerations or Protection 
section (see above) applies to the streams described in each Management 
Unit within the Coastal California Recovery Unit.
    Santa Ynez Management Unit, California
    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Santa Ynez Management Unit (Service 2002, p. 84). The Santa Ynez 
River is the only stream in this Management Unit known to have 
flycatcher territories (Sogge and Durst 2008).
    We identified a large flycatcher nesting population surrounding the 
lowest portion of the Santa Ynez River in Santa Barbara County, 
California. Flycatcher territories were detected on the Santa Ynez 
River in 1991 (Sogge and Durst 2008). A total of four breeding sites 
are known to occur within our large population area. A high of 26 
flycatcher territories was detected on the lower Santa Ynez River in 
1996, but the known number of territories has fluctuated greatly from 
year-to-year (from 1 to 26) (Sogge and Durst 2008). As a result, more 
critical habitat than just the large population area is expected to be 
needed to meet the Recovery Plan goal of 75 territories.
    To help reach the Recovery Plan goals, we identified two additional 
areas of flycatcher habitat on the upper Santa Ynez River that are 
considered occupied at the time of listing and a short segment of Mono 
Creek farther upstream outside of our large population area (near 
Gibraltar Reservoir) that was not occupied at the time of listing. As a 
result, we are designating three Santa Ynez River segments and a 
segment of Mono Creek as flycatcher critical habitat. The lower 42.3-km 
(26.3-mi) Santa Ynez River segment occurs immediately upstream from 
Vandenberg AFB. The upper 6.1-km (3.8-mi) and 7.6-km (4.7-mi) segments 
of the Santa Ynez River occur near Gibraltar Reservoir. We are also 
designating the lowest 2.6 km (1.6 mi) of Mono Creek, also in Santa 
Barbara County.
    The stream segments along the Santa Ynez River were occupied by 
flycatchers at the time of listing and contain the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, for the 
reasons described above. Mono Creek was not occupied at the time of 
listing, but is an essential area for flycatcher conservation in order 
to help meet recovery goals (see below).
    The Santa Ynez River and its tributaries (including Mono Creek and 
other unnamed tributaries) were described as having substantial 
recovery value in the Recovery Plan (Service 2002, p. 86). The Santa 
Ynez River and Mono Creek segments are anticipated to provide habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat are anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.
    A 14.7-km (9.1-mi) portion of the lower Santa Ynez River segment 
that was occupied at the time of listing and contains the physical or 
biological features essential to the conservation of the species which 
may require special management considerations or protection, occurs 
within the boundaries of Vandenberg AFB. We are exempting this portion 
of the river from designation as critical habitat, under section 
4(a)(3) of the Act, based on the implementation of their Integrated 
Natural Resources Management Plan (INRMP) which provides a benefit to 
the flycatcher (see Exemptions section below).
Santa Clara Management Unit, California
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Santa Clara Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers and sporadically over a 
broad area in this Management Unit.
    There are no large flycatcher nesting populations in the Santa 
Clara Management Unit to help guide us toward a critical habitat area. 
As a result, we sought known flycatcher territories and breeding sites, 
guidance from the Recovery Plan, and knowledge about stream habitat to 
determine critical habitat segments that may be within the geographical 
area known to be occupied at the time of listing and others essential 
for flycatcher conservation (see below). Flycatcher territories have 
been detected in small numbers in the Santa Clara Management Unit, 
ranging from zero to seven territories annually between 1995 and 2001 
(Sogge and Durst 2008). Three breeding sites have been detected on the 
Santa Clara River and two breeding sites each on Piru Creek and the San 
Gabriel River (Sogge and Durst 2008).
    We are designating as critical habitat a 75.2 km (46.7 mi) segment 
of the Santa Clara River in Ventura and Los Angeles Counties. These 
segments were within the geographical area known to be occupied by 
flycatchers at the time of listing (Sogge and Durst 2008) and have the 
physical or biological features essential to the conservation of the 
species which may require special management consideration or 
protection, for the reasons described above. We are also designating as 
flycatcher critical habitat segments of the Ventura River (27.5 km, 
17.1 mi) in Ventura County; and segments of Castaic Creek (4.8 km, 3.0 
mi), Piru Creek (41.9 km, 26.0 mi), Big Tujunga (4.9 km, 3.0 mi) 
Canyon, and the San Gabriel River (14.2 km, 8.8 mi) in Los Angeles 
County. These segments were not occupied at the time of listing, but 
are essential for flycatcher conservation in order to help meet 
recovery goals, as explained below.
    The Santa Clara, Ventura, and San Gabriel Rivers, Piru Creek and 
Big Tujunga Canyon, were identified in the

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Recovery Plan as having substantial recovery value in the Santa Clara 
Management Unit (Service 2002, p. 86). Together with Castaic Creek, 
these six stream segments are essential to flycatcher conservation 
because they are anticipated to provide habitat for metapopulation 
stability, gene connectivity through this portion of the flycatcher's 
range, protection against catastrophic population loss, and population 
growth and colonization potential. As a result, these river segments 
and associated flycatcher habitat are anticipated to support the 
strategy, rationale, and science of flycatcher conservation in order to 
meet territory and habitat-related recovery goals.
    Habitat along the Santa Clara River east of Interstate 5 (4.4 km, 
2.7 mi) with features essential for flycatcher conservation, owned and 
managed by Newall Land and Farming Company, is excluded from this 
critical habitat designation based upon the habitat management provided 
under a conservation easement (see Exclusions section below).
Santa Ana Management Unit, California
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Santa Ana Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected from the headwaters and tributaries of 
the Santa Ana River in the San Bernardino Mountains in San Bernardino 
County, California, down to breeding sites in Riverside County at Prado 
Basin and other nearby separate streams. None of the seven streams 
(eight stream segments) within the Santa Ana Management Unit were 
within the geographical area known to be occupied at listing; however, 
all seven streams have had territories identified since listing.
    We identified a large flycatcher nesting population that surrounds 
the Santa Ana River and its tributaries in San Bernardino and Riverside 
Counties. Because of the wide distribution and close proximity of 
flycatcher territories, nearly all the streams within the Santa Ana 
Management Unit were included in the large population area. A survey in 
2007 detected 30 breeding sites along the Santa Ana River (Durst et al. 
2008, p. 11). Since 1995, flycatcher territories have been detected 
along the Santa Ana River, and tributaries such as Bear Creek, Mill 
Creek, Oak Glen Creek, Waterman Creek, San Timoteo Creek, and Bautista 
Creek (Sogge and Durst 2008). While breeding sites are numerous, the 
number of territories detected at each site was typically less than 
five (Sogge and Durst 2008). Throughout the entire Management Unit, a 
high of 49 territories was detected in 2001 (Sogge and Durst 2008), but 
limited on-the-ground surveys only detected one territory in 2007 
(Sogge and Durst 2008). In 2007, Durst et al. (2008, p. 12) estimated 
that 28 territories occurred in this Management Unit. The combination 
of these streams provides riparian habitat for breeding, migrating, 
dispersing, non-breeding and territorial flycatchers, metapopulation 
stability, gene flow, connectivity, population growth, and prevention 
against catastrophic loss.
    The Santa Ana River is the single largest river system in southern 
California with flycatchers distributed throughout the stream from its 
headwaters and tributaries in the San Bernardino Mountains in San 
Bernardino County, downstream to Riverside County. We are designating 
three segments--an upper 42.5-km (26.4-mi) segment in the San 
Bernardino National Forest, a middle 13.4-km (8.3-mi) segment in San 
Bernardino County (just above the Riverside County line), and a lower 
1.9 km (1.2 mi) portion (consisting of about 4 separate parcels) 
located about 2.3 km (1.4 mi) northeast of Prado Basin flood control 
dam--of the Santa Ana River in San Bernardino County and other segments 
with high connectivity near its headwaters. In San Bernardino County we 
are designating 5.2 km (3.2 mi) of Waterman Creek (including portions 
of the Left and Right Fork), 14.7 km (9.2 mi) of Bear Creek, 4.1 km 
(2.6 mi) of San Timoteo Creek, 19.3 km (12.0 mi) of Mill Creek, and 4.7 
km (2.9 mi) of Oak Glen Creek as critical habitat.
    We are designating three segments of Bautista Creek on Federal 
Lands within the San Bernardino National Forest. The most eastern 
segment occurs for 2.0 km (1.3 mi), upstream of the Ramona Band of 
Cahuilla Reservation. West of tribal land is an 11.4-km (7.1-mi) stream 
segment that extends through the San Bernardino National Forest until a 
segment of private land occurs. West of this portion of private land is 
another San Bernardino National Forest segment that is 5.9 km (3.7 mi) 
long.
    Portions of the Santa Ana Watershed in Riverside County identified 
as being essential for flycatcher conservation (the lower Santa Ana 
River (including Prado Basin), San Timoteo Creek, and Bautista Creek) 
fall within the boundaries of the Western Riverside County Multiple 
Species Habitat Conservation Plan (Western Riverside County MSHCP). All 
non-Federal and tribal lands that fall within the Western Riverside 
County Multispecies Habitat Conservation Plan are being excluded from 
critical habitat designation under section 4(b)(2) of the Act (see 
Exclusions section below).
    Habitat with features essential for the flycatcher was also 
identified within the boundaries of the Ramona Band of Cahuilla 
Reservation on Bautista Creek. We are excluding these tribal lands from 
the critical habitat designation under section 4(b)(2) of the Act (see 
Exclusions section below).
    This diverse and widely distributed group of seven streams was 
identified in the Recovery Plan (although Oak Glen Creek was not 
specifically named as a tributary to the Santa Ana River) as areas of 
substantial recovery value (Service 2002, p. 86). Together, these 
stream segments are essential for flycatcher conservation because they 
are anticipated to provide habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and provide for population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
San Diego Management Unit, California
    The Recovery Plan describes a goal of 125 flycatcher territories in 
the San Diego Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected throughout this Management Unit 
primarily along the rivers and tributaries of the largest river 
drainages in the area, such as the San Luis Rey, Santa Margarita, and 
San Diego Rivers.
    We identified a large flycatcher nesting population that includes 
nearly all of the streams within the San Diego Management Unit. Within 
the San Diego Management Unit, about 24 breeding sites are known to 
occur (Durst et al. 2008, p. 12). A high of 86 flycatcher territories 
were detected in 2001 (Sogge and Durst 2008). In 2003, Durst et al. 
(2005, p. 10) estimated a total of 100 territories for the entire San 
Diego Management Unit, with 86 territories on San Luis Rey and Santa 
Margarita Rivers. In 2007, Durst et al. (2008, p. 11) estimated a total 
of 77 territories at 24 breeding sites for the entire San Diego 
Management Unit, with 69 territories at 12 breeding sites on these two 
river drainages.
    Within this large population area, we identified flycatcher habitat 
on 18 different streams within the San Diego Management Unit that occur 
in San Diego, Riverside, and Orange Counties, California. The streams 
we identified in San Diego County are: San Mateo Creek,

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Cristianitos Creek, San Onofre Creek, Las Flores Creek, Las Pulgas 
Creek, Fallbrook Creek, Santa Margarita River, DeLuz Creek, San Luis 
Rey River (two segments), Pilgrim Creek, Agua Hedionda Creek, San 
Dieguito River, Santa Ysabel Creek, San Diego River (two segments), 
Temescal Creek, and Sweetwater River. A segment of Temecula Creek 
travels across San Diego and Riverside Counties and a Ca[ntilde]ada 
Gobernadora Creek segment occurs in Orange County.
    The longest two streams in the San Diego Management Unit are the 
San Luis Rey and Santa Margarita Rivers, which contain the largest 
numbers of flycatcher territories within this Management Unit. In 
addition to these two streams, we are designating a collection of 
smaller streams within the Unit.
    We are designating a 9.3-km (5.8-mi) segment of the Santa Margarita 
River and a 3.3-km (2.1-mi) segment of De Luz Creek in San Diego 
County, upstream of Marine Corps Base, Camp Pendleton (Camp Pendleton). 
Territories have been detected on the Santa Margarita River on Camp 
Pendleton. The segment upstream from Camp Pendleton maintains a 
diversity of riparian vegetation used by dispersing and migrating 
flycatchers and the ability to develop breeding habitat for population 
growth or discovery of undetected territories.
    We are designating seven segments of the San Luis Rey River and a 
5-km (3.1-mi) segment of Pilgrim Creek in San Diego County. Four 
separate upper San Luis Rey segments of critical habitat occur upstream 
(7.4 km, 4.6 mi), between (0.8 km, 0.5 mi and 0.9 km, 0.6 mi), and 
downstream (3.1 km, 1.9 mi) of the La Jolla Band of Luise[ntilde]o 
Indians and the Rincon Band of Luise[ntilde]o Mission Indians tribal 
lands from Lake Henshaw downstream to the Puma Valley Country Club. The 
western most three segments of the San Luis Rey River (30.8 km, 19.1 
mi; 5.1 km; 3.2 mi; and 8.5 km, 5.3 mi) occur surrounding the Pala Band 
of Luise[ntilde]o Mission Indians tribal lands from Interstate 5 
upstream to the Puma Valley Country Club. Flycatcher breeding sites 
have been detected since 1991 on Pilgrim Creek and the San Luis Rey 
River. Durst et al. (2008, p. 11) reported 55 territories from the San 
Luis Rey River drainage. A 2007 survey of Pilgrim Creek did not 
identify any territories (Durst et al. 2008, p. 28).
    We are designating a segment of Agua Hedionda Creek, which include 
small portions of the right and left forks. The upstream forks extend 
from La Mirada Drive (right fork) (0.4 km, 0.2 mi) and Sycamore Avenue 
(left fork) (1.0 km, 0.6 mi) and then downstream along the mainstem 
Agua Hedionda Creek for 2.5 km (1.6 mi). A single breeding site and 
flycatcher territory was detected on Agua Hedionda Creek in 1998 and 
1999 (Sogge and Durst 2008). The segments of Agua Hedionda Creek were 
not within the geographical area known to be occupied at the time of 
listing, but are essential for conservation in order to meet recovery 
goals.
    We are designating joining segments of Temescal Creek (7.6 km, 4.7 
mi) and Santa Ysabel River (6.5 km, 4.0 mi) in San Diego County. Both 
segments are found upstream of known breeding sites (within areas that 
were proposed as critical habitat but are being excluded from the 
revised final designation). These two upstream segments currently 
provide habitat for dispersing and migrating flycatchers and locations 
for population growth or discovery of undetected territories.
    We are designating a 5.2-km (3.2-mi) segment of Temecula Creek in 
San Diego County. Two breeding sites are known from Temecula Creek, 
with one occurring on the designated segment. Territories were first 
detected in 1997, and Sogge and Durst (2008) reported a single 
territory for 2003. A 2007 survey of Temecula Creek did not identify 
any territories (Sogge and Durst 2008).
    On the San Diego River north of the El Capitan Reservoir, we are 
designating a 3.8-km (2.4-mi) segment downstream and 2.2-km (1.4-mi) 
segment upstream of land (proposed but excluded from flycatcher 
critical habitat) that is jointly managed by the Barona Group of 
Capitan Grande Band of Mission Indians and the Viejas (Baron Long) 
Group of Capitan Grande Band of Mission Indians. Territories in this 
stream were not identified at listing, but two territories were 
detected in 2001 (USGS 2007).
    Proposed critical habitat on the San Dieguito River, San Diego 
River, non-Federal lands on the Sweetwater River, and a portion of 
Santa Ysabel Creek within the boundaries of the San Diego County MSCP 
are being excluded from this critical habitat designation under section 
4(b)(2) of the Act. However, we are designating 4.5 km (2.8 mi) of 
federally owned lands on the Sweetwater River within the boundaries of 
the San Diego County MSCP (see Exclusions section below).
    Proposed critical habitat on Agua Hedionda Creek identified within 
the boundaries of the City of Carlsbad's Habitat Management Plan is 
being excluded from this critical habitat designation under section 
4(b)(2) of the Act (see Exclusions section below).
    Proposed critical habitat on Ca[ntilde]ada Gobernadora Creek 
identified within the boundaries of the Orange County Southern Subarea 
Plan is being excluded from this critical habitat designation under 
section 4(b)(2) of the Act (see Exclusions section below).
    Proposed critical habitat on the San Luis Rey River was identified 
within the boundaries of tribal lands of the Pala Band of 
Luise[ntilde]o Mission, Rincon Band of Luise[ntilde]o Mission Indians, 
and La Jolla Band of Luise[ntilde]o Indians. We are excluding these 
tribal lands from the critical habitat designation under section 
4(b)(2) of the Act (see Exclusions section below).
    Proposed critical habitat on the San Diego River was identified 
within the boundaries of tribal lands of the Barona Group of Capitan 
Grande Band of Mission Indians and the Viejas (Baron Long) Group of 
Capitan Grande Band of Mission Indians of the Capitan Grande Band of 
Diegueno Mission Indians. We are excluding these tribal lands from the 
critical habitat designation under section 4(b)(2) of the Act (see 
Exclusions section below).
    Critical habitat considered within the boundaries of Marine Corps 
Base, Camp Pendleton on Cristianitos Creek, San Mateo Creek, San Onofre 
Creek, Los Flores/Las Pulgas Creek, Pilgrim Creek, DeLuz Creek, and the 
Santa Margarita River was exempted from this critical habitat 
designation (76 FR 50542, August 15, 2011, p. 50579). Critical habitat 
considered on portions of the Santa Margarita River located within the 
boundaries of the Seal Beach Naval Weapons Station, Fallbrook 
Detachment was also exempted from this critical habitat designation (76 
FR 50542, August 15, 2011, p. 50580) (see Exemptions section below).
    The San Luis Rey River and Pilgrim Creek are the only streams in 
this management unit within the geographical area known to be occupied 
by flycatchers at the time of listing. The remaining critical habitat 
stream segments will help reach flycatcher recovery goals within the 
San Diego Management Unit. Collectively, these segments contain 
essential features for breeding, non-breeding, territorial, migrating, 
and dispersing flycatchers and help provide metapopulation stability, 
population growth, gene flow, connectivity, and protection against 
catastrophic losses.
Basin and Mojave Recovery Unit
    The Basin and Mojave Recovery Unit is comprised of a broad 
geographic area including the arid interior lands of southern 
California and a small portion of extreme southwestern Nevada. In

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2002, there were a total of 69 known flycatcher territories estimated 
to occur (7 percent of the rangewide total), but have declined to an 
estimated 51 territories in 2007 (Durst et al. 2008. p.12). With the 
exception of breeding sites on the Owens and Kern Rivers, all known 
breeding sites have fewer than five territories (Service 2002, p.64). 
As of 2002, all flycatcher territories were in riparian habitats 
dominated by native plants, and approximately 70 percent are on 
privately owned lands (Service 2002, p. 64). Because there has been 
little change in the amount of known flycatcher breeding sites since 
completion of the Recovery Plan and the number of estimated territories 
has declined, flycatcher habitat use and land ownership are likely 
similar today. The Recovery Unit contains the Owens, Kern, Mojave, 
Salton, and Amargosa Management Units.
    Based upon our occupancy criteria (see above), within the Basin and 
Mojave Recovery Unit, the South Fork Kern (1993) and Owens Rivers 
(1993) are streams that were within the geographical area known to be 
occupied at the time of listing (1991-1994) (Sogge and Durst 2008). 
Below we identify that each listed item described in our Special 
Management Considerations or Protection section (see above) applied to 
the streams described in each Management Unit within the Basin and 
Mojave Recovery Unit.
Owens Management Unit, California
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Owens Management Unit (Service 2002, p. 84). The Owens River is the 
only stream in the Management Unit known to have flycatcher territories 
and is the most northern in the Basin and Mojave Recovery Unit.
    We identified a large flycatcher nesting population along the Owens 
River within Mono and Inyo Counties, California. Nesting flycatchers 
have been detected at four sites within this area, with a high of 29 
territories detected in 1999 (Sogge and Durst 2008). Within this large 
population area, we proposed as critical habitat a 128.5-km (79.9-mi) 
continuous segment of the Owens River (from Long Valley Dam to just 
north of Tinemaha Reservoir).
    This segment of the Owens River is within the geographical area 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to the 
conservation of the species, which may require special management 
considerations or protection, for the reasons described above.
    The Owens River is the only stream identified in the Recovery Plan 
as having substantial recovery value within the Owens Management Unit 
(Service 2002, p. 88). The Owens River segment is anticipated to 
provide habitat for metapopulation stability, gene connectivity through 
this portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, this river segment and associated flycatcher habitat is 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    The flycatcher habitat essential for conservation identified along 
the Owens River is being managed by the Los Angeles Department of Water 
and Power (LADWP) and is being conserved through implementation of 
their Southwestern Willow Flycatcher Conservation Strategy. LADWP 
entered into a Memorandum of Understanding with the Service to 
implement these conservation actions. As a result, the entire 128.5-km 
(79.8-mi) Owens River, in Inyo and Mono Counties, California, is being 
excluded from this critical habitat designation (see Exclusions section 
below).
Kern Management Unit, California
    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Kern Management Unit (Service 2002, p. 84). The South Fork Kern 
River and Canebrake Creek within Kern County, California, are the only 
streams known to have flycatcher territories within this Management 
Unit.
    We identified a large flycatcher nesting population along the lower 
portion of the South Fork Kern River. Flycatchers were first detected 
nesting on the South Fork Kern River in 1993 and have been detected 
annually through at least 2007 (Sogge and Durst 2008). A high of 38 
territories were detected in 1997 within this Management Unit (Sogge 
and Durst 2008). The South Fork Kern River is within the geographical 
area known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to the 
conservation of the species, which may require special management 
considerations or protection, as described above.
    Because of the need to increase the abundance of flycatcher 
territories to reach recovery goals in the Kern Management Unit, we 
also identified a small portion of Canebrake Creek in Kern County 
within our large population areas as being essential to flycatcher 
conservation. Canebrake Creek (a tributary to the South Fork Kern 
River) was not within the geographical area known to be occupied at the 
time of listing, but territories were detected in 1998 (Sogge and Durst 
2008).
    We are designating as critical habitat a 23.6-km (14.6-mi) portion 
of the South Fork Kern River (including the upper 1.0-km (0.6-mi) 
portion of Lake Isabella) and a 1.7-km (1.0-mi) segment of Canebrake 
Creek in Kern County, California. Along this segment of the South Fork 
Kern River, two pieces of private land that are woven within this 
segment, the Hafenfeld Ranch (0.30 km, 0.20 mi of stream on the south 
side of the river) and Sprague Ranch (4.0 km, 2.5 mi on north side of 
the river), are being excluded from the final designation (see below 
and Exclusions section).
    The South Fork Kern River segment was the lone segment identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 88). The South Fork Kern River and the 
additional Canebrake Creek segment are important for flycatcher 
conservation because they are anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    Flycatcher habitat on the Hafenfeld Ranch along the South Fork of 
the Kern River is being excluded under section 4(b)(2) of the Act due 
to a conservation easement established with the National Resource 
Conservation Service (NRCS) specific to protecting flycatcher habitat. 
As a result of the habitat protections provided through this easement, 
this property is being excluded from this critical habitat designation 
(see Exclusions section below).
    Flycatcher habitat on the Sprague Ranch along the South Fork of the 
Kern River is being excluded under section 4(b)(2) of the Act due to 
protections assured by their long-term commitments to management 
programs specific to the riparian habitat and needs of the flycatcher. 
The Sprague Ranch was acquired specifically for flycatcher conservation 
and is co-managed by the Corps, the California Department of Fish and 
Game (CDFG), and the National

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Audubon Society (Audubon) (see Exclusions section below).
Mojave Management Unit, California
    The Recovery Plan describes a goal of 25 territories in the Mojave 
Management Unit (Service 2002, p. 84). The Mojave River and Holcomb 
Creek are the only streams known to have flycatcher territories within 
the Mojave Management Unit (Sogge and Durst 2008).
    There are no large flycatcher nesting populations in the Mojave 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on currently known 
flycatcher territories and breeding sites, guidance from the Recovery 
Plan, and knowledge about stream habitat to determine areas essential 
for flycatcher conservation.
    Flycatchers were first detected nesting on the Mojave River in 1995 
and Holcomb Creek in 1999. A total of five breeding sites occur along 
the Mojave River and one site at Holcomb Creek (Sogge and Durst 2008). 
A high of 12 territories were detected at these breeding sites in 2001 
(Sogge and Durst 2008). In addition, we found additional areas that 
would contribute to meeting recovery goals in the West Fork Mojave 
River and Deep Creek.
    We are designating as flycatcher critical habitat a 35.7-km (22.2-
mi) segment of the Mojave River, an 11.2-km (6.9-mi) segment of the 
West Fork Mojave River, a 19.6-km (12.2-mi) segment of Holcomb Creek, 
and a 20.0-km (12.5-mi) segment of Deep Creek (including Mojave River 
Forks Reservoir) in San Bernardino County, California, near the Town of 
Victorville. Deep Creek connects Holcomb Creek with the Mojave Forks 
Reservoir. All of these segments were not within the geographical area 
known to be occupied at the time of listing, but are essential for 
flycatcher conservation because they will help meet recovery goals.
    Three of these streams (Mojave River, West Fork Mojave River, and 
Deep Creek) were identified as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 88). Holcomb Creek was not specifically 
identified in the Recovery Plan, but since flycatcher territories have 
been detected there we find it also important to meet recovery goals. 
Together, these four critical habitat segments are essential to 
flycatcher conservation because they are anticipated to provide habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat are anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.
Salton Management Unit, California
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Salton Management Unit (Service 2002, p. 84). A single known 
flycatcher breeding site occurs along San Felipe Creek in this 
Management Unit.
    There are no large flycatcher nesting populations solely in the 
Salton Management Unit, and no areas were within the geographical area 
known to be occupied at the time of listing. However, portions of the 
Salton Management Unit were part of a large population area because of 
the proximity of flycatcher territories in the adjacent San Diego and 
Santa Ana Management Units. Therefore, to identify the areas that would 
contribute to meeting recovery goals for this Management Unit, we used 
information based on currently known flycatcher territories and 
breeding sites, guidance from the Recovery Plan, and knowledge about 
stream habitat to determine areas essential for flycatcher conservation 
(see below). From 1998 to 2002, flycatcher territories were detected in 
small numbers (2 to 4 territories) at single breeding site on San 
Felipe Creek within this Management Unit (Sogge and Durst 2008).
    We are designating as flycatcher critical habitat a 19.7-km (12.3-
mi) segment of San Felipe Creek and a short 0.9-km (0.6 mi) segment of 
Mill Creek in San Diego County, California. This short portion of Mill 
Creek is connected to the Mill Creek segment within the Santa Ana 
Management Unit. We find that both of the segments are essential for 
flycatcher conservation because they will help meet recovery goals.
    Although the San Felipe Creek segment proposed as critical habitat 
was the only river segment identified in the Recovery Plan as having 
substantial recovery value (Service 2002, p. 88), the additional Mill 
Creek segment was identified within the Santa Ana Management Unit as 
having substantial recovery value (Service 2002, p.88). As a result, 
the San Felipe and Mill Creek segments, along with the other 
populations and river segments in proximity within the adjacent San 
Diego and Santa Ana Management Units are essential to flycatcher 
conservation because they are anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, these 
river segments and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    A small portion of San Felipe Creek (1.6 km, 1.0 mi) that occurs 
within the Iipay Nation of Santa Ysabel, California (formerly the Santa 
Ysabel Band of Diegueno Mission Indians of the Santa Ysabel 
Reservation), was identified as having features essential to the 
flycatcher. Because of our partnership with the Tribe toward 
conservation of flycatcher habitat, the portion of San Felipe Creek 
that occurs on the Iipay Nation lands is being excluded from the final 
critical habitat designation under section 4(b)(2) of the Act (see 
Exclusions section below).
Amargosa Management Unit, California and Nevada
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Amargosa Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers within this Management 
Unit.
    There are no large flycatcher nesting populations in the Amargosa 
Management Unit to help guide us toward a critical habitat area, and no 
areas were within the geographical area known to be occupied at the 
time of listing. Therefore, to identify the areas that would contribute 
to meeting recovery goals for this Management Unit, we used information 
based on currently known flycatcher territories and breeding sites, 
guidance from the Recovery Plan, and knowledge about stream habitat to 
determine areas essential for flycatcher conservation (see below).
    Within the Amargosa Management Unit, one breeding site has been 
detected on the Amargosa River and two breeding sites are known within 
the Ash Meadows NWR (Sogge and Durst 2008). From 1998 to 2007, one to 
seven territories were detected at these breeding sites within this 
Management Unit (Sogge and Durst 2008). Therefore, we sought additional 
areas for critical habitat that could contribute to recovery goals in 
this Management Unit.
    We refined our proposal within the Amargosa Management Unit in our 
July 12, 2012 (77 FR 41147), Notice of

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Availability, by identifying five specific stream segments and their 
management within the Ash Meadows NWR, in Nye County, Nevada. These 
areas were not within the geographical area known to be occupied by the 
flycatcher at the time of listing.
    We are designating as flycatcher critical habitat five areas on the 
Ash Meadows NWR in Nye County, Nevada: Soda Spring segment (0.5 km, 0.3 
mi); Lower Fairbanks segment (0.8 km, 0.5 mi); Crystal Reservoir 
segment (0.5 km, 0.3 mi); North Tubbs segment (0.2 km, 0.1 mi); and 
South Tubbs segment (0.4 km, 0.2 mi). We are also designating segments 
of the Amargosa River (12.3 km, 7.7 mi) and Willow Creek (3.5 km, 2.2 
mi) in Inyo and San Bernardino Counties, California. No known breeding 
sites have yet to be detected on the Amargosa River and Willow Creek 
segments in California. None of the segments were within the 
geographical area known to be occupied at the time of listing.
    The Ash Meadows NWR and the Amargosa River in California, were 
described in the Recovery Plan as having substantial recovery value 
(Service 2002, p. 88). Willow Creek was also determined to be essential 
in order to reach recovery goals in this Management Unit. Together, 
these segments are essential to flycatcher conservation because they 
are anticipated to provide habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
Lower Colorado Recovery Unit
    This is a geographically large and ecologically diverse Recovery 
Unit, encompassing the Colorado River and its major tributaries (such 
as the Virgin, Pahranagat, Muddy, and Little Colorado Rivers) from the 
high-elevation streams in White Mountains of East-Central Arizona and 
Central Western New Mexico to the mainstem Colorado River through the 
Grand Canyon downstream through the arid lands along the LCR to the 
Mexico border (Service 2002, p. 64).
    In 2002, despite its size, the Lower Colorado Recovery Unit had 
only 127 known flycatcher territories (11 percent of the rangewide 
total), most of which occur away from the mainstem Colorado River 
(Sogge et al. 2003, p. 10). In 2007, 150 territories were estimated to 
occur within this Recovery Unit (also 11 percent of the rangewide 
total) (Durst et al. 2008, p. 12). Most sites included fewer than 5 
territories; the largest populations (most of which are fewer than 10 
territories) are found on the Bill Williams, Virgin, and Pahranagat 
Rivers (Service 2002, p. 64). Approximately 69 percent of territories 
are found on government-managed lands and 8 percent are on tribal lands 
(Service 2002, p. 64). Habitat characteristics range from purely native 
(including high-elevation and low-elevation willow) to exotic 
(primarily tamarisk)-dominated stands (Service 2002, p. 64). Because of 
the similarity in abundance and distribution of territories since 2002, 
these land ownership and habitat-use statistics are likely similar 
today. This Recovery Unit contains the Little Colorado, Middle 
Colorado, Virgin, Pahranagat, Bill Williams, Hoover to Parker Dam, and 
Parker Dam to Southerly International Border Management Units.
    Based upon our occupancy criteria (see above), within the Lower 
Colorado Recovery Unit, the Colorado (1993), Little Colorado (1993), 
Bill Williams (1994), Big Sandy (1994), Santa Maria (1994), and Zuni 
(1993) Rivers, and Rio Nutria (1993) are streams that were within the 
geographical area known to be occupied at the time of listing (1991-
1994) (Sogge and Durst 2008) where we proposed critical habitat 
segments. At the time of listing only specific sites on the Colorado 
River within the Middle Colorado Management Unit were known to be 
specifically occupied with territories, but based upon our criteria and 
the wide-ranging nature of this bird as a neotropical migrant and its 
use of migration stop-over habitat, we also consider the Colorado River 
within the Hoover to Parker Dam and Parker Dam to Southerly 
International Border Management Units occupied at the time of listing. 
Below we identify that each listed item described in our Special 
Management Considerations or Protection section (see above) applies to 
the streams described in each Management Unit within the Lower Colorado 
Recovery Unit.
Little Colorado Management Unit, Arizona and New Mexico
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Little Colorado Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected on the Little Colorado and Zuni Rivers 
and Rio Nutria within this large area along the New Mexico and Arizona 
border (Sogge and Durst 2008).
    We identified a large flycatcher nesting population surrounding the 
Little Colorado River, near the Town of Greer in Apache County, 
Arizona. Flycatcher territories have been detected along the Little 
Colorado River, Zuni River, and Rio Nutria since 1993. A high of 16 
territories were detected on these river segments in 1996, but known 
territories have declined, with only two and six territories detected 
in 2005 and 2006, respectively (Sogge and Durst 2008). Because of the 
need to increase the abundance of flycatcher territories to reach 
recovery goals, we also identified the Zuni River and Rio Nutria in 
McKinley County, New Mexico, and the West Fork Little Colorado River, 
in Apache County, Arizona. No flycatcher territories are known from the 
West Fork Little Colorado River.
    We are designating as flycatcher critical habitat a contiguous 8.8-
km (5.5-mi) segment of the West Fork Little Colorado River and a 17.6-
km (10.9-mi) segment of the Little Colorado River. This West Fork and 
Little Colorado River segment begins where USFS (Forest Service) Road 
113 crosses the West Fork and extends downstream to its confluence with 
the Little Colorado River, through the Town of Greer, and ends at the 
Diversion Ditch. The Little Colorado River was within the geographical 
area known to be occupied at the time of listing, and contains the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection, as described above. The West Fork Little Colorado River is 
not within the geographical area known to be occupied at the time of 
listing, but is essential to flycatcher conservation of the flycatcher 
in order to meet recovery goals, as described above.
    The Little Colorado River and the West Fork Little Colorado River 
segments were identified in the Recovery Plan as areas with substantial 
recovery value (Service 2002, p. 89). These two stream segments are 
anticipated to provide habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    Proposed segments along the Rio Nutria (55.4 km, 34.4 mi) and Zuni 
River (35.8 km, 22.2 mi), occurring on

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Zuni Pueblo in New Mexico, are within the geographical area known to be 
occupied by flycatchers at the time of listing, and contain the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection. Because of our partnership with Zuni Pueblo toward wildlife 
conservation, and their development, completion, and implementation of 
actions described in their Flycatcher Management Plan, we have excluded 
the Rio Nutria and Zuni River stream segments that occur on Zuni Pueblo 
under section 4(b)(2) of the Act (see Exclusions section below).
Virgin Management Unit, Utah, Arizona and Nevada
    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Virgin Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected along a broad area of the Virgin River 
within this Management Unit through the States of Utah, Arizona, and 
Nevada (Sogge and Durst 2008).
    We identified a large flycatcher nesting population along an 
essential segment of the Virgin River where it occurs through 
Washington County, Utah; Mohave County, Arizona; and Clark County, 
Nevada. Flycatchers were first detected nesting on this portion of the 
Virgin River in 1995. A total of seven breeding sites have been 
detected within this large population area through 2007 (Durst et al. 
2008, p. 12). Also, a high of 43 territories were estimated to occur 
within this Management Unit in 2007 (Durst et al. 2008, p. 12), most 
occurring within the State of Nevada, although territories are also 
known along the Virgin River in Utah and Arizona.
    We are designating as flycatcher critical habitat a 152.0-km (94.4-
mi) segment (total length) of the Virgin River that begins at Berry 
Springs in Washington County, Utah, continues 47.5 km (29.5 mi) through 
the State of Utah, then extends 56.0 km (34.8 mi) through the Town of 
Littlefield and the State of Arizona, and then 48.4 km (30.0 mi) 
through the State of Nevada until it ends at Colorado River Mile 280 at 
the upper end of Lake Mead, Clark County, Nevada. This segment is not 
within the geographical area known to be occupied at the time of 
listing, but is being designated as critical habitat because it is 
essential for flycatcher conservation in the Virgin River Management 
Unit in order to meet recovery goals.
    The Virgin River was identified as having substantial recovery 
value in the Recovery Plan (Service 2002, p. 89). This essential 
segment of the Virgin River we are designating as critical habitat 
within the Virgin River Management Unit is anticipated to provide 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, this river segment and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
Middle Colorado Management Unit, Arizona
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Middle Colorado Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the lower 
portion of the Colorado River within the Grand Canyon (including upper 
Lake Mead) in Mohave County, Arizona. Flycatchers were first detected 
nesting along the Colorado River within the Middle Colorado Management 
Unit in 1993. A total of 16 breeding sites have been detected in our 
selected segment through 2007. Also, a high of 16 territories was 
detected within this Management Unit in 1998 (Sogge and Durst 2008), 
but has declined to an estimated 4 territories in 2007 (Durst et al. 
2008, p. 12).
    We proposed as critical habitat a 74.1-km (46.0-mi) segment of the 
Colorado River that extends from the middle of Lake Mead upstream to 
Colorado River Mile 243. This entire segment is within the full pool 
elevation of Lake Mead. The Colorado River in Mohave County, Arizona, 
is within the geographical area known to be occupied by flycatchers at 
the time of listing, and contains the physical or biological features 
essential to the conservation of the species which may require special 
management considerations or protection, as described above.
    This Middle Colorado River segment was identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 89). 
The portion of the Colorado River we proposed as critical habitat, 
within the Middle Colorado Management Unit, is anticipated to provide 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, this river segment and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    The conservation space of Lake Mead and the Colorado River 
immediately upstream is within the planning area of the LCR Multi-
Species Conservation Plan (LCR MSCP) up to full pool elevation of Lake 
Mead. The full pool elevation is defined by water surface elevation 
1,229 feet National Geodetic Vertical Datum, which extends up to near 
river mile 235 at Separation Canyon. The Hualapai Nation, which also 
occurs within this segment, is also within the planning area of the LCR 
MSCP. The Nation developed, completed, and is implementing actions 
described in their Flycatcher Management Plan. As a result of the upper 
portion of Lake Mead and the Colorado River through river mile 235 
being included in the planning area of the LCR MSCP, this entire 
segment is being excluded from this critical habitat designation under 
section 4(b)(2) of the Act (see Exclusions section below).
Pahranagat Management Unit, Nevada
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Pahranagat Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Pahranagat River and the Muddy River. Flycatchers were first detected 
nesting on these portions of the Pahranagat and Muddy Rivers in 1997. 
Through 2007, a total of three breeding sites were known to occur 
within these segments, with a high of 38 territories detected in 2006 
(Sogge and Durst 2008).
    We are designating as flycatcher critical habitat a 3.6-km (2.3-mi) 
segment of the Pahranagat River through the Pahranagat NWR in Nye 
County, Nevada. This segment is not within the geographical area known 
to be occupied at the time of listing, but is being designated as 
critical habitat because it is essential for flycatcher conservation in 
order to meet recovery goals in the Pahranagat Management Unit.
    The Pahranagat River segment was identified as having substantial 
recovery value in the Recovery Plan (Service 2002, pp. 89-90). This 
essential river segment we are designating as critical habitat within 
the Pahranagat Management Unit is anticipated to provide habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat is anticipated to

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support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
    The Pahranagat River (2.5 km, 1.6 mi and 1.4 km, 0.9 mi) segments 
within the Key Pittman State Wildlife Area in Lincoln County and the 
3.1-km (1.9-mi) Muddy River segment within the boundaries of the 
Overton State Wildlife Area in Clark County, Nevada, were also 
identified as being essential to flycatcher conservation. As a result 
of the State of Nevada's management of the Key Pittman and Overton 
State Wildlife Areas for wildlife and riparian habitat for the 
flycatcher, both of these proposed segments in this Management Unit are 
being excluded from this designation under section 4(b)(2) of the Act 
(see Exclusions section below).
Bill Williams Management Unit, Arizona
    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Bill Williams Management Unit (Service 2002, p. 84). Flycatcher 
territories are distributed across a broad area of the Bill Williams 
Management Unit.
    We identified a large flycatcher nesting population in the Bill 
Williams Management Unit. It encompasses areas along the Big Sandy 
River near the Town of Wikieup in Mohave County; the Big Sandy, Santa 
Maria, and Bill Williams Rivers at the upper end of Alamo Lake in La 
Paz County; and along the Bill Williams River between Alamo Dam and the 
Colorado River in La Paz and Mohave Counties. Flycatchers were first 
detected nesting on the Big Sandy, Santa Maria, and Bill Williams 
Rivers in 1994 (Sogge and Durst 2008). Through 2007, a total of 9 
breeding sites occurred within these segments with a high of 61 
territories detected in 2004 (Sogge and Durst 2008). Since 2007, an 
additional breeding site was discovered on the upper Big Sandy River 
and an additional two sites discovered along the Bill Williams River.
    We are designating as flycatcher critical habitat a 35.3-km (21.9-
mi) segment of the upper Big Sandy River from the Town of Wikieup to 
Groom Peak Wash in La Paz County, Arizona. At upper Alamo Lake where 
the Big Sandy (9.6 km, 6.0 mi), Santa Maria (8.4 km, 5.2 mi), and Bill 
Williams Rivers (5.4 km, 3.3 mi) converge, we are designating 
collectively, a 23.4-km (14.5-mi) portion of these three streams in La 
Paz County. Between Alamo Dam and the Colorado River, we are 
designating as critical habitat a 17.8-km (11.0-mi) segment of the Bill 
Williams River near Lincoln Ranch in La Paz and Mohave Counties, 
Arizona. Also below Alamo Dam, closer to the Colorado River, we are 
designating as critical habitat a 12.4 km (7.7 mi) of the Bill Williams 
River from Caste[ntilde]eda Wash downstream of Planet Ranch to the 
middle of the Bill Williams NWR, where it meets the boundary of the LCR 
MSCP planning area. All of these areas are within the geographical area 
known to be occupied by flycatchers at the time of listing, and contain 
the physical or biological features essential for the conservation of 
the species which may require special management considerations or 
protection, as described above.
    The Big Sandy, Santa Maria, and Bill Williams Rivers were 
identified as having substantial recovery value in the Recovery Plan 
(Service 2002, p. 90). These river segments we are designating within 
the Bill Williams Management Unit are anticipated to provide habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat is anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.
    An 8.9-km (5.6-mi) section of the lower Bill Williams River within 
the Bill Williams River NWR is also within the geographical area known 
to be occupied by flycatchers at the time of listing, and contains the 
physical or biological features essential to the conservation of the 
species, which may require special management considerations or 
protection. This portion of the Bill Williams River occurs within the 
planning area of the LCR MSCP. As a result of the conservation provided 
the flycatcher within the LCR MSCP planning area, this portion of the 
Bill Williams River is being excluded from this critical habitat 
designation under section 4(b)(2) of the Act (see Exclusions section 
below).
Hoover to Parker Dam Management Unit, Arizona and California
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Hoover to Parker Dam Management Unit (Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Colorado River (and a small portion of the Bill Williams River) within 
Mohave and La Paz Counties, Arizona, and San Bernardino County, 
California. Flycatchers were first detected on this portion of the 
Colorado River in 1995 (Sogge and Durst 2008). Through 2007, a total of 
6 breeding sites occurred within this segment (Durst 2008, p. 12) with 
a high of 34 territories detected in 2004 (Sogge and Durst 2008).
    These segments of the Colorado River and Bill Williams River were 
identified as having substantial recovery value in the Recovery Plan 
(Service 2002, p. 90). These river segments are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
    These segments of the Colorado River (107.0 km, 66.4 mi) and Bill 
Williams River (1.7 km, 1.0 mi) are within the geographical area known 
to be occupied by flycatchers at the time of listing, and contain the 
physical or biological features essential to the conservation of the 
species, which may require special management considerations or 
protection. The entirety of the segments proposed as flycatcher 
critical habitat occur within the planning area of the LCR MSCP. The 
Fort Mojave and Chemehuevi Tribes also occur within this segment and 
are also within the planning area of the LCR MSCP. These tribes have 
developed, completed, and are implementing actions described in their 
Flycatcher Management Plans. As a result of the flycatcher conservation 
occurring along the Colorado River and Bill Williams River as a result 
of being included within the planning area of the LCR MSCP, these 
entire segments are being excluded from this critical habitat 
designation under section 4(b)(2) of the Act (see Exclusions section 
below).
Parker Dam to Southerly International Border Management Unit, Arizona 
and California
    The Recovery Plan describes a goal of 150 flycatcher territories in 
the Parker Dam to Southerly International Border Management Unit 
(Service 2002, p. 84).
    We identified a large flycatcher nesting population along the 
Colorado River within La Paz and Yuma Counties, Arizona, and San 
Bernardino, Riverside, and Imperial Counties, California. Flycatcher 
territories were first detected on this portion of the Colorado River 
in 1995 (Sogge and Durst 2008). Through 2007, a total of 16 breeding 
sites occurred within this Management Unit (Durst 2008, p.12), with a 
high of 15

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territories detected in 1996 (Sogge and Durst 2008). In 2007, it was 
estimated that only one territory occurred within this Management Unit 
(Sogge and Durst 2008).
    This segment of the Colorado River was identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 90). 
This portion of the LCR is anticipated to provide flycatcher habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
this portion of the LCR and associated flycatcher habitat is 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    The LCR within the Parker to Southerly International Border 
Management Unit is within the geographical area known to be occupied by 
flycatchers at the time of listing, and contains the physical or 
biological features essential to flycatcher conservation which may 
require special management considerations or protection. The entirety 
of the segments proposed as flycatcher critical habitat occurs within 
the planning area of the LCR MSCP. The Colorado Indian and Quechan 
(Fort Yuma) tribal lands occur within these segments and are also 
within the planning area of the LCR MSCP. These tribes have developed, 
completed, and are implementing actions described in their Flycatcher 
Management Plans. As a result of the flycatcher conservation occurring 
along the Colorado River from being included within the planning area 
of the LCR MSCP, these segments are being excluded from this critical 
habitat designation under section 4(b)(2) of the Act (see Exclusions 
section below).
Upper Colorado Recovery Unit
    The Upper Colorado Recovery Unit is comprised of a broad geographic 
area covering much of the Four Corners area of southeastern Utah and 
southwestern Colorado, with smaller portions of northwestern Arizona 
and northeastern New Mexico. Ecologically, this area may be an 
intergradation area between the southwestern willow flycatcher 
subspecies and the Great Basin willow flycatcher subspecies (Service 
2002, p. 64). Flycatchers are only known to breed at five breeding 
sites across this broad Recovery Unit, representing an estimated high 
of 10 territories occurring in 2007 (Durst et al. 2008, p.13). However, 
this low number of breeding sites and territories (less than 1 percent 
of the rangewide total) is probably a function of relatively low survey 
effort rather than an accurate reflection of the bird's actual numbers 
and distribution (Service 2002, p. 64). Much willow riparian habitat 
occurs along drainages within this Recovery Unit and remains to be 
surveyed (Service 2002, p. 64). The Upper Colorado Recovery Unit 
contains the Powell and San Juan Management Units.
    Based upon our occupancy criteria (see above), within the Upper 
Colorado Recovery Unit, no streams were known to be occupied at the 
time of listing (1991-1994) (Sogge and Durst 2008). Below we identify 
that each listed item described in our Special Management 
Considerations or Protection section (see above) applies to the streams 
described in each Management Unit within the Upper Colorado Recovery 
Unit.
San Juan Management Unit, Colorado, New Mexico, Arizona, and Utah
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the San Juan Management Unit (Service 2002, p. 84). Flycatcher 
territories have been detected in small numbers over a broad area of 
the southwestern Colorado and northwestern New Mexico within the 
Management Unit.
    There were no large flycatcher nesting populations in the San Juan 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on known flycatcher 
territories and breeding sites, guidance from the Recovery Plan, and 
knowledge about stream habitat to determine critical habitat segments 
that may be essential for flycatcher conservation (see below). In 2007, 
10 territories were estimated to occur (within a total of 3 breeding 
sites) along the Los Pinos River in southwestern Colorado in La Plata 
County, Colorado, and along the San Juan River in San Juan County, New 
Mexico (Durst et al. 2008, p. 13). Through 2007, no known breeding 
sites have yet to be detected in the Utah portion of this Management 
Unit (Sogge and Durst 2008).
    Following our August 15, 2011, proposal, we reevaluated the Los 
Pinos River segment following further habitat analysis (Ireland, T. 
2012, entire) and determined that the upper portion of this stream 
contained habitat, vegetation, and features that do not support 
flycatcher habitat. As a result, this reduced the overall length of the 
Los Pinos River that we considered essential for flycatcher 
conservation and were considering for flycatcher critical habitat (see 
Summary of Changes from Proposed Rule above).
    We are designating as flycatcher critical habitat a segment of the 
Los Pinos River in La Plata County, Colorado (7.2 km, 4.5 mi), and the 
northern bank of the San Juan River in San Juan County, Utah (43.5 km, 
27.0 mi). The Los Pinos River segment begins at a private road crossing 
of the Los Pinos River west of the Pine River Ranch Road, approximately 
3.7 km (2.3 mi) north of Highway 160 near the town of Bayfield, and 
ends at the northern boundary of Southern Ute tribal land. The north 
bank of the San Juan River in Utah occurs from the Navajo Nation 
boundary downstream to Chinle Creek. These segments were not within the 
geographical area known to be occupied at the time of listing, but are 
essential for flycatcher conservation in order to help meet recovery 
goals in this Management Unit.
    These segments of the San Juan and Los Pinos Rivers were identified 
as having substantial recovery value in the Recovery Plan (Service 
2002, p. 88). These essential river segments are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
    Segments along the Los Pinos River that occur on Southern Ute 
tribal land in Colorado, and San Juan River on the Navajo Nation in New 
Mexico and Utah (southern bank), were not within the geographical area 
known to be occupied by flycatchers at the time of listing, but 
essential for flycatcher conservation in order to meet recovery. 
Because of our partnership with the Southern Ute Tribe and Navajo 
Nation toward wildlife conservation, and their development, completion, 
and implementation of actions described in their Flycatcher Management 
Plans, we have excluded the portions of the Los Pinos River in Colorado 
and San Juan River in New Mexico and Utah (south bank) that occur 
tribal lands under section 4(b)(2) of the Act (see Exclusions section 
below).

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Powell Management Unit, Utah and Arizona
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Powell Management Unit (Service 2002, p. 84). No flycatcher 
territories have been detected in this Management Unit (Sogge and Durst 
2008).
    There were no large flycatcher nesting populations in the Powell 
Management Unit to help guide us toward a critical habitat area, and no 
areas were known to be occupied at the time of listing. Therefore, to 
identify the areas that would contribute to meeting recovery goals for 
this Management Unit, we used information based on guidance from the 
Recovery Plan and available information about stream habitats to 
determine critical habitat segments that may be essential for 
flycatcher conservation (see below).
    We are designating as flycatcher critical habitat a segment of the 
Paria River in Kane County, Utah (19.0 km, 11.8 mi). This Paria River 
segment occurs from its confluence with Cottonwood Wash and ends at 
Highway 89. This segment was not within the geographical area known to 
be occupied by flycatchers at the time of listing. This river segment 
may be able develop and sustain flycatcher habitat and territories and 
therefore is essential to flycatcher conservation in order to help meet 
recovery goals in this Management Unit.
    This segment of the Paria River was identified as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 88). 
This essential river segment is anticipated to provide flycatcher 
habitat for metapopulation stability, gene connectivity through this 
portion of the flycatcher's range, protection against catastrophic 
population loss, and population growth and colonization potential. As a 
result, this river segment and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
Gila Recovery Unit
    The Gila Recovery Unit includes the Gila River watershed, from its 
headwaters in southwestern New Mexico downstream across the State of 
Arizona toward the confluence with the Colorado River, in southwest 
Arizona (Service 2002, p. 65). In 2002, 588 flycatcher territories (51 
percent of the estimated rangewide total) were estimated to occur, 
distributed primarily on the Gila and lower San Pedro Rivers (Sogge et 
al. 2003, pp. 10-11). From the latest rangewide estimate, the number of 
known territories grew to 659 within this Recovery Unit (50 percent of 
the estimated rangewide total) (Durst et al. 2008, p. 12).
    Many breeding sites have small numbers of territories within the 
Gila Recovery Unit, but along sections of the upper and middle Gila 
River, lower San Pedro River, lower Tonto Creek, and the Tonto Creek 
and Salt River confluence within the water conservation space of 
Roosevelt Lake, abundant breeding sites occur over a relatively broad 
geographic range that together comprise many flycatcher territories. 
Following the 2007 rangewide estimate (Durst et al. 2008, p. 12), the 
Upper Gila, Middle Gila and San Pedro, and Roosevelt Management Units 
had surpassed numerical recovery goals. Within the Gila Recovery Unit, 
there are concentrations of flycatcher territories in the Cliff-Gila 
Valley, New Mexico, and at Roosevelt Lake, Arizona, that can be some of 
the largest across its range.
    Flycatcher territories in the Gila Recovery Unit occurred primarily 
on lands managed by private and Federal land managers and in a variety 
of habitat types dominated by both native and exotic plants. In 2001, 
private lands hosted 50 percent of the territories (mostly on the San 
Pedro River and Gila River), including one of the largest known 
flycatcher populations, in the Cliff-Gila Valley, New Mexico (Service 
2002, p. 65). Almost the remaining 50 percent of the territories were 
on government-managed lands (Service 2002, p. 65). While in 2001 
(Service 2002, p. 65), 58 percent of territories were in habitats 
dominated by native plants, flycatchers in this Recovery Unit also make 
extensive use of exotic (77 territories) or exotic-dominated (108 
territories) vegetation (primarily tamarisk). Because the current 
distribution of breeding sites in this Recovery Unit is similar, we 
believe these statistics are mostly accurate today. This Recovery Unit 
contains the Verde, Hassayampa and Agua Fria, Roosevelt, San Francisco, 
Upper Gila, Middle Gila and San Pedro, and Santa Cruz Management Units.
    Based upon our occupancy criteria (see above), within the Gila 
Recovery Unit, the Gila (1993), San Pedro (1993), San Francisco (1993), 
Verde (1993), and Salt (1993) Rivers, and Tonto Creek (1993) are 
streams that were within the geographical area known to be occupied at 
the time of listing (1991-1994) (Sogge and Durst 2008) where we are 
designating critical habitat segments. At the time of listing, only 
specific sites on the Gila River within the Middle Gila and San Pedro 
and Upper Gila Management Units were known to be specifically occupied 
by nesting birds, but based upon our criteria and the wide-ranging 
nature of this neotropical migrant, the Gila River within the 
Hassayampa and Agua Fria Management Unit is also considered occupied at 
the time of listing. Below we identify that each listed item described 
in our Special Management Considerations or Protection section (see 
above) applies to the streams described in each Management Unit within 
the Gila Recovery Unit.
Verde Management Unit, Arizona
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Verde Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population along the Verde 
River within Yavapai, Gila, and Maricopa Counties, Arizona. Flycatchers 
were first detected nesting on the Verde River in 1993; a total of six 
breeding sites are known and are spread out from the Verde Valley near 
the towns of Clarkdale and Camp Verde and downstream near Horseshoe 
Lake (Sogge and Durst 2008). A high of 23 territories were detected 
within this Management Unit in 2005 (Sogge and Durst 2008).
    We are designating as flycatcher critical habitat five separate 
segments of the Verde River (three segments on upper Verde River and 
two segments along the middle Verde River). Along the upper Verde River 
through the Verde Valley, in Yavapai County, we are designating a 42.0-
km (26.1-mi) segment of the that occurs from above Tuzigoot National 
Monument near the Town of Clarkdale, downstream through the towns of 
Cottonwood to the north end of Yavapai Apache tribal land. At the 
southern end of Yavapai Apache tribal land the next segment (15.3 km, 
9.5 mi) extends toward Camp Verde where it meets the north end of 
another, separate piece of Yavapai Apache tribal land. At the southern 
end of this additional piece of Yavapai Apache tribal land, the third 
and last river segment along the upper Verde River extends 14.0 km (8.7 
mi) to Beasley Flat. We are also designating a 46.3-km (28.8-mi) 
segment in the middle Verde River that extends from the East Verde 
River confluence down to the upper end of Horseshoe Lake. The last (6.7 
km, 4.2 mi) segment of the Verde River designated as flycatcher 
critical habitat occurs from Horseshoe Dam and ends a short distance 
downstream to the USGS gauging station and cable crossing. These 
segments of the Verde River are within the geographical area known to 
be occupied by flycatchers at the time of listing, and contain the 
physical or

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biological features essential to the conservation of the species which 
may require special management considerations or protection, as 
described above.
    The Verde River was the lone river identified within this 
Management Unit as having substantial recovery value in the Recovery 
Plan (Service 2002, p. 91). These river segments are anticipated to 
provide flycatcher habitat for metapopulation stability, gene 
connectivity through this portion of the flycatcher's range, protection 
against catastrophic population loss, and population growth and 
colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    The conservation space of Horseshoe Lake is within the planning 
area of the Horseshoe and Bartlett Dams HCP. As a result of the 
management and protection provided flycatcher habitat within the 
conservation space of Horseshoe Lake due to its inclusion in the HCP, 
this portion of the Verde River (9.6 km, 6.0 mi) is being excluded from 
this critical habitat designation under section 4(b)(2) of the Act (see 
Exclusions section below).
    Two separate sections (2.1 km, 1.3 mi and 0.7 km, 0.4 mi) of the 
upper Verde River occur on Yavapai Apache tribal lands. Because of our 
partnership with the Yavapai Apache Tribe toward wildlife conservation, 
and their development, completion, and implementation of actions 
described in their Flycatcher Management Plan, we have excluded these 
two sections of the Verde River that occur on their tribal lands under 
section 4(b)(2) of the Act (see Exclusions section below).
Roosevelt Management Unit, Arizona
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the Roosevelt Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population surrounding the 
Roosevelt Lake area along Tonto Creek, the Salt River, and Pinal Creek 
in Gila and Pinal Counties, Arizona. Flycatchers were first detected 
nesting on Tonto Creek and the Salt River within the conservation space 
of Roosevelt Lake in 1993 (Sogge and Durst 2008).
    Because of the anticipated water level fluctuations at Roosevelt 
Lake, which inundates many flycatcher territories and limits the number 
of territories that can be sustained over time, this is the only 
Management Unit within the flycatcher's range where the recovery goal 
was smaller than the known number of territories at the time of the 
Recovery Plan completion. As a result, river segments and the lakebed 
together provide habitat that allow flycatcher territories to persist 
over time due to dynamic river and lake flooding events. For example, a 
high of 196 flycatcher territories occurred in 2004 (mostly within the 
conservation space of Roosevelt Lake), but in the following years after 
the lake level was raised, the known number of territories declined to 
75 in 2007 (Sogge and Durst 2008). Since the raising of the water level 
in Roosevelt Lake, flycatchers have expanded their known distribution 
throughout adjacent areas along Tonto Creek, Salt River, and Pinal 
Creek (Sogge and Durst 2008).
    We are designating as flycatcher critical habitat a segment of 
lower Tonto Creek and a segment of the upper Salt River. The lower 
Tonto Creek segment extends for 49.0-km (30.5-mi) and occurs from the 
south end of the Town of Gisela downstream to the western high-water-
mark side of the conservation space of Roosevelt Lake. On the eastern 
side of Roosevelt Lake, we are designating a 38.9-km (24.2-mi) segment 
from the Salt River confluence with Cherry Creek downstream to the high 
water mark of the conservation space of Roosevelt Lake. These segments 
are within the geographical area known to be occupied by flycatchers at 
the time of listing, and contain the physical or biological features 
essential to the conservation of the species which may require special 
management considerations or protection, as described above.
    The segments of Tonto Creek and the Salt River were identified as 
having substantial recovery value in the Recovery Plan (Service 2002, 
p. 91). These segments are anticipated to provide flycatcher habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and population growth and colonization potential. As a result, 
these river segments and associated flycatcher habitat are anticipated 
to support the strategy, rationale, and science of flycatcher 
conservation in order to meet territory and habitat-related recovery 
goals.
    The confluence of Tonto Creek and the Salt River (29.1 km, 18 mi) 
that make up Roosevelt Lake below the elevation of 2151 feet, occurs 
within the planning area of the Roosevelt Lake HCP. As a result of the 
conservation provided the flycatcher within the Roosevelt Lake HCP 
planning area through the implementation of this HCO and the management 
support from the Tonto National Forest, the length of Roosevelt Lake is 
being excluded from this critical habitat designation under section 
4(b)(2) of the Act (see Exclusions section below).
    Essential flycatcher habitat along Pinal Creek (5.8 km, 3.6 mi), 
not within the geographical area known to be occupied at the time of 
listing, managed by FMC, is being excluded under section 4(b)(2) of the 
Act due to our conservation partnership and their implementation of a 
management plan specific to protecting flycatcher habitat (see 
Exclusions section below).
Middle Gila and San Pedro Management Unit, Arizona
    The Recovery Plan describes a goal of 150 flycatcher territories in 
the Middle Gila and San Pedro Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population surrounding the 
Gila and San Pedro River confluence area within Cochise, Pima, Pinal, 
and Gila Counties, Arizona. Flycatchers were first detected nesting in 
this Management Unit in 1993, with abundant breeding sites occurring 
throughout this Management Unit. A high of 195 territories was detected 
in 2005 (Sogge and Durst 2008).
    We are designating as flycatcher critical habitat the lowest 126.2-
km (78.4-mi) segment of the middle and lower San Pedro River across 
portions of Cochise, Pima, and Pinal Counties, Arizona, and a 80.6-km 
(50.1-mi) Gila River segment that extends from near Dripping Springs 
Wash downstream past the San Pedro and Gila River confluence to the 
Ashehurst Hayden Diversion Dam in Gila and Pinal Counties, Arizona. The 
Gila and San Pedro Rivers are within the geographical area known to be 
occupied by flycatchers at the time of listing, and contain the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection, as described above.
    The San Pedro and Gila Rivers were the only two rivers identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 91). These river segments are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river

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segments and associated flycatcher habitat are anticipated to support 
the strategy, rationale, and science of flycatcher conservation in 
order to meet territory and habitat-related recovery goals.
    Parcels of San Carlos Apache lands, totaling about 0.9 km (0.6 mi) 
and 75 ha (185 ha) occur along the lower San Pedro River between the 
Aravaipa Creek and Gila River confluence. Because of our partnership 
with the San Carlos Apache Tribe toward wildlife conservation, and 
their development, completion, and implementation of actions described 
in their Flycatcher Management Plan, we have excluded these parcels 
along the San Pedro River that occur on their tribal lands under 
section 4(b)(2) of the Act (see Exclusions section below).
Upper Gila Management Unit, Arizona and New Mexico
    The Recovery Plan describes a goal of 325 flycatcher territories in 
the Upper Gila Management Unit (Service 2002, p. 85). Flycatcher 
territories are known throughout the Gila River in New Mexico and 
Arizona within this Management Unit.
    We identified a large flycatcher nesting population across a broad 
area of the upper Gila River occurring within Gila, Pinal, Graham, and 
Greenlee Counties, Arizona, and Grant and Hildalgo Counties, New 
Mexico. Flycatchers were first detected nesting in this Management Unit 
in 1993 (Sogge and Durst 2008). Flycatcher territories at 22 breeding 
sites occur throughout three separate river segments of the Gila River, 
with a high of 329 territories estimated following the 2007 breeding 
season (Durst et al. 2008, p. 12). A single breeding site along the 
most upstream segment in the Cliff-Gila Valley in Grant County, New 
Mexico, has held over 200 flycatcher territories in a single season 
(Sogge and Durst 2008). The Gila River is within the geographical area 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential to the 
conservation of the species which may require special management 
considerations or protection, as described above.
    We are designating four Gila River stream segments as flycatcher 
critical habitat between the Turkey Creek-Gila River confluence on the 
Gila National Forest, New Mexico, and the San Carlos Apache tribal Land 
boundary, Arizona. There are three segments we are designating as 
flycatcher critical habitat that occur almost entirely on the upper 
Gila River in southwestern New Mexico (Grant and Hildalgo Counties). 
Within a stretch of stream in the Cliff-Gila Valley, New Mexico, which 
extends into the Gila National Forest, there are checker-boarded lands 
that occur within the final designation and are excluded from critical 
habitat (U-Bar Ranch). A fourth Arizona Gila River segment occurs 
through the Safford Valley in Gila, Graham, and Pinal Counties.
    The most upstream Gila River flycatcher critical habitat segment 
extends for 16.9 km (10.5 mi) from the Turkey Creek-Gila River 
confluence on the Gila National Forest, New Mexico, downstream to the 
upstream boundary of the U-Bar Ranch in the Cliff-Gila Valley, New 
Mexico. We are excluding the U-Bar Ranch from this point downstream for 
approximately 26.4 km (16.4 mi) to the last U-Bar Ranch parcel, which 
occurs just within the Gila National Forest Boundary. Along this 
approximate 26.4 km (16.4 mi) stretch of the Gila River, the U-Bar 
Ranch contains about 13.6 km (8.6 mi) of check-boarded property which 
is not included in the final designation; a 12.8 km (8.0 mi) portion of 
stream is included within the final designation. The second Gila River 
segment extends from the downstream boundary of the U-Bar Ranch within 
the Gila National Forest for 6.0 km (3.7 mi) to the upstream end of the 
middle Gila Box, New Mexico. The third segment begins at the Gila River 
gauging station above the Town of Red Rock in Grant County, New Mexico, 
at the downstream end of the middle Gila Box and extends for 65.3 km 
(40.6 mi) into Hidalgo County, New Mexico, and just across the New 
Mexico-Arizona State line through the town of Duncan in Greenlee 
County, Arizona. A fourth Gila River segment extends for 76.4 km (47.5 
mi) from the upper end of Earven Flat in Arizona, above the Town of 
Safford, through the Safford Valley to the San Carlos Apache tribal 
boundary in Gila, Graham, and Pinal Counties, Arizona.
    These Gila River segments were identified in the Recovery Plan as 
areas with substantial recovery value (Service 2002, p. 91) and are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    Because of our partnership with the San Carlos Apache Tribe and 
their development, completion, and implementation of actions described 
in their Flycatcher Management Plan, we have excluded the 31.3 km (19.5 
mi) portion of the Gila River (upstream of the San Carlos Reservoir) 
that occurs within their tribal lands under section 4(b)(2) of the Act 
(see Exclusions section below). Also because of our tribal trust 
responsibilities with both the San Carlos Apache Tribe and Gila River 
Indian Community (GRIC), we are excluding the Federal land that occurs 
along the Gila River (26.8 km, 16.6 mi) within the conservation space 
of San Carlos Reservoir under section 4(b)(2) of the Act (see 
Exclusions section below).
    Because of the development, completion, and implementation of 
actions described in FMC's Flycatcher Management Plan for the U-Bar 
Ranch in the Cliff-Gila Valley, New Mexico, we are excluding the 13.8 
km (8.6 mi) portions of the Gila River occurring on these lands under 
section 4(b)(2) of the Act due to our conservation partnership and 
their implementation of a management plan specific to protecting 
flycatcher habitat (see Exclusions section below).
Santa Cruz Management Unit, Arizona
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Santa Cruz Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the Santa 
Cruz Management Unit to help guide us toward a critical habitat area, 
and no areas were known to be occupied at the time of listing. 
Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments that may be essential for flycatcher conservation. A 
single flycatcher territory was detected on Cienega Creek in 2001 
(Sogge and Durst 2008) and Empire Gulch in 2011 (a tributary to Cienega 
Creek). No flycatcher territories have been detected on the Santa Cruz 
River.
    Within Pima and Santa Cruz Counties, Arizona, we are designating 
flycatcher critical habitat along Cienega Creek, Empire Gulch, and the 
Santa Cruz River. Within Las Cienegas National Conservation Area in 
Pima County, we are designating a 17.9-km (11.1-mi) segment of Cienega 
Creek and two segments of Empire Gulch; an isolated 0.4-km (0.3-mi) 
upper segment of Empire Gulch and a second 1.3-km (0.8-mi) lower 
segment of Empire Gulch that connects to Cienega Creek. Along

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the Santa Cruz River, we are designating a 26.7-km (16.6-mi) segment 
from the Nogales Waste Water Treatment Plant to Chavez Siding Road in 
Santa Cruz County, Arizona. These segments were not within the 
geographical area known to be occupied at the time of listing; however, 
they are essential to flycatcher conservation because they may be able 
to develop and sustain flycatcher habitat and territories to help meet 
recovery goals in this Management Unit.
    The Santa Cruz River and Cienega Creek segments were identified in 
the Recovery Plan as areas with substantial recovery value (Service 
2002, p. 91), while the adjacent Empire Gulch was only recently 
detected as having a flycatcher territory. These segments are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
San Francisco Management Unit, Arizona and New Mexico
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the San Francisco Management Unit (Service 2002, p. 84). Small numbers 
of flycatcher territories are known to occur along the San Francisco 
River in this Management Unit in both Arizona and New Mexico.
    There were no known large flycatcher nesting populations in the San 
Francisco Management Unit to help guide us toward a critical habitat 
area. Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments for flycatcher conservation (see below). Four 
flycatcher breeding sites have been detected on these river segments, 
with the first territories found in 1993 (Sogge and Durst 2008). The 
number of territories detected has fluctuated annually between one and 
seven from 1993 to 2007 (Sogge and Durst 2008). The San Francisco River 
is within the geographical area known to be occupied by flycatchers at 
the time of listing, and contains the physical or biological features 
essential for the conservation of the species which may require special 
management considerations or protection, as described above.
    We are designating as flycatcher critical habitat four segments of 
the San Francisco River in Arizona and New Mexico. We are designating 
two segments of the San Francisco River between the Town of Alpine, 
Arizona, and Centerfire Creek in Catron County, New Mexico, that are 
separated by a 2.7 km (1.7 mi) area at Luna Lake, Arizona. These two 
segments extend for 11.3-km (7.0-mi) west of Luna Lake in Apache 
County, Arizona, and beginning just downstream of Luna Lake, for 28.2-
km (17.5.mi) in Apache County and Catron County. A third 36.4-km (22.6-
mi) segment extends from the Deep Creek confluence to San Francisco Hot 
Springs, in Catron County, New Mexico. The fourth, 36.7-km (22.8-mi) 
segment extends from the Arizona and New Mexico State line border to 
the western boundary of the Apache-Sitgreaves National Forest, in 
Apache County, Arizona.
    These San Francisco River segments were identified in the Recovery 
Plan as having substantial recovery value (Service 2002, pp. 90-91). 
These San Francisco River segments are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
Hassayampa and Agua Fria Management Unit, Arizona
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Hassayampa and Agua Fria Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the 
Hassayampa and Agua Fria Management Unit to help guide us toward a 
critical habitat area. Therefore, to identify the areas that would 
contribute to meeting recovery goals for this Management Unit, we used 
information based on known flycatcher territories and breeding sites, 
guidance from the Recovery Plan, and knowledge about stream habitat to 
determine critical habitat segments that may be essential for 
flycatcher conservation (see below). A single breeding site along the 
Hassayampa River was detected within this Management Unit, with the 
number of territories ranging from one and three (Sogge and Durst 
2008).
    We are designating as flycatcher critical habitat a 7.4-km (4.6-mi) 
segment of the Hassayampa River that occurs south of the Highway 60 
Bridge in the Town of Wickenburg in Maricopa County, Arizona. This 
segment was not within the geographical area known to be occupied at 
the time of listing; however, it is essential for flycatcher 
conservation because it will help meet recovery goals in this 
Management Unit.
    The Hassayampa River was identified in the Recovery Plan as having 
substantial recovery value (Service 2002, p. 91). This river segment is 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, this segment and associated 
flycatcher habitat are anticipated to support the strategy, rationale, 
and science of flycatcher conservation in order to meet territory and 
habitat-related recovery goals.
    The 8.7 km (5.4 mi) Gila River segment that occurs within the Tres 
Rios Safe Harbor Agreement Area will be excluded under section 4(b)(2) 
of the Act (see Exclusions section below) as a result of the habitat 
development and management by the City of Phoenix associated with their 
Safe Harbor Agreement with the Service.
Rio Grande Recovery Unit
    This Recovery Unit primarily includes the Rio Grande watershed from 
its headwaters in southern Colorado downstream to the Pecos River 
confluence in Texas. Other areas and drainages that occur within this 
Recovery Unit include the Rio Grande in Texas and Pecos watershed in 
New Mexico and Texas. No recovery goals were established for Management 
Units in those areas, so no critical habitat is being designated in 
those areas.
    There have been large increases in the number of estimated and 
known territories within the Rio Grande Recovery Unit, primarily due to 
increasing population numbers within the Middle Rio Grande Management 
Unit. In 2002, a total of 197 territories (17 percent of the rangewide 
total) were estimated to occur within the Recovery Unit, primarily 
occurring along the mainstem Rio Grande (Sogge et al. 2003). At the end 
of the 2007 breeding season, the Recovery Unit had increased to an 
estimated 230 territories (17 percent of the rangewide total), 
primarily due to territory increases in the Middle Rio Grande (Durst et 
al.

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2008, p.13). In the subsequent years, the number of known territories 
has continued to increase within the Middle Rio Grande Management Unit 
with approximately 350 territories detected in 2009, with most 
territories detected within the San Marcial reach near Elephant Butte 
Reservoir (Moore and Ahlers 2010, p. 1).
    Both the San Luis Valley Management Unit in southern Colorado and 
Middle Rio Grande Management Unit in New Mexico have surpassed their 
numerical territory goals. A total of 50 territories are needed in the 
San Luis Valley Management Unit and 56 territories were estimated to 
occur in 2007 (Durst et al. 2008, p. 13). In the Middle Rio Grande 
Management Unit, the numerical goal of 100 territories has been 
surpassed with about 350 territories detected in 2009 (Moore and Ahlers 
2010, p.1).
    Most sites are in habitats dominated by native plants, while 
habitat dominated by exotic plants include primarily tamarisk or 
Russian olive (Service 2002, p. 65). In 2001, 43 of the 56 nests (77 
percent) that were described in the middle and lower Rio Grande in New 
Mexico, used tamarisk as the nest substrate (Service 2002, p. 65). In 
2001, government-managed lands accounted for 63 percent of the 
territories in this unit; tribal lands supported an additional 23 
percent (Service 2002). While the number of territories has increased, 
the known distribution of sites is similar. As a result, we expect a 
larger proportion of territories to occur on government-managed lands 
in the Middle Rio Grande Management Unit.
    This Recovery Unit contains the San Luis Valley, Upper Rio Grande, 
Middle Rio Grande, and Lower Rio Grande Management Units.
    Based upon our occupancy criteria (see above), within the Rio 
Grande Recovery Unit, the Rio Grande (1993), Rio Grande del Rancho 
(1993), and Coyote Creek (1993) are streams that were within the 
geographical area known to be occupied at the time of listing (1991-
1994) (Sogge and Durst 2008) where we are designating critical habitat 
segments. These streams have the physical or biological features of 
critical habitat that may require special management considerations or 
protection.
    At the time of listing, only specific sites on the Rio Grande 
within the Upper, Middle, and Lower Rio Grande Management Units were 
known to be specifically occupied by nesting birds, but based upon our 
criteria and the wide-ranging nature of this neotropical migrant, the 
Rio Grande within the San Luis Valley Management Unit is also 
considered occupied at the time of listing. Below we identify that each 
listed item described in our Special Management Considerations or 
Protection section (see above) applies to the streams described in each 
Management Unit within the Rio Grande Recovery Unit.
San Luis Valley Management Unit, Colorado
    The Recovery Plan describes a goal of 50 flycatcher territories in 
the San Luis Valley Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population in the San Luis 
Valley in Costilla, Conejos, Alamosa, and Rio Grande Counties, 
Colorado. Flycatchers were first detected nesting in this Management 
Unit in 1997, and a high of 71 territories were detected along the Rio 
Grande and Conejos River in 2003 (Sogge and Durst 2008).
    We are designating as flycatcher critical habitat two segments of 
the Rio Grande, which are within close proximity to each other, within 
the San Luis Valley. The northern-most segment on the Rio Grande is an 
18.4-km (11.4-mi) segment constituting 3,377 ha (8345 ac) within the 
Alamosa NWR. The more southerly segment is on BLM land (on the west 
side of the Rio Grande) and is 20.4 km (12.7 mi) long constituting 
182.8 ha (451.7 ac). The Rio Grande is within the geographical area 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential for the 
conservation of the species that may require special management 
considerations or protection, as described above.
    We are also designating as flycatcher critical habitat three 
segments in close proximity on the Conejos River that, in total, are 
4.7-km (2.9-mi) long constituting 502.9 ha (1242.7 ac). The Conejos 
River was not within the geographical area known to be occupied at the 
time of listing; however, it is essential for flycatcher conservation 
because it will help meet recovery goals in this Management Unit.
    The Rio Grande and the Conejos River segments were identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 92). These river segments are 
anticipated to provide flycatcher habitat for metapopulation stability, 
gene connectivity through this portion of the flycatcher's range, 
protection against catastrophic population loss, and population growth 
and colonization potential. As a result, these river segments and 
associated flycatcher habitat are anticipated to support the strategy, 
rationale, and science of flycatcher conservation in order to meet 
territory and habitat-related recovery goals.
    Large sections of non-federal lands occur along both the Rio Grande 
and Conejos River within the conservation planning area established by 
the San Luis Valley Partnership and within their HCP; as a result, we 
excluded 184.5 km (114.7 mi) constituting 27,566.6 ha (68,118.2 ac) of 
habitat along the Conejos River and Rio Grande within this conservation 
and planning area under section 4(b)(2) of the Act (see Exclusions).
Upper Rio Grande Management Unit, New Mexico
    The Recovery Plan describes a goal of 75 flycatcher territories in 
the Upper Rio Grande Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population on the upper 
Rio Grande in Taos, Santa Fe, and Mora Counties, New Mexico. 
Flycatchers were first detected nesting in this Management Unit in 
1993, and a high of 39 territories were detected in 2000 along the Rio 
Grande, Rio Grande Del Rancho, and Coyote Creek (Sogge and Durst 2008). 
These segments are within the geographical area known to be occupied by 
flycatchers at the time of listing, and contain the physical or 
biological features essential for the conservation of the species which 
may require special management considerations or protection. Flycatcher 
territories were recently detected on the Rio Fernando, which was not 
within the geographical area known to be occupied by flycatchers at the 
time of listing, but is considered essential for conservation.
    We are designating as flycatcher critical habitat a collection of 
Upper Rio Grande Management Unit river segments along the Rio Grande, 
Rio Grande del Rancho, Coyote Creek, and Rio Fernando. We are 
designating a 46.8-km (29.1-mi) Rio Grande segment that extends from 
the Taos Junction Bridge (State Route 520) downstream to the northern 
boundary of the San Juan (Ohkay Ohwingeh) Pueblo, and a 1.1 km (0.4 mi) 
segment of the Rio Grande between the San Juan (Ohkay Ohwingeh) and 
Santa Clara Pueblos. We are also designating as flycatcher critical 
habitat an 11.9-km (7.4-mi) segment of the Rio Grande del Rancho from 
Sarco Canyon downstream to the Arroyo Miranda confluence, and a 10.7-km 
(6.6-mi) segment of Coyote Creek from above Coyote Creek State Park 
downstream to the second bridge on State Route 518, upstream from Los 
Cocas. Additionally,

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we are designating a 0.4-km (0.2-mi) segment of the Rio Fernando that 
is located about 3.2 km (2.0 mi) upstream from the Rio Lucero 
confluence.
    Rio Grande, Rio Grande del Rancho, and Coyote Creek were identified 
within this Management Unit as having substantial recovery value in the 
Recovery Plan (Service 2002, p. 92). These three segments, along with 
the essential Rio Fernando segment, are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through this portion of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitat are anticipated to support the strategy, rationale, and science 
of flycatcher conservation in order to meet territory and habitat-
related recovery goals.
    Due to the our partnership with the Santa Clara, San Juan, and San 
Ildefonso Pueblos and their conservation efforts on the Rio Grande, we 
are excluding these pueblos from the final flycatcher critical habitat 
designation under section 4(b)(2) of the Act (see Exclusions section 
below).
Middle Rio Grande Management Unit, New Mexico
    The Recovery Plan describes a goal of 100 flycatcher territories in 
the Middle Rio Grande Management Unit (Service 2002, p. 85).
    We identified a large flycatcher nesting population on the middle 
Rio Grande in Valencia and Socorro Counties, New Mexico. Flycatcher 
territories were first detected in this Management Unit in 1993. In 
2007, a high of 230 territories were detected (Sogge and Durst 2008), 
and since then the population has grown to about 350 territories (Moore 
and Ahlers 2010, p. 1). The Rio Grande is within the geographical area 
known to be occupied by flycatchers at the time of listing, and 
contains the physical or biological features essential for the 
conservation of the species which may require special management 
considerations or protection, as described above.
    We are designating as critical habitat a 180.4-km (112.1-mi) 
segment of the Rio Grande that extends from below Isleta Pueblo and the 
Bernalillo and Valencia County line downstream past Bosque del Apache 
and Sevilleta NWRs and into the upper part of Elephant Butte Reservoir 
ending in Socorro County about 3.2 km (2.0 mi) north of the Sierra 
County line, New Mexico (about 14.4 km, 9.0 mi of the upper part of 
Elephant Butte Reservoir, downstream of the power-line crossing is 
included within the designation).
    This Rio Grande segment was identified as having substantial 
recovery value in the Recovery Plan (Service 2002, p. 92). This segment 
of the Rio Grande is anticipated to provide flycatcher habitat for 
metapopulation stability, gene connectivity through this portion of the 
flycatcher's range, protection against catastrophic population loss, 
and population growth and colonization potential. As a result, this 
river segment and associated flycatcher habitat are anticipated to 
support the strategy, rationale, and science of flycatcher conservation 
in order to meet territory and habitat-related recovery goals.
Lower Rio Grande Management Unit, New Mexico
    The Recovery Plan describes a goal of 25 flycatcher territories in 
the Lower Rio Grande Management Unit (Service 2002, p. 84).
    There were no large flycatcher nesting populations in the lower Rio 
Grande Management Unit to help guide us toward a critical habitat area. 
Therefore, to identify the areas that would contribute to meeting 
recovery goals for this Management Unit, we used information based on 
known flycatcher territories and breeding sites, guidance from the 
Recovery Plan, and knowledge about stream habitat to determine critical 
habitat segments that may be essential for flycatcher conservation (see 
below). Between 1993 and 2007, three breeding sites had been detected 
along the lower Rio Grande in Sierra and Dona Ana Counties, New Mexico, 
with the first territories found in 1993 (Sogge and Durst 2008). During 
this time period the number of known flycatcher territories detected 
annually fluctuated between zero and eight (Sogge and Durst 2008). 
However, in 2011 the number of territories detected within the Lower 
Rio Grande Management Unit increased due to improved survey effort 
(Service 2012, p. 32) and in 2012 is believed to have reached 25 
territories (Hill, D. 2012, pers. comm.). The Rio Grande is within the 
geographical area known to be occupied by flycatchers at the time of 
listing, and contains the physical or biological features essential for 
the conservation of the species which may require special management 
considerations or protection, as described above.
    The lower Rio Grande, from Caballo Dam to Leasburg Dam (74.2 km, 
46.1 mi), was also proposed as critical habitat in this management 
unit. However, as a result of the commitment to comprehensively manage 
flycatcher habitat, through development and protection of habitat and 
water transaction agreements, we are excluding this segment from the 
final designation of revised flycatcher critical habitat under section 
4(b)(2) of the Act (see Exclusions section below).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
Corps under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) 
or a permit from the Service under section 10 of the Act) or that 
involve some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded or

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authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the flycatcher. As discussed 
above, the role of critical habitat is to support life-history needs of 
the species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the flycatcher. These activities include, but are not 
limited to:
    (1) Actions that would remove, thin, or destroy riparian flycatcher 
habitat, without implementation of an effective riparian habitat 
management plan resulting in the development of riparian vegetation of 
equal or better flycatcher quality in abundance and extent. Such 
activities could include, but are not limited to, removing, thinning, 
or destroying riparian vegetation by mechanical (mowing, cutting), 
chemical (herbicides or burning), or biological (grazing, biocontrol 
agents) means. These activities could reduce the amount or extent of 
riparian habitat needed by flycatchers for sheltering, feeding, 
breeding, and migrating.
    (2) Actions that would appreciably diminish habitat value or 
quality through direct or indirect effects. Such activities could 
include, but are not limited to, degradation of watershed and soil 
characteristics; diminishing river surface and subsurface flow; 
negatively altering river flow regimes; introduction of exotic plants, 
animals, or insects; or habitat fragmentation from recreation 
activities. These activities could reduce or fragment the amount or 
extent of riparian habitat needed by flycatchers for sheltering, 
feeding, breeding, and migrating.
    (3) Actions that would negatively alter the surface or subsurface 
river flow. Such activities could include, but are not limited to, 
water diversion or impoundment, groundwater pumping, dam construction 
and operation, or any other activity which negatively changes the 
frequency, magnitude, duration, timing, or abundance of surface flow 
(and also subsurface groundwater elevation). These activities could 
permanently eliminate available riparian habitat and food availability 
or degrade the general suitability, quality, structure, abundance, 
longevity, and vigor of riparian vegetation and microhabitat components 
necessary for nesting, migrating, food, cover, and shelter.
    (4) Actions that permanently destroy or alter flycatcher habitat. 
Such activities could include, but are not limited to, discharge of 
fill material, draining, ditching, tiling, pond construction, and 
stream channelization (due to roads, construction of bridges, 
impoundments, discharge pipes, stormwater detention basins, dikes, 
levees, and others). These activities could permanently eliminate 
available riparian habitat and food availability or degrade the general 
suitability, quality, structure, abundance, longevity, and vigor of 
riparian vegetation and microhabitat components necessary for nesting, 
migrating, food, cover, and shelter.
    (5) Actions that result in alteration of flycatcher habitat from 
improper livestock or ungulate management. Such activities could 
include, but are not limited to, unrestricted ungulate access and use 
of riparian vegetation; excessive ungulate use of riparian vegetation 
during the non-growing season (i.e., leaf drop to bud break); overuse 
of riparian habitat and upland vegetation due to insufficient 
herbaceous vegetation (low-growing, non-woody plants) available to 
livestock; and improper herding, water development, or other livestock 
management actions. These activities can reduce the volume and 
composition of riparian vegetation, prevent regeneration of riparian 
plant species, physically disturb nests, alter floodplain dynamics, 
facilitate brood parasitism (laying eggs in flycatcher nests) by brown-
headed cowbirds, alter watershed and soil characteristics, alter stream 
shape, and facilitate the growth of flammable exotic plant species.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP by November 17, 2001. An INRMP

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integrates implementation of the military mission of the installation 
with stewardship of the natural resources found on the base. Each INRMP 
includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
critical habitat designation for the flycatcher to determine if they 
meet the criteria for exemption from critical habitat under section 
4(a)(3) of the Act. The following areas are Department of Defense lands 
with completed, Service-approved INRMPs within the proposed revised 
critical habitat designation.

     TABLE 3--Areas Exempted From Critical Habitat Under Section 4(b)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
      Management unit                  Specific area             definition of critical    Areas exempted in km
                                                                   habitat in km (mi)              (mi)
----------------------------------------------------------------------------------------------------------------
Santa Ynez.................  Vandenberg AFB INRMP.............  14.7 km (9.1 mi).......  14.7 km (9.1 mi).
San Diego..................  Camp Pendleton INRMP.............  76.1 km (47.3 mi)......  76.1 km (47.3 mi).
San Diego..................  Camp Pendleton INRMP/Fallbrook     7.5 km (4.7 mi)........  7.5 km (4.7 mi).
                              Naval Base INRMP shared boundary.
San Diego..................  Fallbrook Naval Base INRMP.......  3.2 km (2.0 mi)........  3.2 km (2.0 mi).
----------------------------------------------------------------------------------------------------------------

Vandenberg AFB--Santa Ynez Management Unit, California
    Vandenberg AFB has an approved INRMP. The U.S. Air Force is 
committed to working closely with the Service and California Department 
of Fish and Game to continually refine the existing INRMP as part of 
the Sikes Act's INRMP review process. Based on our review of the INRMP 
for this military installation, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the portion of the 
Santa Ynez River within this installation, identified as meeting the 
definition of critical habitat, is subject to the INRMP, and that 
conservation efforts identified in this INRMP will provide a benefit to 
the flycatcher. Therefore, lands within this installation are exempt 
from critical habitat designation under section 4(a)(3)(B) of the Act. 
We are not including approximately 14.7 km (9.1 mi) of riparian habitat 
on VAFB in this revised critical habitat designation because of this 
exemption.
    VAFB completed an INRMP in 2011, which includes benefits for 
flycatchers through: (1) Avoidance of flycatchers and their habitat, 
whenever possible, in project planning; (2) scheduling of activities 
that may affect flycatchers outside of the peak breeding period; (3) 
measures for protection of riparian zones (see Wetlands and Riparian 
Habitats Management Plan Section in INRMP); (4) removal of exotic plant 
species; and (5) implementation of brown-headed cowbird management. 
Further, VAFB's environmental staff reviews projects and enforces 
existing regulations and orders that, through their implementation, 
avoid and minimize impacts to natural resources, including flycatchers 
and their habitat. In addition, VAFB's INRMP provides protection to 
riparian habitats for flycatchers by excluding cattle from wetlands and 
riparian areas through the installation and maintenance of fencing. 
VAFB's INRMP specifies periodic monitoring of the distribution and 
abundance of flycatcher populations on the base.
    Habitat features essential to flycatcher conservation exist on 
VAFB; however, designating critical habitat on this military 
installation may impact its mission of launching and tracking of 
satellites and testing and evaluating missile systems, and therefore 
affect the nation's military readiness. Activities occurring on VAFB 
are currently being conducted in a manner that minimizes impacts to 
flycatchers. This military installation has an approved INRMP that 
provides a benefit to the flycatcher, and VAFB has committed to work 
closely with the Service and the State wildlife agency to continually 
refine their existing INRMP as part of the Sikes Act's INRMP review 
process.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2011 INRMP for VAFB provide a benefit to the 
flycatcher and its habitat. Therefore, lands subject to the INRMP for 
VAFB, which includes the lands leased from the Department of Defense by 
other parties, are exempt from critical habitat designation under 
section 4(a)(3) of the Act, and we are not including approximately 14.7 
km (9.1 mi) of the Santa Ynez River in this revised critical habitat 
designation because of this exemption.
Marine Corps Base Camp Pendleton (MCB Camp Pendleton)--San Diego 
Management Unit, California
    The primary mission of Marine Corps Base Camp Pendleton (MCB Camp 
Pendleton) is military training. It is the Marine Corps' premier 
amphibious training installation and its only west coast amphibious 
assault training center. The installation has been conducting air, sea, 
and ground assault training since World War II. MCB Camp Pendleton 
occupies over 50,586 ha (125,000 ac) of coastal southern California in 
the northwest corner of San Diego County. Aside from nearly 4,047 ha 
(10,000 ac) that is developed, most of the installation is largely 
undeveloped land that is used for training. MCB Camp Pendleton is

[[Page 383]]

situated between two major metropolitan areas: Los Angeles, 132 km (82 
mi) to the north; and San Diego, 61 km (38 mi) to the south. Nearby 
urban areas include the City of Oceanside to the south, the 
unincorporated community of Fallbrook to the east, and the City of San 
Clemente to the northwest. Aside from a portion of the MCB Camp 
Pendleton's border that is shared with the San Mateo Canyon Wilderness 
Area on the Cleveland National Forest and the Naval Weapons Station 
Seal Beach--Detachment Fallbrook (Fallbrook Naval Weapons Station), 
surrounding land use is urban development, rural residential 
development, and agricultural farming and ranching. In addition to 
military training and associated activities and infrastructure to 
support training, portions of MCB Camp Pendleton are leased to private 
and public entities and agencies. The largest single leaseholder on the 
installation is California State Parks, which includes a 50-year real 
estate lease granted on September 1, 1971, for 809 ha (2,000 ac) that 
encompasses San Onofre State Beach. Requirements to the lessees are to 
manage natural resources on leased lands in support of objectives and 
consistent with the philosophies of MCB Camp Pendleton's INRMP (USMC 
2007, pp. 2-29).
    The MCB Camp Pendleton INRMP was prepared to assist installation 
staff and users in their efforts to rehabilitate and conserve natural 
resources while maintaining consistency with the use of MCB Camp 
Pendleton to train Marines, and sets the agenda for managing natural 
resources on MCB Camp Pendleton (USMC 2007, p. ES-1). The INRMP also 
provides ecosystem-based management to preserve, improve, and enhance 
ecosystem integrity on the installation (USMC 2007, pp. 1-13). MCB Camp 
Pendleton completed its INRMP in 2001, followed by a revised and 
updated version in 2007 (USMC 2007), to address conservation and 
management recommendations within the scope of the installation's 
military mission, including conservation measures for flycatchers (USMC 
2007, Appendix F, Section F.1, pp. F1-F5). Additionally, Marine Corps 
Air Station Camp Pendleton (MCAS Camp Pendleton) is fully encompassed 
within MCB Camp Pendleton and recognizes itself as a separate 
installation with its own INRMP that also provides a benefit to the 
flycatcher and its habitat. MCAS Camp Pendleton and its INRMP is 
assumed part of this discussion within the remainder of this exemption 
discussion for flycatcher due to its overlapping and close association 
with MCB Camp Pendleton and its INRMP, and both reference and inclusion 
of conservation described in MCB Camp Pendleton's riparian biological 
opinion (1-6-95-F-02; see USMC 2006, pp. 2-4 and discussion below).
    The MCB Camp Pendleton INRMP incorporates measures outlined in a 
riparian biological opinion (Service 1995), which includes addressing 
the installation's Riparian Ecosystem Conservation Plan (USMC 2007, 
Appendix C). The Riparian Ecosystem Conservation Plan was designed to 
maintain and enhance the biological diversity of the riparian ecosystem 
on MCB Camp Pendleton, including habitat areas used by flycatchers. The 
conceptual approach behind this conservation plan is to sustain and 
restore riparian ecosystem dynamics so that natural plant and animal 
communities on MCB Camp Pendleton are sufficiently resilient to coexist 
with current and future military training activities (Service 1995, 
Appendix 1, p. 44). Under the reasonable and prudent measures of the 
riparian biological opinion, implementation of the Riparian Ecosystem 
Conservation Plan by the Marine Corps is nondiscretionary (Service 
1995, p. 31; USMC 2007, Appendix L; USMC 2006, Appendix E, pp. 63-64). 
Areas or habitat containing features essential to the conservation of 
flycatchers addressed by the conservation plan, the Riparian BO, or MCB 
Camp Pendleton's INRMP include the Santa Margarita River and portions 
of the following creeks: Cristianitos, San Mateo, San Onofre, Los 
Flores, Las Pulgas, Fallbrook, Pilgrim, and DeLuz (70 FR 60886; October 
19, 2005).
    As described in Appendix F of the MCB Camp Pendleton INRMP (USMC 
2007, pp. F-58-F-67), the following management practices and 
conservation measures provide an indirect or direct benefit for the 
flycatcher:
    (1) Annual monitoring of population levels and distributions of the 
flycatcher;
    (2) Incorporating survey data into the GIS species distribution 
database to update the Environmental Operations Maps and utilize in 
conservation awareness and education programs;
    (3) Exotic vegetation control including Arundo donax (giant reed) 
and Tamarix spp. removal and control;
    (4) Exotic animal control (annual cowbird control activities);
    (5) Programmatic instructions that limit impacts to flycatcher and 
its habitat; and
    (6) Monitoring groundwater levels and basin withdrawals managed to 
avoid degradation and loss of habitat quality.
    These measures are established or ongoing aspects of existing 
programs, Base directives (such as the Riparian Ecosystem Conservation 
Plan), or measures that are being implemented as a result of previous 
consultations. MCB Camp Pendleton implements installation directives to 
avoid and minimize adverse effects to the flycatcher, such as:
    (1) Assuring that aircraft operations shall not be conducted lower 
than an altitude of 300 ft (91 m) over occupied riparian areas, to the 
maximum extent practical;
    (2) Limiting vehicle operations to existing roads in riparian 
areas;
    (3) Requiring helicopters to operate in excess of 61 m (200 ft) 
above ground level over riparian areas except during take-off or 
landing, from March 15 to August 31;
    (4) Restricting ground troops movement in riparian areas to 
existing crossings, trails, and roads; and
    (5) Prohibiting bivouacking in riparian areas.
    Current environmental regulations and restrictions apply to all 
endangered and threatened species on the installation (including 
flycatcher) and are provided to all users of ranges and training areas 
to guide activities and protect the species and its habitat. First, 
specific conservation measures are applied to flycatcher and its 
habitat (as outlined above). Second, MCB Camp Pendleton's environmental 
security staff reviews projects and enforces existing regulations and 
orders that, through their implementation, avoid and minimize impacts 
to natural resources, including the flycatcher and its habitat. Third, 
MCB Camp Pendleton provides training to personnel on environmental 
awareness for sensitive resources on the base, including the flycatcher 
and its habitat. As a result of these regulations and restrictions, 
activities occurring on MCB Camp Pendleton are currently conducted in a 
manner that minimizes impacts to flycatcher habitat.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2007 INRMP for MCB Camp Pendleton (and MCAS Camp 
Pendleton INRMP as outlined above) will provide a benefit to the 
flycatcher and riparian habitat on MCB Camp Pendleton. Therefore, lands 
within this installation are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 
76.1 km (47.3 mi) of habitat on MCB Camp Pendleton and an

[[Page 384]]

additional 7.5 km (4.7 mi) area shared with the adjacent Naval Weapons 
Station Seal Beach--Detachment Fallbrook (Fallbrook Naval Weapons 
Station) in this revised critical habitat designation because of this 
exemption.
    Naval Weapons Station Seal Beach-Detachment Fallbrook (Fallbrook 
Naval Weapons Station)--San Diego Management Unit, California
    Fallbrook Naval Weapons is the primary west coast supply point of 
ordnance for the U.S. Marine Corps and the large deck amphibious 
assault ships of the Pacific Fleet. Fallbrook Naval Weapons Station 
also has the only west coast maintenance facility for air-launched 
missiles for the Pacific Fleet. The installation encompasses 
approximately 3,582 ha (8,852 ac) and is located within the southern 
foothills of the Santa Ana Mountains of northern San Diego County, 
adjacent to the unincorporated community of Fallbrook, California. It 
is bounded to the north, west, and much of the south by MCB Camp 
Pendleton, with the Santa Margarita River forming the common border on 
the north between the two properties. Other than training lands on MCB 
Camp Pendleton, surrounding land use includes semi-rural agricultural 
lands that include plant nurseries, avocado and citrus groves, 
vineyards, and limited urban development.
    In the previous final critical habitat designation for flycatcher, 
we exempted Fallbrook Naval Weapons Station from the designation under 
section 4(a)(3)(B) of the Act because it was subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a) that we 
determined to provide a benefit to the flycatcher (70 FR 60886; October 
19, 2005). The INRMP was prepared to assist installation staff and 
users in their efforts to support mission operations and accommodate 
increased military mission requirements for national security and 
emergency homeland security, while meeting all environmental compliance 
responsibilities. The INRMP also provides ecosystem-based management to 
preserve, protect, and enhance natural resources on the installation, 
and provides the organizational support and communication links 
necessary for effective planning, implementation, and administration of 
the installation's natural resources. The Fallbrook Naval Weapons 
Station completed its INRMP in 2006 (which was updated from an INRMP 
developed by the Naval Ordnance Center Pacific Division in 1996) to 
address conservation and management of its natural resources, including 
conservation measures for the flycatcher (Navy 2006, Chapter 3, pp. 
110-112). Areas or habitat containing features essential to the 
conservation of flycatchers within the boundaries of Fallbrook Naval 
Weapons Station occur along portions of Pilgrim Creek and the Santa 
Margarita River.
    The flycatcher primarily receives protection from activities at 
Fallbrook Naval Weapons Station because no training occurs on the 
installation. The INRMP's management and conservation measures for the 
flycatcher consist of avoidance and minimization measures, applied to 
infrastructure development and maintenance to protect the flycatcher, 
that are part of the NEPA (42 U.S.C. 4321 et seq.) approval process 
(Navy 2006, Chapter 3, pp. 110-112). The flycatcher also receives 
indirect protection through management and conservation measures for 
the least Bell's vireo such as: (1) Protection of flycatcher habitat 
through protection of a subset of least Bell's vireo priority 
management areas; (2) fencing that protects priority areas from cattle 
grazing; (3) a Fire Management Plan that provides a higher priority 
protection for riparian habitat, due to the limited amount of riparian 
habitat on Fallbrook Naval Weapons Station, such as core areas of least 
Bell's vireo and flycatcher habitat; (4) consideration of prescribed 
burns and livestock grazing as tools for the establishment of a buffer 
area between riparian habitat and shrublands; (5) timing and location 
protections associated with prescribed burns; (6) assessment and 
mapping of riparian habitat to determine suitability for least Bell's 
vireo occupation; and (7) implementation of nonnative vegetation 
control measures, including removal of Arundo donax (giant reed) (Navy 
2006, pp. 3-118).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the 2006 INRMP for Fallbrook Naval Weapons Station 
provide a benefit to the flycatcher and riparian habitat on the 
installation. Therefore, lands subject to the INRMP for the Fallbrook 
Naval Weapons Station are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 
3.2 km (2.0 mi) of habitat on Pilgrim Creek and portions of the Santa 
Margarita River that lie within the boundaries of the Fallbrook Naval 
Weapons Station in this revised critical habitat designation because of 
this exemption.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must also consult with us 
on actions that may affect a listed species to ensure their proposed 
actions are not likely to jeopardize the continued existence of such 
species. The analysis of effects to critical habitat is a separate step 
and different standard from that of the

[[Page 385]]

effects to the species. Therefore, the difference in outcomes of these 
two analyses represents the regulatory benefit of critical habitat.
    The two regulatory standards are different and, significantly, the 
factors that are reviewed under each standard are different as well. 
The jeopardy analysis investigates the action's impact to survival and 
recovery of the species with a focus on how the action affects 
attributes such as numbers, distribution, and reproduction of the 
species. On the other hand, the adverse-modification analysis 
investigates the action's effects to the designated habitat's 
contribution to recovery with a focus on the conservation role the 
habitat plays for the listed species. This difference in the two 
consultation standards and focus of review, in some instances, will 
lead to different conclusions. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone because it will provide another and alternative focus on 
factors affecting listed species. Nonetheless, for many species (in at 
least some locations) the outcome of these analyses in terms of any 
required habitat protections will be similar because effects to habitat 
will often also result in effects to the species.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the flycatcher, the benefits of critical habitat 
include public awareness of flycatcher presence and the importance of 
habitat protection. Where a Federal nexus exists, the designation of 
critical habitat may also increase habitat protection for the 
flycatcher, which may, in some cases, allow the species to move into 
currently unoccupied areas.
    In practice, a Federal nexus exists primarily on Federal lands or 
for projects undertaken by Federal agencies or permits issued by 
Federal agencies. Since the flycatcher was listed in 1995, we have been 
consulting with Federal agencies on their effects to the flycatcher 
both for projects on Federal lands, and for projects on privately owned 
lands that had a Federal nexus to trigger consultation under section 7 
of the Act. These consultations have, in some instances, resulted in 
comprehensive conservation planning for specific areas across the 
species' range (i.e., Sprague Ranch in Kern Management Unit). These 
plans can provide sufficient flycatcher habitat protection for recovery 
of the species.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments we received, we evaluated 
whether certain lands in the proposed critical habitat were appropriate 
for exclusion from this final designation pursuant to section 4(b)(2) 
of the Act. Table 4 below provides the areas, streams, and approximate 
stream lengths (km, mi) of lands that meet the definition of critical 
habitat but are being excluded under section 4(b)(2) of the Act from 
the final critical habitat rule. An explanation of the basis for each 
exclusion is provided below.

   Table 4--Plan Type, Stream Segments, and Approximate Stream Length
 Excluded From Flycatcher Critical Habitat Under Section 4(b)(2) of the
                         Act by Management Unit
------------------------------------------------------------------------
                                                           Approximate
  Management unit and basis for      Streams segments     stream length
            exclusion                    excluded         excluded in km
                                                               (mi)
------------------------------------------------------------------------
                       Santa Clara Management Unit
------------------------------------------------------------------------
Newhall Land and Farm              Santa Clara River...        4.4 (2.7)
 Conservation Easement.
------------------------------------------------------------------------
                        Santa Ana Management Unit
------------------------------------------------------------------------
Western Riverside County Multiple  Santa Ana River.....      30.0 (18.6)
 Species HCP.
                                   San Timoteo Creek...      21.4 (13.3)
                                   Bautista Creek (two         3.1 (1.9)
                                    segments).
                                   Temecula Creek (see
                                    San Diego
                                    Management Unit).
Ramona Band of Cahuilla            Bautista Creek......        0.4 (0.3)
 Partnership.
------------------------------------------------------------------------
                        San Diego Management Unit
------------------------------------------------------------------------
San Diego County Multiple Species  San Dieguito River..        9.2 (5.7)
 HCP.
                                   San Diego River.....        9.6 (6.0)
                                   Santa Ysabel Creek          2.4 (1.5)
                                    (upper).
                                   Santa Ysabel Creek          1.1 (0.7)
                                    (lower).
                                   Sweetwater River....        2.1 (1.3)
Western Riverside County Multiple  Temecula Creek            18.7 (11.6)
 Species HCP.                       (including Vail
                                    Lake).
Orange County Southern             Ca[ntilde]ada               4.7 (2.9)
 Subregional HCP.                   Gobernadora Creek.
City of Carlsbad Habitat           Agua Hedionda Creek         3.2 (2.0)
 Management Plan.                   (two segments).            2.1 (1.3)

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La Jolla Band of Luise[ntilde]o    San Luis Rey River..       11.6 (7.2)
 Indians Management Plan.
Rincon Band of Luise[ntilde]o      San Luis Rey River..        4.3 (2.7)
 Mission Indians Management Plan.
Pala Band of Luise[ntilde]o        San Luis Rey River          8.3 (5.2)
 Mission Indians Partnership.       6.9 km (4.3 mi)
                                    segment plus four
                                    separate nearby
                                    parcels totaling an
                                    additional 1.4 km
                                    (0.9 mi).
The Barona and Viejas Groups of    San Diego River.....        0.9 (0.6)
 Capitan Grande Band of Diegueno
 Mission Indians Partnership.
------------------------------------------------------------------------
                          Owens Management Unit
------------------------------------------------------------------------
Los Angeles Department of Water    Owens River.........     128.5 (79.8)
 and Power Management Plan.
------------------------------------------------------------------------
                          Kern Management Unit
------------------------------------------------------------------------
Sprague Ranch Management Plan....  South Fork Kern             4.0 (2.5)
                                    River (north side).
Hafenfeld Ranch Management Plan..  South Fork Kern           0.30 (0.20)
                                    River (south side).
------------------------------------------------------------------------
                         Salton Management Unit
------------------------------------------------------------------------
Iipay Nation of Santa Ysabel       San Felipe Creek....        1.6 (1.0)
 Partnership.
------------------------------------------------------------------------
                     Little Colorado Management Unit
------------------------------------------------------------------------
Zuni Pueblo Management Plan......  Rio Nutria..........      35.8 (22.2)
                                   Zuni River..........      55.4 (34.4)
------------------------------------------------------------------------
                     Middle Colorado Management Unit
------------------------------------------------------------------------
LCR MSCP, including Hualapai       Colorado River,           74.1 (46.0)
 Nation.                            including upper
                                    Lake Mead.
------------------------------------------------------------------------
                       Pahranagat Management Unit
------------------------------------------------------------------------
Key Pittman State Wildlife Area    Pahranagat River            2.5 (1.6)
 Management Plan.                   (two segments).            1.4 (0.9)
Overton State Wildlife Area        Muddy River.........        3.1 (1.9)
 Management Plan.
------------------------------------------------------------------------
                      Bill Williams Management Unit
------------------------------------------------------------------------
LCR MSCP.........................  Bill Williams River.        8.9 (5.6)
------------------------------------------------------------------------
                  Hoover to Parker Dam Management Unit
------------------------------------------------------------------------
LCR MSCP, including Fort Mojave    Colorado River......     107.0 (66.4)
 and Chemehuevi Tribes.
LCR MSCP.........................  Bill Williams River.        1.7 (1.0)
------------------------------------------------------------------------
      Parker Dam to Southerly International Border Management Unit
------------------------------------------------------------------------
LCR MSCP, including Colorado       Colorado River (two       65.0 (40.4)
 River Indian Tribes and Quechan    segments).              148.0 (92.0)
 (Fort Yuma) Indian Tribe.
------------------------------------------------------------------------
                        San Juan Management Unit
------------------------------------------------------------------------
Navajo Nation Management Plan....  San Juan River (New         3.5 (2.2)
                                    Mexico).
                                   San Juan River,           51.6 (32.1)
                                    (Utah)--43.5 km
                                    (27.0 mi) of south
                                    bank plus 8.1 km
                                    (5.1 mi) of both
                                    banks on eastern
                                    most portion of
                                    segment.
Southern Ute Tribe Management      Los Pinos River.....      25.9 (16.1)
 Plan.
------------------------------------------------------------------------
                          Verde Management Unit
------------------------------------------------------------------------
Salt River Project Horseshoe and   Verde River                 9.6 (6.0)
 Bartlett Dams HCP.                 (Horseshoe Lake).
Yavapai-Apache Management Plan...  Verde River (two            2.1 (1.3)
                                    segments).                 0.7 (0.4)
------------------------------------------------------------------------
                        Roosevelt Management Unit
------------------------------------------------------------------------
Salt River Project Roosevelt Lake  Tonto Creek                12.8 (7.9)
 HCP.                               (Roosevelt Lake).
                                   Salt River                16.3 (10.1)
                                    (Roosevelt Lake).
Freeport McMoRan Pinal Creek       Pinal Creek.........        5.8 (3.6)
 Management Plan.
------------------------------------------------------------------------

[[Page 387]]

 
                Middle Gila and San Pedro Management Unit
------------------------------------------------------------------------
San Carlos Apache Tribal           San Pedro River             0.9 (0.6)
 Management Plan.                   (dispersed parcels).
------------------------------------------------------------------------
                       Upper Gila Management Unit
------------------------------------------------------------------------
U-Bar Ranch Management Plan......  Gila River                 13.8 (8.6)
                                    (dispersed parcels).
San Carlos Apache Tribal           Gila River..........      31.3 (19.5)
 Management Plan.
San Carlos Reservoir.............  Gila River (San           26.8 (16.6)
                                    Carlos Reservoir).
------------------------------------------------------------------------
                Hassayampa and Agua Fria Management Unit
------------------------------------------------------------------------
Tres Rios Safe Harbor Agreement..  Gila River..........        8.7 (5.4)
------------------------------------------------------------------------
                     San Luis Valley Management Unit
------------------------------------------------------------------------
San Luis Valley Partnership......  Rio Grande..........     119.5 (74.3)
                                   Conejos River.......      64.9 (40.4)
------------------------------------------------------------------------
                    Upper Rio Grande Management Unit
------------------------------------------------------------------------
San Ildefonso Pueblo Management    Rio Grande..........        7.7 (4.8)
 Plan.
Santa Clara Pueblo Partnership...  Rio Grande..........       10.2 (6.4)
San Juan Pueblo (Ohkay Owingeh)    Rio Grande..........        9.3 (5.8)
 Partnership.
------------------------------------------------------------------------
                    Lower Rio Grande Management Unit
------------------------------------------------------------------------
Elephant Butte Irrigation          Rio Grande..........      74.2 (46.1)
 District Canalization and
 Conservation Project.
                                  --------------------------------------
                                   Total...............  1,270.4 (789.6)
------------------------------------------------------------------------
Note: Because of the odd shape of some properties excluded, the
  exclusion of just the south bank of a portion of the San Juan River,
  and other areas adjusted described in the Summary of Changes section,
  this total will not, when added to the amount of designated critical
  habitat, equal the total overall amount of stream length proposed as
  critical habitat.

    Please note that we identified some areas within our proposed rule 
and subsequent July 12, 2012, publication that we considered for 
exclusion under section 4(b)(2) of the Act, but after further analysis, 
we did not exclude from this flycatcher critical habitat revision. In 
some instances, we did not exclude an entire area we considered (Clark 
County HCP-Virgin River; Alamo Lake State Wildlife Area-Big Sandy, 
Santa Maria, and Bill Williams River; South Fork Kern River Wildlife 
Area-Kern River, including upper Lake Isabella; and Elephant Butte 
Reservoir-Rio Grande) and in others, we did not exclude a portion of 
the lands we identified for consideration (Overton Wildlife Area-Virgin 
River, and Newhall Farm and Land-Santa Clara River and Castaic Creek). 
Explanations for our conclusions can be found in the Summary of 
Comments and Recommendations section of this final rule.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
entire proposed critical habitat designation (which include areas we 
were considering for exclusion) and related factors (Industrial 
Economics 2012, entire).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for the 
flycatcher; some of these costs will likely be incurred regardless of 
whether we designate critical habitat (baseline). The economic impact 
of the final critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species (e.g., under the Federal listing and other Federal, State, 
and local regulations). The baseline, therefore, represents the costs 
incurred regardless of whether critical habitat is designated. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat. The analysis looks 
retrospectively at baseline impacts incurred since the species was 
listed, and forecasts both baseline and incremental impacts likely to 
occur with the designation of critical habitat. For a further 
description of the methodology of the analysis, see Chapter 2, 
``Framework for the Analysis,'' of the economic analysis.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost

[[Page 388]]

economic efficiency associated with residential and commercial 
development and public projects and activities, such as economic 
impacts on water management and transportation projects, Federal lands, 
small entities, and the energy industry. Decision-makers can use this 
information to assess whether the effects of the designation might 
unduly burden a particular group or economic sector. The economic 
analysis provides estimated costs of the foreseeable potential economic 
impacts of the critical habitat designation for the flycatcher over the 
next 20 years (2012-2031), which, for most parts of the analysis, was 
determined to be the appropriate period for analysis. This is because 
limited planning information is available for most activities to 
forecast activity levels for projects beyond a 20-year timeframe. The 
economic analysis estimates impacts to water management activities, 
however, over a 30-year period (2012-2041).
    The FEA quantifies economic impacts of flycatcher conservation 
efforts associated with the following categories of economic activity: 
(1) Water management activities; (2) livestock grazing; (3) residential 
and related development; (4) tribal activities; (5) transportation; (6) 
mining and oil and gas development; and (7) recreation activities. The 
total potential incremental economic impacts for all of the categories 
in areas proposed as revised critical habitat over the next 20 years 
range from $11 million to $19 million ($950,000 to $1.7 million 
annualized), assuming a 7 percent discount rate. A very brief summary 
of the estimated impacts within each category is provided below. Please 
refer to the draft economic analysis for a comprehensive discussion of 
the potential impacts.
Transportation
    Our analysis suggests that transportation activities, such as road 
and bridge construction and maintenance, may experience the largest 
impacts. Transportation projects were more difficult to forecast, 
resulting in potential overstatement of the impacts. Our impact 
estimates were based on an increased level of consultation activity 
(and resulting project modifications for flycatcher conservation 
efforts) that is higher than the historical record of past activities. 
Transportation agencies at the Federal, State, and local level could 
incur costs associated with monitoring and education activities, 
fencing, habitat management and creation, timing restrictions, and 
administrative activities. Incremental impacts may reach $5.8 million 
over 20 years.
Water Management
    Impacts to water management activities may be the next largest of 
any of the affected economic activities; however, the majority of the 
impact of conservation efforts to protect flycatcher will occur even if 
critical habitat is not designated (they are baseline impacts). All but 
two of the major dams and reservoirs within flycatcher proposed revised 
critical habitat, the Hansen Dam and the Mojave Dam, are located along 
river segments where the species' presence is either currently 
addressed, or otherwise well known to project proponents and managing 
agencies. Associated impacts in these areas are therefore assumed to be 
baseline, where most conservation activities and associated costs will 
occur regardless of whether critical habitat is designated.
    Incremental impacts over the next 30 years (assuming a 7 percent 
discount rate) range from $1.4 million to $9.6 million. These 
incremental impacts include the costs of conservation efforts 
associated with section 7 consultations or the development of HCPs, as 
well as administrative efforts to consider potential adverse 
modification of habitat as part of future section 7 consultations.
Livestock Grazing
    Impacts to grazing activities are likely to be smaller relative to 
water and transportation activities, but are anticipated to affect a 
broader geographic area. Grazing currently occurs in nearly all of the 
Management Units that are included in this final critical habitat 
revision. As a result, some impacts may be experienced in most units. 
On Federal lands, reductions in grazing allotments are possible 
depending on the specific conditions within the unit. The estimated 
potential, present value incremental costs range from $2.2 million to 
$3.5 million over the 20-year time period of the analysis. Impacts 
include the administrative costs of consultation with the Service, the 
lost value of grazing permits associated with reductions in authorized 
Animal Unit-Months, costs of constructing and maintaining fencing, and 
costs of cowbird trapping.
Residential and Commercial Development
    Residential and related development activities are likely to be 
smaller in magnitude than grazing impacts; however estimated impacts 
are concentrated over a smaller geographic area. Nearly all impacts to 
development activities are estimated to occur in the California 
Management Units. Areas likely to see the greatest development pressure 
include Santa Barbara, Ventura, Los Angeles, Riverside, San Bernardino, 
and San Diego Counties, California, and Mohave County, Arizona.
    Because the revised critical habitat is located within the 100-year 
floodplain, the Federal Emergency Management Agency will regulate real 
estate development in any critical habitat we eventually designate. As 
a result, additional restrictions may be imposed by individual or local 
jurisdictions. The restrictions or regulations may require flood 
control facilities or other special engineering, often making 
development in floodways impractical and prohibitively expensive. Due 
to existing development restrictions, lands within critical habitat 
that can be feasibly developed will be limited to areas where real 
estate demand is high enough to justify the costs associated with 
developing the floodplain.
    Incremental impacts to residential development are estimated at 
$810,000 over 20 years. These are related to reduced land value 
associated with the need to set aside land on-site for the flycatcher; 
the need to implement additional project modifications, such as cowbird 
trapping, fencing, monitoring, and habitat management; time delays; and 
administrative costs. Because of the availability of alternative lands 
that are not designated as critical habitat in these regions, these 
costs are likely to be borne by existing landowners in the form of 
reduced value for their existing properties. The estimated impacts 
would be felt immediately, in 2012, upon the effective date of this 
final rule (see DATES), and reflect the change in the future, 
productive use of the properties.
Tribal Activities
    Incremental impacts to tribal activities of approximately $660,000 
are estimated to be associated with administrative impacts over the 20-
year time frame of the analysis. However, tribal concerns focus on the 
potential impact that the designation could have on their ability to 
make use of natural resources, including water rights, on their 
sovereign lands. The absence of some cost information related to 
potential impacts of flycatcher critical habitat on tribal lands 
results in a probable underestimate of future costs to tribal entities. 
Lands belonging to 19 tribes included within the boundaries of proposed 
revised critical habitat under consideration for exclusion from the 
final designation, are subsequently

[[Page 389]]

excluded under section 4(b)(2) of the Act (see Exclusions section).
Mining, and Oil and Gas Development
    In 2005, potential impacts to oil and gas development were not 
identified as a significant issue and thus were not considered in the 
previous economic analysis. However, proposed revised critical habitat 
in the San Juan Management Unit in San Juan County, Utah, and La Plata 
County, Colorado, generated concern, because this area serves as a 
highly developed source of oil and natural gas, with hundreds of 
existing wells. Due to the level of existing protections in riparian 
areas required by, or agreed to by, oil and gas developers and land and 
resource managers, no project modification costs are expected as a 
result of the designation of revised flycatcher critical habitat. 
However, baseline administrative costs of $33,000 for one formal and 
six informal consultations are expected due to limited oil and gas 
activities, including seismic studies and pipeline construction and 
maintenance. In addition to baseline costs, the analysis forecasts 
$11,000 in incremental administrative costs to consider adverse 
modification as part of these consultations.
    While few active mineral mining activities occur within revised 
critical habitat, the mining industry has expressed concern that water 
use by existing or potential mining operations could be affected by 
flycatcher conservation activities, particularly the designation of 
critical habitat. There are currently no data that indicate whether 
existing or future diversions of water for mining activities (including 
groundwater pumping) reduce stream flow or modify hydrologic conditions 
to the degree that adversely impacts the flycatcher and its riparian 
habitat. As such, the analysis does not quantify the probability or 
extent to which water use for mining purposes would need to be 
curtailed or modified to remedy impacts to flycatcher. Additionally, 
impacts to extractive mining operations, such as sand and gravel pits, 
that cause direct habitat loss may occur as the result of critical 
habitat designation. However, project modification costs associated 
with these operations are uncertain due to the limited consultation 
history, and, as a result, our analysis is unable to forecast economic 
impacts for mining activities.
Recreation
    Incremental impacts to recreational activities are unlikely to 
result from the designation. In the baseline, activities may be 
affected at Lake Isabella and Lake Roosevelt; however, baseline 
economic impacts in these areas are likely to be limited to $1.9 
million over 20 years. In addition, management activities at a picnic 
site in the San Bernardino National Forest results in present value 
baseline costs of $39,000.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Arizona Ecological Service's Office (see ADDRESSES) or 
by downloading from the Internet at http://www.regulations.gov at 
Docket No. FWS-R2-ES-2011-0053.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. All Department of Defense lands that met 
the definition of flycatcher critical habitat were exempted from 
designation (see Exemptions section above). In addition we found no 
other proposed areas that had national security impacts. Consequently, 
the Secretary is not exercising his discretion to exclude any areas 
from this final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    We have excluded areas from critical habitat based on land and 
resource management plans, conservation plans or agreements, or other 
conservation partnerships where the benefits of exclusion from critical 
habitat outweigh the benefits of including an area from critical 
habitat. We consider a current land management or conservation plan 
(HCPs as well as other types) to provide adequate management or 
protection if it meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We believe that the following HCPs, plans, agreements, and 
partnerships fulfill the above criteria or otherwise provide benefits 
that outweigh the benefits from inclusion as critical habitat and are 
excluding these areas. We organize the following discussion of 
exclusions below by Management Unit. We will note below where a 
discussion will occur if HCPs occur across multiple Management Units or 
we consolidate multiple lands into a single discussion.

Summary of Exclusions

Santa Clara Management Unit
Newhall Land and Farming Company Natural River Management Plan
    Newhall Land and Farming Company (Newall LFC) has developed a 
Natural River Management Plan (NRMP) (Valencia Company 1998, entire) 
for the long-term conservation and management of the biological 
resources within their lands, including a portion of the Santa Clara 
River (including the Santa Clara-San Francisquito Creek confluence) 
that we proposed as flycatcher critical habitat. The Corps and CDFG 
approved the NRMP in 1998. The NRMP provides management measures 
designed to protect, restore, monitor, manage, and enhance habitat for 
multiple species, including the flycatcher, that occur along the main 
stem of the Santa Clara River within the Santa Clara Management Unit. 
Protective measures for flycatcher habitat in the NRMP include: (1) The 
creation of new riverbed areas, including planting wetland mitigation 
sites; (2) revegetation of riparian areas; (3) removal of invasive 
plants such as giant reed (Arundo donax) and tamarisk (Tamarix sp.); 
(4) protecting wetlands from urban runoff by establishing a revegetated 
upland buffer between developed areas and the river; (5) implementing a 
Drainage Quality Management Plan with Best Management Practices to 
ensure water quality within the river corridor; and (6) implementing 
the biological mitigation measures for the Newhall Ranch Specific Plan 
that includes restricting pets and off-road vehicles from the area and 
restricting access to the river

[[Page 390]]

corridor by limiting hiking and biking to the river trail system.
    Of particular importance to the conservation of the flycatcher and 
its habitat under the NRMP is the inclusion of substantial conservation 
easements. Conservation easements within the proposed Santa Clara 
Management Unit boundaries that have already been conveyed to the CDFG 
over approximately 4.4 km (2.7 mi) of the Santa Clara River corridor 
east of Interstate 5 (I-5). These easements will ensure substantial 
protection and provide for long-term management of flycatcher habitat 
so it will remain in a natural condition in perpetuity. Use of the 
easement is limited to the preservation and enhancement of native 
species and their habitats, including the flycatcher and its habitat. 
Based on the placement of the conservation easement, the physical and 
biological features that are essential to flycatcher conservation are 
protected along this 4.4-km (2.7-mi) segment of the Santa Clara River 
within the proposed Santa Clara Management Unit. Three flycatcher 
breeding sites are known to occur along the Santa Clara River and the 
stream was known to be occupied at the time of listing.
    The NRMP combined with the completed conservation easements 
provides for the flycatcher and the physical and biological features 
essential to flycatcher habitat conservation, and addresses 
conservation issues from a coordinated, integrated perspective rather 
than a piecemeal, project-by-project approach, thus resulting in 
coordinated landscape-scale conservation that can contribute to genetic 
diversity by preserving covered species populations, habitat, and 
interconnected linkage areas that support recovery of the flycatcher 
and other listed species. Additionally, we have completed section 7 
consultation under the Act on the effects of the NRMP on the flycatcher 
and found that it would not jeopardize the continued existence of the 
species.
    The conservation easement under the NRMP provides permanent 
protection to approximately 4.4 km (2.7 mi) of the Santa Clara River, 
or about 15 percent of Newhall LFC lands proposed as critical habitat 
within the Santa Clara Management Unit. Approximately 689 ha (1,702 
ac), or 85 percent, of Newhall LFC lands in the Santa Clara Management 
Unit, representing other portions of the Santa Clara River (12.2 km, 
8.8 mi) and Castaic Creek (4.8 km, 3.0 mi), were also proposed as 
critical habitat, but because they are not currently conserved and 
managed through finalized easements, they are designated as critical 
habitat (see Summary of Comments and Recommendations section below). 
Below is an analysis of the relative benefits of inclusion and 
exclusion of 4.4 km (2.7 mi) of the Santa Clara Management Unit for 
which the Secretary is exercising his discretion to exclude from this 
final revised critical habitat designation under section 4(b)(2) of the 
Act.
Benefits of Inclusion--Newhall LFC
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Santa Clara River is known to have flycatcher territories and 
the portion of the river that is being evaluated for exclusion has 
undergone section 7 consultation under the jeopardy standard related to 
the NMRP and conservation easements. Critical habitat along the Santa 
Clara River may provide a regulatory benefit for the flycatcher under 
section 7 of the Act when there is a Federal nexus present for a 
project that might adversely modify critical habitat. Because these 
lands are privately owned, future Federal actions would likely be 
limited. Yet, projects in wetland areas could require a 404 Corps 
permit under the Clean Water Act (33 U.S.C. 1251 et seq.) and 
evaluation under section 7 of the Act for both jeopardy and adverse 
modification since flycatchers are known to occur along the Santa Clara 
River.
    However, as a result of the establishment and implementation of 
protections associated with the conservation easement managed under 
Newhall LFC's NRMP (which include the involvement of the Corps), it is 
unlikely that future Federal actions would impact the overall goal of 
the easements) for 4.4 km (2.7 mi) of the Santa Clara River and cause 
adverse modification of flycatcher critical habitat. If actions that 
could affect flycatchers and their habitat do occur, it is likely that 
the protections provided the species and its habitat under section 
7(a)(2) of the Act would be largely redundant with the protections 
offered by the NRMP and conservation easement. Thus, we expect the 
incremental regulatory benefit of including these areas in critical 
habitat would be minimal.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws, such as 
CEQA, or the Clean Water Act. These laws analyze the potential for 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including these portions of the Santa Clara River 
within the designation because this area is well known as an important 
area for flycatcher management and recovery. The process of proposing 
and finalizing revised critical habitat provided the opportunity for 
peer review and public comment; this process is valuable to land owners 
and managers, such as Newhall LFC, in prioritizing conservation and 
management of identified areas. Additionally, because managing agencies 
and partners such as the Corps, CDFG, and Newhall LFC's developed and 
are implementing a long-term conservation easement that addresses 
flycatcher habitat, minimal additional educational benefits or 
additional support for implementing other environment regulations are 
expected to be realized in these areas.
    In summary, we believe that designating critical habitat would 
provide minimal regulatory benefits under section 7(a)(2) of the Act 
for these 4.4 km (2.7 mi) along the Santa Clara River because of the 
long-term protection and management established through Newhall LFC's 
conservation easement. Because Newhall LFC and the managing agencies 
not only expressly addressed flycatcher conservation in the easement, 
but also were fully engaged in the rulemaking process for designating 
critical habitat, few additional educational benefits or support for 
other environmental regulations would be realized under these 
circumstances.
Benefits of Exclusion--Newhall LFC
    A considerable benefit from excluding a portion of Newhall LFC 
along the

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Santa Clara River as flycatcher critical habitat is the maintenance and 
strengthening of ongoing conservation partnerships. We believe 
conservation benefits would be realized by: (1) Continuing and 
strengthening of our effective working relationship with Newhall LFC to 
promote voluntary, proactive conservation of the flycatcher and its 
habitat as opposed to reactive regulation; (2) allowance for continued 
meaningful collaboration and cooperation in working toward species 
recovery, including conservation benefits that might not otherwise 
occur; and (3) encouragement of additional conservation easements and 
other conservation and management plan development in the future on 
Newhall LFC's other lands for this and other federally listed and 
sensitive species.
    The NRMP and associated conservation easement provides substantial 
protection and management for the flycatcher and the physical and 
biological features essential to the conservation of the species, and 
addresses conservation issues from a coordinated, integrated 
perspective rather than a piecemeal, project-by-project approach (as 
would occur under section 7 of the Act), thus resulting in coordinated 
landscape-scale conservation that can contribute to genetic diversity 
by preserving covered species populations, habitat, and interconnected 
linkage areas that support recovery of the flycatcher and other listed 
species.
    Additionally, many landowners perceive critical habitat as an 
unfair and unnecessary regulatory burden given the expense and time 
involved in developing and implementing conservation and management 
plans on private lands. Exclusion of Newhall LFC lands that are in 
conservation easements and managed by the NRMP will also strengthen the 
partnership between the Service and Newhall LFC, which may encourage 
other conservation partnerships between our two entities in the future.
    In summary, we believe excluding lands from critical habitat that 
are covered by the NRMP conservation easements could provide the 
significant benefit of maintaining our existing partnership and 
fostering new ones.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Newhall 
LFC
    We reviewed and evaluated the benefits of inclusion and benefits of 
exclusion for all lands owned by Newhall LFC proposed as critical 
habitat for the flycatcher. The benefits of including conserved and 
managed lands in the final flycatcher critical habitat designation are 
small. The conservation easement on portions of the Santa Clara River 
that encompass approximately 4.4 km (2.7 mi) of the Santa Clara 
Management Unit, are already managed and conserved under the NRMP, and 
provide a long-term benefit to the flycatcher. There is also minimal 
educational or ancillary benefit of designating critical habitat in 
this conservation easement; education information regarding the 
importance of the easement was identified during the development and 
implementation of Newhall LFC's NRMP. Similarly, the incremental 
regulatory benefit provided by a critical habitat designation is 
minimized because it is partially redundant with the existing 
protection within the conservation easement under the NRMP. Therefore, 
we do not believe critical habitat designation for the flycatcher 
within the conservation easement will provide significant regulatory, 
educational, or ancillary benefits for these areas.
    The exclusion of NRMP conserved and managed areas in the Santa 
Clara Management Unit will benefit the partnership that we have with 
Newhall LFC and other participating property owners, and encourage the 
conservation of lands associated with the development and 
implementation of future conservation management plans.
    In summary, we find that excluding areas from critical habitat that 
are receiving both long-term conservation and management for the 
purpose of protecting the flycatcher in the Santa Clara Management Unit 
will preserve our partnership with Newhall LFC and encourage the 
conservation of lands associated with development. These partnership 
benefits are significant and outweigh the small potential regulatory, 
educational, and ancillary benefits of including these portions of the 
Santa Clara Management Unit in final revised critical habitat for the 
flycatcher. Therefore, this conservation easement provides greater 
protection of flycatcher breeding and foraging habitat than could be 
gained through the project-by-project analysis through a designation of 
critical habitat.
Exclusion Will Not Result in Extinction of the Species--Newhall LFC
    We determined that exclusion of 4.4 km (2.7 mi) of the Santa Clara 
River in the Santa Clara Management Unit from the final revised 
critical habitat designation for the flycatcher will not result in 
extinction of the species. These areas are permanently conserved and 
managed to provide a benefit to the flycatcher and its habitat, thus 
providing assurances that the species will not go extinct as a result 
of exclusion from critical habitat designation. Therefore, based on the 
above discussion, the Secretary is exercising his discretion to exclude 
approximately 4.4 km (2.7 mi) of land in the Santa Clara Management 
Unit from this final revised critical habitat designation.
Santa Ana Management Unit
Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)
    The Western Riverside County MSHCP is a comprehensive, multi-
jurisdictional plan encompassing approximately 510,000 ha (1,260,000 
ac) of the County of Riverside west of the San Jacinto Mountains (Dudek 
and Associates Inc. 2003, p. 1.1). The Western Riverside County MSHCP 
is a subregional plan under the State's Natural Community Conservation 
Planning Act (NCCP) and was developed in cooperation with the CDFG 
(Dudek and Associates Inc. 2003, p. 1.1). The Western Riverside County 
MSHCP is a multi-species conservation program designed to minimize and 
mitigate the effects of expected habitat loss and associated incidental 
take of 146 listed and nonlisted ``covered species'', including the 
flycatcher (Dudek and Associates Inc. 2003, p. 1.17). Conservation of 
the flycatcher is addressed in the Western Riverside County MSHCP. A 
section 10(a)(1)(B) permit for the Western Riverside County MSHCP was 
issued to 22 permittees on June 22, 2004, for a period of 75 years 
(Service 2004, p. 1). Currently, there are 27 permittees for the 
Western Riverside County MSHCP.
    When fully implemented, the Western Riverside County MSHCP will 
conserve approximately 61,917 ha (153,000 ac) of new conservation lands 
(Additional Reserve Lands) in addition to the approximately 140,246 ha 
(347,000 ac) of pre-existing natural and open space areas (Public/
Quasi-Public (PQP) lands) (Dudek and Associates Inc. 2003, p. 1.16-
1.17). The PQP lands include those under the ownership of public or 
quasi-public agencies, primarily the USFS, Corps, and Bureau of Land 
Management (BLM), as well as permittee-owned or controlled open-space 
areas managed by the State of California, Riverside County, and Orange 
County Water District. The Additional Reserve Lands are not fully 
mapped or precisely delineated (``hard-lined''); rather they are 
textual descriptions of habitat necessary to meet the conservation 
goals for all covered species within the boundaries of the 
approximately

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202,343 ha (500,000 ac) Western Riverside County MSHCP Conservation 
Area and are determined as implementation of the Western Riverside 
County MSHCP occurs.
    In our analysis of the effects to flycatcher for the issuance of 
the Western Riverside County MSHCP permit, we acknowledged that 
specific conservation objectives would be provided in the Western 
Riverside County MSHCP to ensure that suitable habitat and known 
populations of flycatcher would persist (Service 2004, p. 326). To this 
effect the specific conservation objectives in the Western Riverside 
County MSHCP for the flycatcher include conserving at least 4,282 ha 
(10,580 ac) of core habitat (breeding and migration habitat) and 
linkage areas (connection between core areas) in the Western Riverside 
County MSHCP Conservation Area (Dudek and Associates Inc. 2003, p. 
B.475). The Western Riverside County MSHCP will provide for 
conservation of 100 percent of breeding habitat for the flycatcher, 
including a 100-m (328-ft) buffer adjacent to breeding areas (Dudek and 
Associates Inc. 2003, p. B.475; Service 2004, pp. 27-28). In addition, 
the Western Riverside County MSHCP requires compliance with a Riparian-
Riverine Areas and Vernal Pool policy that contains provisions 
requiring 100 percent avoidance and long-term management and protection 
of breeding habitat not included in the conservation areas, unless a 
Biologically Equivalent or Superior Preservation Determination can 
demonstrate that a proposed alternative will provide equal or greater 
conservation benefits than avoidance (Dudek and Associates Inc. 2003, 
p. B.475; Service 2004, pp. 26-28). In addition to these efforts, 
monitoring efforts would occur at least every 3 years to identify 
breeding and nesting sites; cowbird trapping would occur, if necessary; 
and harmful nonnative vegetation, such as giant reed (Arundo donax) 
would be removed.
    In our 2004 biological opinion we evaluated the effects of the 
Western Riverside County MSHCP on the flycatcher and its habitat that 
is found within the plan boundaries, and determined the plan will not 
jeopardize the continued existence of the flycatcher (Service 2004, p. 
227). In addition, we acknowledged in section 14.10 of the Implementing 
Agreement (IA) for the Western Riverside County MSHCP that the plan 
provides a comprehensive, habitat-based approach to the protection of 
covered species, including the flycatcher, by focusing on lands 
essential for the long-term conservation of the covered species and 
appropriate management for those lands (Western Riverside County 
Regional Conservation Authority et al. 2003, p. 51). The 1995 final 
listing rule for the flycatcher identified the most significant threats 
to the species are the loss, modification, and fragmentation of its 
habitat, and brood-parasitism by the brown-headed cowbird (60 FR 10694; 
February 27, 1995). The Western Riverside County MSHCP helps to address 
these threats through a regional planning effort, and outlines species-
specific objectives and criteria for flycatcher conservation.
    In summary, the Western Riverside County MSHCP provides a 
comprehensive habitat-based approach to the protection of covered 
species, including the flycatcher, by focusing on lands essential for 
the long-term conservation of the covered species and appropriate 
management of those lands (Western Riverside County Regional 
Conservation Authority et al. 2003, p. 51).
Benefits of Inclusion--Western Riverside County MSHCP
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The streams being evaluated are known to be occupied by flycatchers 
and have undergone section 7 consultation under the jeopardy standard 
related to the Western Riverside County MSHCP. Portions of the proposed 
stream segments of the Santa Ana River, Temecula Creek and San Timoteo 
Creek, and the entirety of the proposed Bautista Creek segment, occur 
within the Western Riverside County MSHCP boundary. These stream 
segments were not within the geographical area known to be occupied at 
the time of listing. Following listing, flycatcher territories were 
detected within these segments. As a result of those territory 
detections and the criteria we established, based upon flycatcher 
dispersal, migration, and movement behaviors, these segments are now 
considered occupied.
    Therefore, regardless of critical habitat designation, these 
segments will be subject to section 7 consultation under the jeopardy 
standard as well as the take prohibitions in section 9 of the Act. 
Thus, it is difficult to differentiate meaningfully between measures 
implemented solely to minimize impacts to critical habitat from those 
implemented to minimize impacts to the flycatcher. Therefore, in the 
case of the flycatcher, we believe any additional regulatory benefits 
of critical habitat designation are minimized because the regulatory 
benefits from designation can be essentially indistinguishable from the 
benefits already afforded through sections 7 and 9 of the Act.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the flycatcher and its 
habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of the flycatcher, 
however, there have already been multiple occasions when the public has 
been educated about the species. The Western Riverside County MSHCP was 
developed over a 5-year period, and has been in place for almost a 
decade. Implementation of the subarea plans is formally reviewed yearly 
through publicly available annual reports, again providing extensive 
opportunity to educate the public and landowners about the location of, 
and efforts to conserve, essential flycatcher habitat. As discussed 
above, the permittees and stakeholders of the Western Riverside County 
MSHCP are aware of the value of these lands to flycatcher conservation, 
and conservation measures are already in place to protect essential 
occurrences of the flycatcher and its habitat.
    Furthermore, essential habitat covered by the Western Riverside 
County MSHCP was included in the previous proposed designation of 
critical habitat published in the Federal Register on October 12, 2004 
(69 FR 60706) and the proposed designation published in the Federal 
Register on August 15, 2011 (76 FR 50542). Additionally, this 
publication was announced in a press release and information was posted 
on the Service's Web site, which ensured that the proposal reached a 
wide audience. Therefore, much of the educational benefits of critical 
habitat designation (such as providing information to the County of 
Riverside and other stakeholders on areas important to the long-term 
conservation of this species) have largely been realized through 
development and ongoing implementation of the Western Riverside County 
MSHCP, through both

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rules proposing these areas as critical habitat, and through the 
Service's public outreach efforts.
    Critical habitat designation can also result in ancillary 
conservation benefits to the flycatcher by triggering additional review 
and conservation through other Federal and State laws such as the Clean 
Water Act and CEQA. These laws analyze the potential for projects to 
significantly affect the environment. However, essential habitat within 
western Riverside County has been identified in the Western Riverside 
County MSHCP and is either already protected or targeted for protection 
under the plans and thus we conclude the potential regulatory benefits 
resulting from designation of critical habitat would be negligible. 
Thus review of development proposals affecting essential habitat under 
CEQA by the County of Riverside already takes into account the 
importance of this habitat to the species and the protections required 
for the species and its habitat under the MSHCP. As discussed above, we 
conclude the potential regulatory benefits resulting from designation 
of critical habitat would be negligible because the outcome of a future 
section 7 consultation would not result in greater conservation for 
flycatcher essential habitat than currently is provided under the 
Western Riverside County MSHCP.
    Based on the above discussion, we believe section 7 consultations 
for critical habitat designation conducted under the standards required 
by the Ninth Circuit Court in the Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service decision would provide little conservation 
benefit and would be largely redundant with those benefits attributable 
to listing as well as those already provided by the Western Riverside 
County MSHCP. Therefore, we determine the regulatory benefits of 
designating those stream segments as flycatcher critical habitat, such 
as protection afforded through the section 7(a)(2) consultation 
process, are minimal. We also conclude that the educational and 
ancillary benefits of designating essential habitat covered by the 
Western Riverside County MSHCP would be minor because the location of 
essential habitat for this species within Western Riverside County and 
the importance of conserving such habitat is well known through 
development and implementation of the MSHCP and the independent 
regulatory protection already provided under CEQA and the Western 
Riverside County MSHCP.
Benefits of Exclusion--Western Riverside County MSHCP
    The benefits of excluding from critical habitat designation the 
stream segments within the boundaries of the Western Riverside County 
MSHCP are significant and include: (1) Conservation management 
objectives for the flycatcher and its habitat identified in the MSHCP, 
described above; (2) continued and strengthened effective working 
relationships with all Western Riverside County MSHCP permittees and 
stakeholders to promote the conservation of the flycatcher and its 
habitat; (3) continued meaningful collaboration and cooperation in 
working toward recovery of this species, including conservation 
benefits that might not otherwise occur; (4) encouragement of other 
entities within the range of the flycatcher to complete HCPs; and (5) 
encouragement of additional HCPs and other conservation plan 
development in the future on other private lands that include the 
flycatcher and other federally listed species.
    Additionally, the Orange County Water District (OCWD) and the Corps 
cooperatively manage the lands within the Prado Flood Control Basin. 
Prado Basin is a core habitat area and supports the largest known 
population of the flycatcher within the boundaries of the Western 
Riverside County MSHCP (Service 2004, p. 49). The benefits of excluding 
non-Federal lands within the Prado Flood Control Basin from critical 
habitat designation are significant and include: (1) That the 
conservation management objectives for the flycatcher and its habitat 
identified by the OCWD, described above; (2) continued and strengthened 
effective working relationships with all Western Riverside County 
MSHCP's jurisdictions and stakeholders to promote the conservation of 
the flycatcher and its habitat; (3) continued meaningful collaboration 
and cooperation in working toward recovering this species, including 
conservation benefits that might not otherwise occur; and (4) 
encouragement of additional HCP and other conservation plan development 
in the future on other private lands.
    We developed close partnerships with the County of Riverside and 
other stakeholders through the development of the Western Riverside 
County MSHCP, which incorporates appropriate protections and management 
(described above) for the flycatcher and its habitat, and the physical 
or biological features essential to the conservation of this species. 
Those protections are consistent with statutory mandates under section 
7 of the Act to avoid destruction or adverse modification of critical 
habitat. Furthermore, this plan goes beyond that requirement by 
including active management and protection of essential habitat areas. 
By excluding the stream segments within the boundaries of the Western 
Riverside County MSHCP from critical habitat designation, we are 
eliminating a redundant layer of regulatory review for projects covered 
by the Western Riverside County MSHCP and encouraging new voluntary 
partnerships with other landowners and jurisdictions to protect the 
flycatcher and other listed species. As discussed above, the prospect 
of potentially avoiding a future designation of critical habitat 
provides a meaningful incentive to plan proponents to extend voluntary 
protections to endangered and threatened species and their habitats 
under a conservation plan. Achieving comprehensive landscape-level 
protection for listed species, such as the flycatcher through their 
inclusion in regional conservation plans, provides a key conservation 
benefit to the species. Our ongoing partnerships with the County of 
Riverside and permittees and stakeholders of the regional Western 
Riverside County MSHCP, and the landscape-level multiple species 
conservation planning efforts they promote, are essential to achieve 
long-term conservation of the flycatcher.
    As noted earlier, some permittees and stakeholders of the Western 
Riverside County MSHCP permittees have expressed the view that critical 
habitat designation of lands covered by the Western Riverside County 
MSHCP devalues the conservation efforts of plan proponents and the 
partnerships fostered through the development and implementation of the 
plans, and would discourage development of additional HCPs and other 
conservation plans in the future. Permittees and stakeholders of the 
Western Riverside County MSHCP have repeatedly stated that exclusion of 
lands covered by the plan would prove beneficial to our partnership 
(WRCRCA 2011, p. 7). The Service has previously found that: (1) 
Implementation of the avoidance, minimization, and mitigation measures 
identified in the Western Riverside County MSHCP will reduce impacts to 
the flycatcher; (2) the conservation objectives for the flycatcher, as 
described above, will be met; (3) the proposed action is not likely to 
jeopardize the continued existence of the species; and (4) the Western 
Riverside County MSHCP provides a comprehensive, habitat-based approach 
to the protection of Covered Species,

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including the flycatcher (WRCRA et al. 2003, p. 51; Service 2004, p. 
227). The Service finds this plan is currently being implemented. Where 
an existing HCP provides protection for a species and its essential 
habitat within the plan area, the benefits of preserving existing 
partnerships by excluding the covered lands from critical habitat are 
most significant. Under these circumstances, excluding lands owned by 
or under the jurisdiction of the permittees of the Western Riverside 
County MSHCP and other stakeholders within the boundary of the Western 
Riverside County MSHCP promotes positive working relationships and 
eliminates impacts to existing and future partnerships while 
encouraging development of additional HCPs for other species.
    Large-scale HCPs, such as the Western Riverside County MSHCP, take 
many years to develop, and foster a strategic ecosystem-based approach 
to habitat conservation planning by addressing conservation issues 
through a coordinated approach. If local jurisdictions were to require 
landowners to individually obtain incidental take permits (ITPs) under 
section 10 of the Act prior to the issuance of a building permit, the 
local jurisdiction would incur no costs associated with the landowner's 
need for an ITP. However, this approach would result in uncoordinated, 
project-by-project conservation that would be less likely to achieve 
listed species recovery as conservation measures would be determined on 
a project-by-project basis instead of on a comprehensive, landscape-
level scale. We, therefore, believe that fostering with local 
jurisdictions to encourage the development of regional HCPs affords 
proactive landscape-level conservation for multiple species. The 
exclusion from critical habitat designation of covered lands subject to 
protection and management under such plans will promote these 
partnerships and result in greater protection for listed species, 
including the flycatcher, than would be achieved through section 7 
consultation.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Western 
Riverside County MSHCP
    We reviewed and evaluated the exclusion of stream segments within 
the boundaries of the Western Riverside County MSHCP from our revised 
designation of critical habitat, and we determined the benefits of 
excluding these lands outweigh the benefits of including them. The 
benefits of including these lands in the designation are small because 
the regulatory, educational, and ancillary benefits that would result 
from critical habitat designation are largely redundant with the 
regulatory, educational, and ancillary benefits already afforded 
through the Western Riverside County MSHCP and under Federal and State 
law. The outcome of any future section 7 consultation would not result 
in greater conservation for flycatcher essential habitat than currently 
is provided under the Western Riverside County MSHCP.
    In contrast to the minor benefits of inclusion, the benefits of 
excluding lands covered by the Western Riverside County MSHCP from 
critical habitat designation are significant. Exclusion of these lands 
will help preserve the partnerships we developed with local 
jurisdictions and project proponents through the development and 
ongoing implementation of the Western Riverside County MSHCP, and aid 
in fostering future partnerships for the benefit of listed species. 
Designation of lands covered by the Western Riverside County MSHCP and 
cooperating stakeholders may discourage other partners from seeking, 
amending, or completing NCCP-HCP plans that cover the flycatcher and 
other listed species. Designation of critical habitat does not require 
that management or recovery actions take place on the lands included in 
the designation. However, the Western Riverside County MSHCP will 
provide significant conservation and management of the flycatcher and 
its habitat, and help achieve recovery of this species through habitat 
enhancement and management, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species.
    In consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Western 
Riverside County MSHCP section above, we determine the significant 
benefits of exclusion outweigh the minor benefits of critical habitat 
designation, because any section 7 consultations for critical habitat 
designation conducted under the standards required by the Ninth Circuit 
Court in the Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service decision would provide little conservation benefit and would be 
largely redundant with those benefits attributable to listing as well 
as those already provided by the Western Riverside County MSHCP. 
Therefore, we determine the regulatory benefits of designating those 
stream segments as flycatcher critical habitat, such as protection 
afforded through the section 7(a)(2) consultation process, are minimal. 
We also conclude that the educational and ancillary benefits of 
designating essential habitat covered by the Western Riverside County 
MSHCP would be minor because the location of essential habitat for this 
species within Western Riverside County and the importance of 
conserving such habitat is well known through development and 
implementation of the MSHCP and the independent regulatory protection 
already provided under CEQA and the Western Riverside County MSHCP.
Exclusion Will Not Result in Extinction of the Species--Western 
Riverside County MSHCP
    We determine that the exclusion of stream segments within the 
boundaries of the Western Riverside County MSHCP from the designation 
of critical habitat for the flycatcher will not result in extinction of 
the species. The Service continues to review all Federal project 
proposals impacting riparian habitat occupied by the flycatcher through 
the section 7 process, and will ensure that all development carried out 
does not jeopardize the continued existence of the flycatcher. Thus, 
the section 7 process and protection provided by the Western Riverside 
County MSHCP and cooperating stakeholders provide assurances that this 
species will not go extinct as a result of excluding these lands from 
the critical habitat designation. Therefore, based on the protections 
outlined above and per the provisions laid out in the Implementation 
Agreement, to the extent consistent with the requirements of section 
4(b)(2) of the Act, the Secretary is exercising his discretion to 
exclude from critical habitat, 30.0 km (18.6 mi) of non-Federal lands 
on the Santa Ana River (including Prado Basin), 21.4 km (13.3 mi) of 
San Timoteo Creek (Canyon), 3.5 km (2.2 mi) of non-Federal lands on 
Bautista Creek, and 18.7 km (11.6 mi) of Temecula Creek (including Vail 
Lake) within the planning area boundary of the Western Riverside County 
MSHCP.
Ramona Band of Cahuilla Partnership
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
San Diego Management Unit
San Diego Multiple Species Conservation Program (MSCP)--County of San 
Diego Subarea Plan
    The San Diego MSCP is a comprehensive, multi-jurisdictional plan 
encompassing approximately

[[Page 395]]

235,626 ha (582,243 ac) of the County of San Diego (County of San Diego 
1997, p. 2.1). The San Diego MSCP is a subregional plan under the 
State's NCCP and was developed in cooperation with the County of San 
Diego and CDFG (County of San Diego 1997, p. 1.1). The San Diego MSCP 
is a multi-species conservation program designed to minimize and 
mitigate the effects of expected habitat loss and associated incidental 
take of 85 federally listed and sensitive species, including the 
flycatcher (County of San Diego 1997, p. 1.1). Conservation of the 
flycatcher is addressed in the San Diego MSCP. A section 10(a)(1)(B) 
permit was issued to the County of San Diego under the San Diego MSCP 
on March 12, 1998, for a period of 50 years (Service 1998, pp. 1-14). 
When fully implemented, the San Diego MSCP will conserve approximately 
69,574 ha (171,920 ac) of preserve lands within the Multi-Habitat 
Planning Area (MHPA) (City of San Diego Subarea Plan), Pre-Approved 
Mitigation Areas (PAMA) (County of San Diego Subarea Plan), and 
Mitigation Area (City of Poway Subarea Plan).
    The County of San Diego has both ``hardline'' boundaries as well as 
preserve areas that without ``hardline'' boundaries. In areas where the 
``hardline'' boundaries are not defined, the County's Subarea Plan 
identifies areas where mitigation activities should be focused to 
assemble its preserve areas or the PAMA. Those areas of the County of 
San Diego Subarea preserve, and other San Diego MSCP subarea preserves 
that are either conserved or designated for inclusion in the preserves 
under the plan, are referred to as the MSCP preserve in this 
discussion. When completed the public sector (Federal, State, and local 
government) and private landowners will have contributed 44,010 ha 
(108,750 ac) to the MSCP preserve. Currently and in the future, Federal 
and State governments, local jurisdictions and special districts, and 
managers of privately owned lands will manage and monitor their lands 
in the MSCP preserve for species and habitat protection (County of San 
Diego 1997, p. 2-1).
    Specific conservation objectives in the County of San Diego Subarea 
Plan for the flycatcher include preserving and managing 1,344 ha (3,322 
ac) of riparian habitat within the preserve planning area (Service 
1998, p. 36). Additionally, the County of San Diego Subarea Plan 
requires surveys for the species, and occupied habitat will be 
identified and avoided to the maximum extent practicable (Service 1998, 
p. 37). Direct effects to the flycatcher will be minimized through the 
requirement of avoidance, minimization, and mitigation including 
restrictions on clearing of occupied habitat during breeding season 
(Service 1998, p. 36). Unavoidable impacts will be mitigated to ensure 
no net loss of wetlands (Service 1998, p. 37). Area specific management 
directives will include measures to provide appropriate successional 
habitat, upland buffers for all known populations, cowbird control, 
specific measures to protect against detrimental edge effects to this 
species, and monitoring (Service 1998, p. 37).
    In our 1998 biological opinion, we evaluated the effects of the 
plan on the flycatcher and its habitat that is found within the plan 
boundaries, and we determined the anticipated take is not likely to 
jeopardize the flycatcher (Service 1998, p. 64). Furthermore, section 
1.7 of the Implementation Agreement for the County of San Diego Subarea 
Plan states that the plan provides comprehensive, long-term habitat 
conservation for the protection of multiple species, including the 
flycatcher, and the preservation of natural vegetation communities 
(County of San Diego 1998, p. 2). The 1995 listing rule for the 
flycatcher identified the most significant threats to the species are 
the loss, modification, and fragmentation of its habitat, and brood-
parasitism by the brown-headed cowbird (60 FR 10694; February 27, 
1995).
    In summary, the County of San Diego Subarea Plan incorporates 
special management considerations necessary to manage the covered 
species, including the flycatcher, in a manner that will provide for 
the conservation of the species within the plan area (County of San 
Diego 1998, p. 23).
Benefits of Inclusion--San Diego County MSCP
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The streams we evaluated are known to be occupied by flycatchers 
and have undergone section 7 consultation under the jeopardy standard 
related to the San Diego County MSCP. Portions of the San Diego River's 
and Santa Ysabel Creek's stream segments and entire proposed segments 
of the Sweetwater and San Dieguito Rivers that we proposed to designate 
as flycatcher critical habitat occur within the San Diego MSCP 
boundary. All of these segments were not within the geographical area 
known to be occupied at the time of listing. Following listing, 
flycatcher territories were detected within these stream segments. As a 
result of those territory detections and the criteria we established, 
based upon flycatcher dispersal, migration, and movement behaviors, 
these segments are now considered occupied.
    Therefore, regardless of critical habitat designation, the segments 
will be subject to a section 7 consultation under the jeopardy standard 
as well as the take prohibitions in section 9 of the Act. Thus, it is 
difficult to differentiate meaningfully between measures implemented 
solely to minimize impacts to critical habitat from those implemented 
to minimize impacts to the flycatcher. Therefore, in the case of the 
flycatcher, we believe any additional regulatory benefits of critical 
habitat designation would be minimal because the regulatory benefits 
from designation are essentially indistinguishable from the benefits 
already afforded through sections 7 and 9 of the Act.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the flycatcher and its 
habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of the flycatcher, 
however, there have already been multiple occasions when the public has 
been educated about the species. The framework of the regional San 
Diego MSCP was developed over a 7-year period, while the City and 
County subarea plans have been in place for over a decade. 
Implementation of the subarea plans is formally reviewed yearly through 
publicly available annual reports and a public meeting, again providing 
extensive opportunity to educate the public and landowners about the 
location of, and efforts to conserve essential flycatcher habitat. As 
discussed above, the permit holders of the City and County Subarea 
Plans are aware of the value of these lands to flycatcher conservation, 
and conservation measures are already in place to protect essential 
occurrences of the flycatcher and its habitat.
    Furthermore, essential habitat within the boundaries of the County 
of San

[[Page 396]]

Diego Subarea Plan was included in the proposed designation published 
in the Federal Register on August 15, 2011 (76 FR 50542). This 
publication was announced in a press release and information was posted 
on the Service's Web site, which ensured that the proposal reached a 
wide audience. Therefore, the educational benefits of critical habitat 
designation (such as providing information to the County of San Diego 
and other stakeholders on areas important to the long-term conservation 
of this species) have largely been realized through development and 
ongoing implementation of the HCP, by proposing these areas as critical 
habitat, and through the Service's public outreach efforts.
    Critical habitat designation can also result in ancillary 
conservation benefits to the flycatcher by triggering additional review 
and conservation through other Federal and State laws. Critical habitat 
designation can also result in ancillary conservation benefits to the 
flycatcher by triggering additional review and conservation through 
other Federal and State laws such as the Clean Water Act and CEQA. 
These laws analyze the potential for projects to significantly affect 
the environment. However, essential habitat within San Diego County has 
been identified in the Subarea Plan and is either already protected or 
targeted for protection under the plans and thus we conclude the 
potential regulatory benefits resulting from designation of critical 
habitat would be negligible. Thus review of development proposals 
affecting essential habitat under CEQA by the San Diego County already 
takes into account the importance of this habitat to the species and 
the protections required for the species and its habitat under the 
Subarea Plan. As discussed above, we conclude the potential regulatory 
benefits resulting from designation of critical habitat would be 
negligible because the outcome of a future section 7 consultation would 
not result in greater conservation for flycatcher essential habitat 
than currently is provided under the County of San Diego Subarea Plan.
    Based on the above discussion, we believe section 7 consultations 
for critical habitat designation conducted under the standards required 
by the Ninth Circuit Court in the Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service decision would provide little conservation 
benefit and would be largely redundant with those benefits attributable 
to listing as well as those already provided by the County of San Diego 
Subarea Plan. Therefore, we determine the regulatory benefits of 
designating those stream segments as flycatcher critical habitat, such 
as protection afforded through the section 7(a)(2) consultation 
process, are minimal. We also conclude that the educational and 
ancillary benefits of designating essential habitat covered by the 
County of San Diego Subarea plan would be minor because the location of 
essential habitat for this species within San Diego County and the 
importance of conserving such habitat is well known through development 
and implementation of the subarea plans and the independent regulatory 
protection already provided under CEQA and the County of San Diego 
Subarea Plan.
Benefits of Exclusion--San Diego County MSCP
    The benefits of excluding from designated flycatcher critical 
habitat the collection of streams totaling approximately 24.5 km (15.2 
mi) within the boundaries of the County of San Diego Subarea Plan are 
significant and include: (1) Conservation management objectives for the 
flycatcher and its habitat identified in the MSCP, summarized above; 
(2) continued and strengthened effective working relationships with all 
San Diego MSCP permittees and stakeholders to promote the conservation 
of the flycatcher and its habitat; (3) continued meaningful 
collaboration and cooperation in working toward recovery of this 
species, including conservation benefits that might not otherwise 
occur; (4) encouragement of other entities within the range of the 
flycatcher to complete HCPs or subarea plans under the MSCP; and (5) 
encouragement of additional HCP and other conservation plan development 
in the future on other private lands that include the flycatcher and 
other federally listed species.
    We developed close partnerships with the County of San Diego and 
several other stakeholders through the development of the San Diego 
MSCP, which incorporates appropriate protections and management 
(described above) for the flycatcher, its habitat, and the physical or 
biological features essential to the conservation of this species. 
Those protections are consistent with statutory mandates under section 
7 of the Act to avoid destruction or adverse modification of critical 
habitat. Furthermore, this plan goes beyond that requirement by 
including active management and protection of essential habitat areas. 
Additionally, the San Diego County Water Authority (SDCWA) has also 
completed an HCP, which includes areas within the boundaries of the 
County of San Diego Subarea Plan. The SDCWA HCP is a multi-species 
conservation program designed to minimize and mitigate the effects of 
expected habitat loss and associated incidental take of 63 listed and 
nonlisted ``covered species,'' including the flycatcher (SDCWA 2011, p. 
ES.1). By excluding the approximately 24.5 km (15.2 mi) of stream 
segments within the boundaries of the County of San Diego Subarea Plan 
from critical habitat designation, we are eliminating a redundant layer 
of regulatory review for projects covered by the County of San Diego 
Subarea Plan and encouraging new voluntary partnerships with other 
landowners and jurisdictions to protect the flycatcher and other listed 
species. As discussed above, the prospect of potentially avoiding a 
future designation of critical habitat provides a meaningful incentive 
to plan proponents to extend voluntary protections to endangered and 
threatened species and their habitats under a conservation plan. 
Achieving comprehensive landscape-level protection for listed species, 
such as the flycatcher through their inclusion in regional conservation 
plans, provides a key conservation benefit to the species. Our ongoing 
partnerships with the County of San Diego, SDCWA, other MSCP 
participants, and the landscape-level multiple species conservation 
planning efforts they promote, are essential to achieve long-term 
conservation of the flycatcher.
    As noted earlier, some MSCP permittees have expressed the view that 
critical habitat designation of lands covered by the MSCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plans, and would 
discourage development of additional HCPs and other conservation plans 
in the future. Permittees of the County of San Diego Subarea Plan have 
repeatedly stated that exclusion of lands covered by the plan would 
prove beneficial to our partnership (SDCWA 2011a, pp. 1-5). The Service 
has previously found that: (1) Implementation of the avoidance, 
minimization, and mitigation measures identified in the County of San 
Diego Subarea Plan will reduce impacts to the flycatcher; (2) the 
conservation objectives for the flycatcher, summarized above, will be 
met; (3) the proposed action is not likely to jeopardize the continued 
existence of the species; and (4) the County of San Diego Subarea Plan 
incorporates special management considerations necessary

[[Page 397]]

to manage the ``covered species,'' including the flycatcher, in a 
manner that will provide for the conservation of the species within the 
plan area (County of San Diego 1998, p. 23; Service 1998, pp. 36, 60). 
Where an existing HCP provides protection for a species and its 
essential habitat within the plan area, the benefits of preserving 
existing partnerships by excluding the covered lands from critical 
habitat are most significant. Under these circumstances, excluding 
lands owned by or under the jurisdiction of the permittees of an HCP 
promotes positive working relationships and eliminates impacts to 
existing and future partnerships while encouraging development of 
additional HCPs for other species.
    Large-scale HCPs, including the County of San Diego Subarea Plan, 
take many years to develop, and foster a strategic ecosystem-based 
approach to habitat conservation planning by addressing conservation 
issues through a coordinated approach. If local jurisdictions were to 
require landowners to individually obtain ITPs under section 10 of the 
Act prior to the issuance of a building permit, the local jurisdiction 
would incur no costs associated with the landowner's need for an ITP. 
However, this approach would result in uncoordinated, project-by-
project conservation that would be less likely to achieve listed 
species recovery as conservation measures would be determined on a 
project-by-project basis instead of on a comprehensive, landscape-level 
scale. We, therefore, want to continue to foster partnerships with 
local jurisdictions to encourage the development of regional HCPs that 
afford proactive landscape-level conservation for multiple species. We 
believe the exclusion from critical habitat designation of covered 
lands subject to protection and management under such plans will 
promote these partnerships and result in greater protection for listed 
species, including the flycatcher, than would be achieved through 
section 7 consultation.
Benefits of Exclusion Outweigh the Benefits of Inclusion--San Diego 
County MSCP
    We reviewed and evaluated the exclusion of approximately 24.5 km 
(15.2 mi) of stream segments within the boundaries of the County of San 
Diego Subarea Plan from our revised designation of critical habitat, 
and we determined the benefits of excluding these lands outweigh the 
benefits of including them. The benefits of including these lands in 
the designation are small because the regulatory, educational, and 
ancillary benefits that would result from critical habitat designation 
are largely redundant with the regulatory, educational, and ancillary 
benefits already afforded through the County of San Diego Subarea Plan 
and under Federal and State law. In contrast to the minor benefits of 
inclusion, the benefits of excluding lands covered by the County of San 
Diego Subarea Plan from critical habitat designation are significant. 
Exclusion of these lands will help preserve the partnerships we 
developed with local jurisdictions and project proponents through the 
development and ongoing implementation of the County of San Diego 
Subarea Plan, and aid in fostering future partnerships for the benefit 
of listed species. Designation of lands covered by the County of San 
Diego Subarea Plan may discourage other partners from seeking, 
amending, or completing NCCP-HCP plans that cover the flycatcher and 
other listed species. Designation of critical habitat does not require 
that management or recovery actions take place on the lands included in 
the designation. The County of San Diego Subarea Plan, however, will 
provide significant conservation and management of the flycatcher and 
its habitat, and help achieve recovery of this species through habitat 
enhancement and management, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--County of San 
Diego Subarea Plan under the San Diego MSCP section above, we determine 
the significant benefits of exclusion outweigh the minor benefits of 
critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--San Diego 
County MSCP
    We determine that the exclusion of 24.5 km (15.2 mi) of stream 
segments within the boundaries of the County of San Diego Subarea Plan 
from the designation of critical habitat for the flycatcher will not 
result in extinction of the species. The Service continues to review 
all Federal project proposal impacting riparian habitat occupied by the 
flycatcher through the section 7 process, and will ensure that all 
development carried out does not jeopardize the continued existence of 
the flycatcher. Thus, the section 7 process and protection provided by 
the County of San Diego Subarea Plan provide assurances that this 
species will not go extinct as a result of excluding these lands from 
the critical habitat designation. Therefore, based on the above 
discussion and to the extent consistent with the requirements of 
section 4(b)(2) of the Act, the Secretary is exercising his discretion 
to exclude from critical habitat, 9.2 km (5.7 mi) of the San Dieguito 
River, 9.6 km (6.0 mi) of the San Diego River, 2.1 km (1.3 mi) of non-
Federal lands on the Sweetwater River, 2.4 km (1.5 mi) of upper Santa 
Ysabel Creek, and 1.1 km (0.7 mi) of lower Santa Ysabel Creek within 
the planning area boundary for County of San Diego Subarea lands.
Western Riverside County Multiple Species HCP
    For the analysis of the exclusion of streams in the San Diego 
Management Unit under the Western Riverside County Multiple Species 
HCP, see the related discussion under the Summary of Exclusions, Santa 
Ana Management Unit.
Orange County Southern Subregional HCP
    The Orange County Southern Subregion HCP is a comprehensive, large-
scale plan encompassing approximately 34,811 ha (86,021 ac) of land in 
southern Orange County. This HCP is a subregional plan under the 
State's NCCP and was developed in cooperation with the CDFG. The Orange 
County Southern Subregion HCP was developed in support of applications 
for incidental take permits by Orange County, Rancho Mission Viejo 
(RMV), and the Santa Margarita Water District in connection with 
proposed residential development and related actions in southern Orange 
County. The Orange County Southern Subregion HCP is a multi-species 
conservation program that minimizes and mitigates the effects of 
expected habitat loss and associated incidental take of 32 covered 
species, including the flycatcher. Conservation of the flycatcher is 
addressed in the Orange County Southern Subregion HCP. A section 
10(a)(1)(B) permit for the Orange County Southern Subregion HCP on 
January 10, 2007, was issued for a period of 75 years (Service 2007, p. 
1).
    When fully implemented, the Orange County Southern Subregion HCP 
will conserve approximately 12,313 ha (30,426 ac) of Habitat Reserve 
and 1,803 ha (4,456 ac) of supplemental open space areas, which will 
consist primarily of land owned by Rancho Mission Viejo and three pre-
existing County parks (Service 2007, pp. 10, 19). The Orange County 
Southern Subregion HCP provides for a large, biologically

[[Page 398]]

diverse and permanent habitat reserve that will protect: (1) Large 
blocks of natural vegetation communities that provide habitat for the 
covered species; (2) ``important'' and ``major'' populations of the 
covered species in key locations; (3) wildlife corridors and habitat 
linkages that connect the large habitat blocks and covered species 
populations to each other, the Cleveland National Forest, and the 
adjacent Orange County Central-Coastal NCCP-HCP; and (4) the underlying 
hydrogeomorphic processes that support the major vegetation communities 
providing habitat for the covered species, including the flycatcher 
(Service 2007, p. 10).
    Specific conservation objectives in the Orange County Southern 
Subregion HCP for the flycatcher include preserving and managing 249 ha 
(615 ac) of nesting and foraging habitat within the Habitat Reserve 
(Service 2007, p. 120). Conserved land in the Habitat Reserve will be 
maintained and managed in perpetuity for the benefit of the flycatcher 
and other species covered by the plan. To offset any loss of riparian 
habitat for the flycatcher at the Prima Deshecha Landfill and within 
the Habitat Reserve, an additional 4 ha (10 ac) of willow riparian 
habitat within the Landfill will be created and managed, in perpetuity, 
for species covered by the Orange County Southern Subregion HCP, 
including the flycatcher. Therefore, 100 percent of flycatcher 
locations in the Lower Ca[ntilde]ada Gobernadora ``important'' 
population in a ``key'' location will be included in the Habitat 
Reserve (Service 2007, p. 123). Management actions for the flycatcher 
within the Habitat Reserve will include the control of nonnative 
species through implementation of a control plan, including cowbird 
trapping and management of nonnative plant species that occur in 
riparian habitats (Service 2007, p. 121). Any clearing of riparian 
habitat will occur outside of breeding season; however, if clearing 
must take place during breeding season, focused surveys will be 
conducted and measures implemented to avoid impacts to flycatcher nests 
and young (Service 2007, p. 121). The Orange County Southern Subregion 
HCP requires periodic reviews to assess the effects of grazing for fuel 
modification purposes and make recommendations to maximize benefit to 
covered species, including the flycatcher (Service 2007, p. 121). 
Monitoring for the flycatcher will also be conducted on county 
parklands within the Habitat Reserve (Service 2007, p. 121).
    In our 2007 biological opinion, we evaluated the effects of the 
Orange County Southern Subregion HCP on the flycatcher and its habitat 
found within the plan boundaries, and determined the plan will not 
jeopardize the continued existence of the flycatcher (Service 2007, p. 
123). In addition, we acknowledged in section 10.3.4 of the IA for the 
Orange County Southern Subregion HCP that the plan provides a 
comprehensive habitat-based approach to the protection of covered 
species and their habitats by focusing on the lands and aquatic 
resource areas essential for the long-term conservation of the covered 
species (including the flycatcher), and by providing for appropriate 
management for those lands (Service 2007, p. 64).
    In summary, the Orange County Southern Subregion HCP provides a 
comprehensive, habitat-based approach to the protection of covered 
species and their habitats, including the flycatcher, by focusing on 
lands and aquatic resources essential for the long-term conservation of 
the covered species and appropriate management of those lands (Orange 
County Southern Subregion HCP 2003, p. 64).
Benefits of Inclusion--Orange County Southern Subregion HCP
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The stream we evaluated is known to be occupied by flycatchers and 
has undergone section 7 consultation under the jeopardy standard 
related to the Orange County Southern Subregion HCP. The proposed 
stream segment of Ca[ntilde]ada Gobernadora Creek is entirely located 
within the HCP boundary. Ca[ntilde]ada Gobernadora Creek was not within 
the geographical area known to be occupied at the time of listing. 
Following listing, flycatcher territories were detected within this 
stream segment. As a result of those territory detections and the 
criteria we established, based upon flycatcher dispersal, migration, 
and movement behaviors, this segment is now considered occupied.
    Therefore, regardless of critical habitat designation, this segment 
will be subject to a section 7 consultation under the jeopardy standard 
as well as the take prohibitions in section 9 of the Act. Thus, it is 
difficult to differentiate meaningfully between measures implemented 
solely to minimize impacts to critical habitat from those implemented 
to minimize impacts to the flycatcher. Therefore, in the case of the 
flycatcher, we believe any additional regulatory benefits of critical 
habitat designation would be minimal because the regulatory benefits 
from designation are essentially indistinguishable from the benefits 
already afforded through sections 7 and 9 of the Act.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the flycatcher and its 
habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of the flycatcher, 
however, there have already been multiple occasions when the public has 
been educated about the species. The planning process for the Orange 
County Southern Subregion HCP began in 1992, when the County of Orange 
formally enrolled its unincorporated area in the NCCP program, and then 
signed a Planning Agreement with CDFG and the Service in 1993. Planning 
efforts were delayed for a time, but scoping and planning meetings 
continued. The Orange County Southern Subregion HCP was finalized in 
2006. As discussed above, the permit holders of the Orange County 
Southern Subregion HCP are aware of the value of these lands to the 
conservation the flycatcher, and conservation measures are already in 
place to protect essential occurrences of the flycatcher and its 
habitat.
    Furthermore, essential habitat covered by the Orange County 
Southern Subregion HCP was included in the proposed designation 
published in the Federal Register on August 15, 2011 (76 FR 50542). 
This publication was announced in a press release and information was 
posted on the Service's Web site, which ensured that the proposal 
reached a wide audience. Therefore, the educational benefits of 
critical habitat designation (such as providing information to the 
County of Orange and other stakeholders on areas important to the long-
term conservation of this species) have largely been realized through 
development and ongoing implementation of the Orange County Southern 
Subregion HCP, by proposing these areas as critical habitat,

[[Page 399]]

and through the Service's public outreach efforts.
    Critical habitat designation can also result in ancillary 
conservation benefits to the flycatcher by triggering additional review 
and conservation through other Federal and State laws such as the Clean 
Water Act and CEQA. These laws analyze the potential for projects to 
significantly affect the environment. However, essential habitat within 
the County of Orange has been identified in the Orange County Southern 
Subregion HCP and is either already protected or targeted for 
protection under the plans, and thus we conclude the potential 
regulatory benefits resulting from designation of critical habitat 
would be negligible. Thus review of development proposals affecting 
essential habitat under CEQA by the County of Orange already takes into 
account the importance of this habitat to the species and the 
protections required for the species and its habitat under the 
Subregion plan. As discussed above, we conclude the potential 
regulatory benefits resulting from designation of critical habitat 
would be negligible because the outcome of a future section 7 
consultation would not result in greater conservation for flycatcher 
essential habitat than currently is provided under the Orange County 
Southern Subregion HCP.
    Based on the above discussion, we believe section 7 consultations 
for critical habitat designation conducted under the standards required 
by the Ninth Circuit Court in the Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service decision would provide little conservation 
benefit and would be largely redundant with those benefits attributable 
to listing as well as those already provided by the Orange County 
Southern Subregion HCP. Therefore, we determine the regulatory benefits 
of designating the stream segment of Ca[ntilde]ada Gobernadora Creek as 
flycatcher critical habitat, such as protection afforded through the 
section 7(a)(2) consultation process, are minimal. We also conclude 
that the educational and ancillary benefits of designating essential 
habitat covered by the Orange County Southern Subregion HCP would be 
minor because the location of essential habitat for this species within 
Orange County and the importance of conserving such habitat is well 
known through development and implementation of the Subregional plan 
and the independent regulatory protection already provided under CEQA 
and the Orange County Southern Subregion HCP.
Benefits of Exclusion--Orange County Southern Subregion HCP
    The benefits of excluding from designated critical habitat the 
approximately 4.7 km (2.9 mi) of Ca[ntilde]ada Gobernadora Creek within 
the boundaries of the Orange County Southern Subregion HCP are 
significant and include: (1) Conservation management objectives for the 
flycatcher and its habitat identified in the HCP, described above; (2) 
continued and strengthened effective working relationships with all 
Orange County Southern Subregion HCP permittees and stakeholders to 
promote the conservation of the flycatcher and its habitat; (3) 
continued meaningful collaboration and cooperation in working toward 
recovery of this species, including conservation benefits that might 
not otherwise occur; (4) encouragement of other entities within the 
range of the flycatcher to complete HCPs; and (5) encouragement of 
additional HCP and other conservation plan development in the future on 
other private lands that include the flycatcher and other federally 
listed species.
    We developed close partnerships with the County of Orange and 
several other stakeholders through the development of the Orange County 
Southern Subregion HCP, which incorporates appropriate protections and 
management (described above) for the flycatcher, its habitat, and the 
physical or biological features essential to the conservation of this 
species. Those protections are consistent with statutory mandates under 
section 7 of the Act to avoid destruction or adverse modification of 
critical habitat. Furthermore, this plan goes beyond that requirement 
by including active management and protection of essential habitat 
areas. By excluding the approximately 4.7 km (2.9 mi) of Ca[ntilde]ada 
Gobernadora Creek within the boundaries of the Orange County Southern 
Subregion HCP from critical habitat designation, we are eliminating a 
redundant layer of regulatory review for projects covered by the Orange 
County Southern Subregion HCP and encouraging new voluntary 
partnerships with other landowners and jurisdictions to protect the 
flycatcher and other listed species. As discussed above, the prospect 
of potentially avoiding a future designation of critical habitat 
provides a meaningful incentive to plan proponents to extend voluntary 
protections to endangered and threatened species and their habitats 
under a conservation plan. Achieving comprehensive landscape-level 
protection for listed species, such as the flycatcher through their 
inclusion in regional conservation plans, provides a key conservation 
benefit to the species. Our ongoing partnerships with the County of 
Orange and the subregional Orange County Southern Subregion HCP 
participants, and the landscape-level multiple species conservation 
planning efforts they promote, are essential to achieve long-term 
conservation of the flycatcher.
    As noted earlier, some Orange County Southern Subregion HCP 
permittees have expressed the view that critical habitat designation of 
lands covered by an HCP devalues the conservation efforts of plan 
proponents and the partnerships fostered through the development and 
implementation of the plans, and would discourage development of 
additional HCPs and other conservation plans in the future. Permittees 
of the Orange County Southern Subregion HCP have repeatedly stated that 
exclusion of lands covered by the plan would prove beneficial to our 
partnership (RMV 2011, pp. 1-7). The Service has previously found that: 
(1) Implementation of the avoidance, minimization, and mitigation 
measures identified in the Orange County Southern Subregion HCP will 
reduce impacts to the flycatcher; (2) the conservation objectives for 
the flycatcher, as summarized above, will be met; (3) the proposed 
action is not likely to jeopardize the continued existence of the 
species; (4) the Orange County Southern Subregion HCP provides a 
comprehensive, habitat-based approach to the protection of covered 
species and their habitats, including the flycatcher, by focusing on 
lands and aquatic resources essential for the long-term conservation of 
the covered species and appropriate management of those lands (Southern 
Orange County Subregion HCP 2003, p. 64; Service 2007, pp. 123-124).
    Where an existing HCP provides protection for a species and its 
essential habitat within the plan area, the benefits of preserving 
existing partnerships by excluding the covered lands from critical 
habitat are most significant. Under these circumstances, excluding 
lands owned by or under the jurisdiction of the permittees of an HCP 
promotes positive working relationships and eliminates impacts to 
existing and future partnerships while encouraging development of 
additional HCPs for other species.
    Large-scale HCPs, such as the Orange County Southern Subregion HCP, 
take many years to develop, and foster an ecosystem-based approach to 
habitat conservation planning by addressing

[[Page 400]]

conservation issues through a coordinated approach. If local 
jurisdictions were to require landowners to individually obtain ITPs 
under section 10 of the Act prior to the issuance of a building permit, 
the local jurisdiction would incur no costs associated with the 
landowner's need for an ITP. However, this approach would result in 
uncoordinated, patchy conservation that would be less likely to achieve 
listed species recovery, and almost certainly would result in less 
protection for listed plant species, which do not require an ITP. We, 
therefore, want to continue to foster partnerships with local 
jurisdictions to encourage the development of regional HCPs that afford 
proactive landscape-level conservation for multiple species, including 
voluntary protections for covered plant species. We believe the 
exclusion from critical habitat designation of covered lands subject to 
protection and management under such plans will promote these 
partnerships and result in greater protection for listed species, 
including the flycatcher, than would be achieved through section 7 
consultation.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Orange County 
Southern Subregion HCP
    We reviewed and evaluated the benefits of inclusion and exclusion 
of approximately 4.7 km (2.9 mi) of Ca[ntilde]ada Gobernadora Creek 
from critical habitat designation for the flycatcher for lands owned by 
or under the jurisdiction of Orange County Southern Subregion HCP 
permittees. The benefits of including these lands in the designation 
are small because the regulatory, educational, and ancillary benefits 
that would result from the critical habitat are largely redundant with 
the regulatory, educational, and ancillary benefits already afforded 
through the Orange County Southern Subregion HCP and under Federal and 
State laws. In contrast to the minor benefits of inclusion, the 
benefits of excluding lands covered by the Orange County Southern 
Subregion HCP from critical habitat designation are significant. 
Exclusion of these lands will help preserve the partnerships we 
developed with local jurisdictions and project proponents through the 
development and ongoing implementation of the Orange County Southern 
Subregion HCP. Designation of critical habitat does not require that 
management or recovery actions take place on the lands included in the 
designation. The Orange County Southern Subregion HCP, however, will 
provide significant conservation and management of the flycatcher and 
its habitat, and help achieve recovery of this species through habitat 
enhancement and management, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Orange County 
Southern Subregion HCP section above, we determine the significant 
benefits of exclusion outweigh the minor benefits of critical habitat 
designation.
Exclusion Will Not Result in Extinction of the Species--Orange County 
Southern Subregion HCP
    We determine that the exclusion of 4.7 km (2.9 mi) of Ca[ntilde]ada 
Gobernadora Creek within the boundaries of the Orange County Southern 
Subregion HCP from the designation of critical habitat for the 
flycatcher will not result in extinction of the species. The Service 
continues to review all Federal project proposals review all Federal 
project proposals impacting riparian habitat occupied by the flycatcher 
through the section 7 process, and will ensure that all development 
carried out does not jeopardize the continued existence of the 
flycatcher. Thus, the section 7 process and protection provided by the 
Orange County Southern Subregion HCP provide assurances that this 
species will not go extinct as a result of excluding these lands from 
the critical habitat designation. Therefore, based on the above 
discussion, the Secretary is exercising his discretion to exclude 4.7 
km (2.9 mi) of stream segment within the boundaries of Orange County 
Southern Subregion HCP from this final critical habitat designation.
San Diego Multiple Habitat Conservation Program (MHCP)--Carlsbad 
Habitat Management Plan (HMP)
    The San Diego MHCP is a comprehensive, large-scale, and 
multijurisdictional planning program encompassing approximately 45,279 
ha (111,908 ac) of land within seven jurisdictions in northwestern San 
Diego County, California, including the cities of Carlsbad, Encinitas, 
Escondido, Oceanside, San Marcos, Solana Beach, and Vista. The San 
Diego MHCP is a subregional plan under the State of California's NCCP 
and was developed in cooperation with CDFG. The San Diego MHCP is a 
multi-species conservation program that minimizes and mitigates the 
effects of expected habitat loss and associated incidental take of 77 
federally listed and sensitive species, including the flycatcher. 
Conservation of the flycatcher is addressed in the subregional plan and 
in the Carlsbad HMP. A section 10(a)(1)(B) permit for Carlsbad HMP was 
issued on November 9, 2004, for a period of 50 years (Service 2004a, p. 
19).
    When fully implemented, the Carlsbad HMP will conserve 
approximately 9,943 ha (24,570 ac) of land within the City of Carlsbad 
and proposes to establish approximately 2,746 ha (6,786 ac) of habitat 
preserve to mitigate the impacts of public and private development 
(Service 2004a, p. 19). The majority of the preserve (2,399 ha, 5,928 
ac) consists of ``hard-lined'' areas designated for 100 percent 
conservation (Service 2004a, p. 19). Up to 223 ha (550 ac) would be 
conserved on lands designated as standards areas, which are areas that 
have established assured levels of conservation through applying 
biological criteria (rather than delineating the project footprint by a 
``hard-line''). Additionally, approximately 125 ha (308 ac) would be 
conserved outside of the City of Carlsbad's Subarea to help offset 
impacts that would occur within the City's Subarea and outside of the 
City, but within the San Diego MHCP planning area (Service 2004a, p. 
19).
    Specific conservation objectives in the Carlsbad HMP for the 
flycatcher include conserving 200 ha (494 ac) of riparian habitat and 
10 ha (25 ac) of oak woodland within the preserve (Service 2004a, p. 
174). Mandatory surveys will be conducted for proposed projects in or 
adjacent to suitable habitat outside of preserve areas (Service 2004a, 
p. 175). Flycatcher habitat will be managed to restrict activities that 
cause degradation, including livestock grazing, human disturbance, 
clearing or alteration of riparian vegetation, brown-headed cowbird 
parasitism, and insufficient water levels leading to loss of riparian 
habitat and surface water (Service 2004a, pp. 175-176). Area-specific 
management directives shall include measures to provide appropriate 
flycatcher habitat, cowbird control, and specific measures to protect 
against detrimental edge effects, and removal of nonnative plant 
species (Service 2004a, p. 176). Human access to flycatcher-occupied 
breeding habitat is restricted during the breeding season (May 1--
September 15) except for qualified researchers or land managers 
performing essential preserve management, monitoring, or research 
functions (Service 2004a, p. 176). Additionally, any projects that 
require

[[Page 401]]

placing equipment or personnel in or adjacent to sensitive habitats 
would also include restrictions on timing to ensure that any impacts to 
breeding habitat would occur prior to the initiation of the breeding 
season (Service 2004a, p. 176).
    In our 2004 biological opinion, we evaluated the effects of the 
Carlsbad HMP on the flycatcher and its habitat that is found within the 
plan boundaries, and determined the HMP will not adversely affect 
proposed critical habitat for the flycatcher (Service 2004a, p. 52). We 
also determined that the plan will not jeopardize the continued 
existence of the flycatcher (Service 2004a, p. 59). Furthermore, we 
acknowledged in section 1.8 of the IA for the Carlsbad HMP that the 
plan provides a comprehensive, long-term approach for the conservation 
and management of species, including the flycatcher, and their habitat 
(Service 2004a, p. 2). The 1995 final listing rule for the flycatcher 
identified the most significant threats to the species are the loss, 
modification, and fragmentation of its habitat, and brood parasitism by 
the brown-headed cowbird (60 FR 10693; February 27, 1995). The Carlsbad 
HMP helps to address these threats through a regional planning effort, 
and outlines species-specific objectives and criteria for the 
conservation of flycatcher.
    In summary, the Carlsbad HMP incorporates special management 
actions necessary to manage ``covered species'' and their habitats, 
including the flycatcher, in a manner that will provide for the 
conservation of the species (City of Carlsbad 2004, p. 17).
Benefits of Inclusion--Carlsbad HMP
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The stream we evaluated is known to be occupied by flycatchers and 
has undergone section 7 consultation under the jeopardy standard 
related to the Carlsbad HMP. The proposed Agua Hedionda Creek stream 
segment occurs within, but extends beyond the HCP boundary. Agua 
Hedionda Creek was not within the geographical area known to be 
occupied at the time of listing. Following listing, flycatcher 
territories were detected within this stream segment. As a result of 
those territory detections and the criteria we established, based upon 
flycatcher dispersal, migration, and movement behaviors, this segment 
is now considered occupied.
    Therefore, regardless of critical habitat designation, the segment 
will be subject to a section 7 consultation under the jeopardy standard 
as well as the take prohibitions in section 9 of the Act. Thus, it is 
difficult to differentiate meaningfully between measures implemented 
solely to minimize impacts to critical habitat from those implemented 
to minimize impacts to the flycatcher. Therefore, in the case of the 
flycatcher, we believe any additional regulatory benefits of critical 
habitat designation would be minimal because the regulatory benefits 
from designation are essentially indistinguishable from the benefits 
already afforded through sections 7 and 9 of the Act.
    Another possible benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts on areas of high conservation value 
for certain species. Any information about the flycatcher and its 
habitat that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. In the case of the flycatcher, 
however, there have already been multiple occasions when the public has 
been educated about the species. The framework of the regional San 
Diego MHCP was developed over a 6-year period and both the San Diego 
MHCP and the Carlsbad HMP have been in place for almost a decade. 
Implementation of the subarea plans is formally reviewed yearly through 
publicly available annual reports and a public meeting, again providing 
extensive opportunity to educate the public and landowners about the 
location of, and efforts to conserve, essential flycatcher habitat. As 
discussed above, the permit holders of the Carlsbad HMP are aware of 
the value of these lands to the conservation the flycatcher, and 
conservation measures are already in place to protect essential 
occurrences of the flycatcher and its habitat.
    Furthermore, essential habitat covered by the Carlsbad HMP was 
included in the proposed designation published in the Federal Register 
on August 15, 2011 (76 FR 50542). This publication was announced in a 
press release and information was posted on the Service's Web site, 
which ensured that the proposal reached a wide audience. Therefore, the 
educational benefits of critical habitat designation (such as providing 
information to the City of Carlsbad and other stakeholders on areas 
important to the long-term conservation of this species) have largely 
been realized through development and ongoing implementation of the 
Carlsbad HMP, by proposing these areas as critical habitat, and through 
the Service's public outreach efforts.
    Critical habitat designation can also result in ancillary 
conservation benefits to the flycatcher by triggering additional review 
and conservation through other Federal and State laws such as the Clean 
Water Act and CEQA. These laws analyze the potential for projects to 
significantly affect the environment. However, essential habitat within 
the City of Carlsbad has been identified in the Carlsbad HMP and is 
either already protected or targeted for protection under the plans and 
thus we conclude the potential regulatory benefits resulting from 
designation of critical habitat would be negligible. Thus review of 
development proposals affecting essential habitat under CEQA by the 
City of Carlsbad already takes into account the importance of this 
habitat to the species and the protections required for the species and 
its habitat under the Subregion plan. However, as discussed above, we 
conclude the potential regulatory benefits resulting from designation 
of critical habitat would be negligible because the outcome of a future 
section 7 consultation would not result in greater conservation for 
flycatcher essential habitat than currently is provided under the 
Carlsbad HMP.
    Based on the above discussion, we believe section 7 consultations 
for critical habitat designation conducted under the standards required 
by the Ninth Circuit Court in the Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service decision would provide little conservation 
benefit and would be largely redundant with those benefits attributable 
to listing as well as those already provided by the Carlsbad HMP. 
Therefore, we determine the regulatory benefits of designating a 
segment of Agua Hedionda Creek as flycatcher critical habitat, such as 
protection afforded through the section 7(a)(2) consultation process, 
are minimal. We also conclude that the educational and ancillary 
benefits of designating essential habitat covered by the Carlsbad HMP 
would be minor because the location of essential habitat for this 
species within San Diego County and the importance of conserving such 
habitat is well known through

[[Page 402]]

development and implementation of the Subregional Plan and the 
independent regulatory protection already provided under CEQA and the 
Carlsbad HMP.
Benefits of Exclusion--Carlsbad HMP
    The benefits of excluding from designated critical habitat the 
approximately 5.3 km (3.3 mi) of Agua Hedionda Creek within the 
boundaries of the Carlsbad HMP are significant and include: (1) 
Conservation management objectives for the flycatcher and its habitat 
identified in the HCP, described above; (2) continued and strengthened 
effective working relationships with all HCP permittees and 
stakeholders to promote the conservation of the flycatcher and its 
habitat; (3) continued meaningful collaboration and cooperation in 
working toward recovery of this species, including conservation 
benefits that might not otherwise occur; (4) encouragement of other 
entities within the range of the flycatcher to complete HCPs; and (5) 
encouragement of additional HCP and other conservation plan development 
in the future on other private lands that include the flycatcher and 
other federally listed species.
    We developed close partnerships with the city of Carlsbad and 
several other stakeholders through the development of the HMP, which 
incorporates appropriate protections and management (described above) 
for the flycatcher its habitat, and the physical or biological features 
essential to the conservation of this species. Those protections are 
consistent with statutory mandates under section 7 of the Act to avoid 
destruction or adverse modification of critical habitat. Furthermore, 
this plan goes beyond that requirement by including active management 
and protection of essential habitat areas. By excluding the 
approximately 5.3 km (3.3 mi) of stream within the boundaries of the 
Carlsbad HMP from critical habitat designation, we are eliminating a 
redundant layer of regulatory review for projects covered by the 
Carlsbad HMP and encouraging new voluntary partnerships with other 
landowners and jurisdictions to protect the flycatcher and other listed 
species. As discussed above, the prospect of potentially avoiding a 
future designation of critical habitat provides a meaningful incentive 
to plan proponents to extend voluntary protections to endangered and 
threatened species and their habitats under a conservation plan. 
Achieving comprehensive landscape-level protection for listed species, 
such as the flycatcher through their inclusion in regional conservation 
plans, provides a key conservation benefit to the species. Our ongoing 
partnerships with the City of Carlsbad and the landscape-level multiple 
species conservation planning efforts they promote, are essential to 
achieve long-term conservation of the flycatcher.
    As noted earlier, some HCP permittees have expressed the view that 
critical habitat designation of lands covered by an HCP devalues the 
conservation efforts of plan proponents and the partnerships fostered 
through the development and implementation of the plans, and would 
discourage development of additional HCPs and other conservation plans 
in the future. The Service has previously found that: (1) 
Implementation of the avoidance, minimization, and mitigation measures 
identified in the Carlsbad HMP will reduce impacts to the flycatcher; 
(2) the conservation objectives for the flycatcher, as stated above, 
will be met; (3) the proposed action is not likely to jeopardize the 
continued existence of the species; and (4) the Carlsbad HMP 
incorporates special management actions necessary to manage ``covered 
species'' and their habitats, including the flycatcher, in a manner 
that will provide for the conservation of the species (City of Carlsbad 
2004, p. 17; Service 2004, pp. 69).
    Where an existing HCP provides protection for a species and its 
essential habitat within the plan area, the benefits of preserving 
existing partnerships by excluding the covered lands from critical 
habitat are most significant. Under these circumstances, excluding 
lands owned by or under the jurisdiction of the permittees of an HCP 
promotes positive working relationships and eliminates impacts to 
existing and future partnerships while encouraging development of 
additional HCPs for other species.
    Large-scale HCPs, such as the San Diego MHCP, and subregional plans 
in development under its framework, such as the Carlsbad HMP, take many 
years to develop and foster an ecosystem-based approach to habitat 
conservation planning by addressing conservation issues through a 
coordinated approach. If local jurisdictions were to require landowners 
to individually obtain ITPs under section 10 of the Act prior to the 
issuance of a building permit, the local jurisdiction would incur no 
costs associated with the landowner's need for an ITP. However, this 
approach would result in uncoordinated, patchy conservation that would 
be less likely to achieve listed species recovery, and almost certainly 
would result in less protection for listed plant species, which do not 
require an ITP. We, therefore, want to continue to foster partnerships 
with local jurisdictions to encourage the development of regional HCPs 
that afford proactive landscape-level conservation for multiple 
species, including voluntary protections for covered plant species. We 
believe the exclusion from critical habitat designation of covered 
lands subject to protection and management under such plans will 
promote these partnerships and result in greater protection for listed 
species, including the flycatcher, than would be achieved through 
section 7 consultation.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Carlsbad HMP
    We reviewed and evaluated the benefits of inclusion and exclusion 
of approximately 5.3 km (3.3 mi) of Agua Hedionda Creek from critical 
habitat designation for the flycatcher for lands owned by or under the 
jurisdiction of Carlsbad HMP permittees. The benefits of including 
these lands in the designation are small because the regulatory, 
educational, and ancillary benefits that would result from the critical 
habitat are largely redundant with the regulatory, educational, and 
ancillary benefits already afforded through the Carlsbad HMP and under 
Federal and State laws. In contrast to the minor benefits of inclusion, 
the benefits of excluding lands covered by the Carlsbad HMP from 
critical habitat designation are significant. Exclusion of these lands 
will help preserve the partnerships we developed with local 
jurisdictions and project proponents through the development and 
ongoing implementation of the Carlsbad HMP. Designation of critical 
habitat does not require that management or recovery actions take place 
on the lands included in the designation. The Carlsbad HMP, however, 
will provide significant conservation and management of the flycatcher 
and its habitat, and help achieve recovery of this species through 
habitat enhancement and management, functional connections to adjoining 
habitat, and species monitoring efforts. Additional HCPs or other 
species-habitat plans potentially fostered by this exclusion would also 
help to recover this and other federally listed species. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion--Carlsbad HMP 
under the MHCP section above, we determine the significant benefits of 
exclusion outweigh the minor benefits of critical habitat designation.

[[Page 403]]

Exclusion Will Not Result in Extinction of the Species--Carlsbad HMP
    We determine that the exclusion of 5.3 km (3.3 mi) of Agua Hedionda 
Creek within the boundaries of the Carlsbad HMP from the designation of 
critical habitat for the flycatcher will not result in extinction of 
the species. The Service continues to review all Federal project 
proposals impacting riparian habitat occupied by the flycatcher through 
the section 7 process, and will ensure that all development carried out 
does not jeopardize the continued existence of the flycatcher. Thus, 
the section 7 process and protection provided by the Carlsbad HMP 
provide assurances that this species will not go extinct as a result of 
excluding these lands from the critical habitat designation. Therefore, 
based on the above discussion, the Secretary is exercising his 
discretion to exclude 5.3 km (3.3 mi) of stream within the boundaries 
of Carlsbad HMP from this final critical habitat designation.
La Jolla Band of Luise[ntilde]o Indians Management Plan
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
Rincon Band of Luise[ntilde]o Mission Indians Management Plan
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
Pala Band of Luise[ntilde]o Mission Indians Partnership
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
The Barona and Viejas Groups of Capitan Grande Band of Diegueno Mission 
Indians Partnership
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
Owens Management Unit
Los Angeles Department of Water and Power Management Plan
    The LADWP manages about 126,262 ha (312,000 ac) of upland, aquatic, 
and riparian habitat in Inyo and Mono Counties, California. Their land 
management responsibilities include much of the riparian habitat along 
the Owens River and many of its tributaries. We proposed a 128.5-km 
(79.8-mi) continuous segment of flycatcher critical habitat along the 
Owens River (from Long Valley Dam to just north of Tinemaha Reservoir).
    In 2005, the LADWP, in partnership with the Service, developed a 
Conservation Strategy for the Southwestern Willow Flycatcher 
(Conservation Strategy) (LADWP 2005, pp. 1-12) and signed a Memorandum 
of Understanding (MOU) with the Service (LADWP and Service 2005, pp. 1-
3) to implement this Conservation Strategy in the Owens Management 
Unit. Consistent with the recommendations in the Recovery Plan (Service 
2002), the LADWP has and continues to implement measures in the 
Conservation Strategy with the goal of promoting the establishment of 
50 flycatcher territories in the Owens Management Unit. These measures, 
which would enhance and maintain riparian habitat for the flycatcher, 
include establishing riparian pastures and managing grazing utilization 
rates, prohibiting grazing in riparian pastures during the breeding 
season for the flycatcher and the growing season for riparian plants, 
monitoring the condition of riparian habitat annually, prohibiting 
overnight camping in riparian habitat in the Owens Management Unit, 
prohibiting cutting or gathering of firewood in riparian habitat along 
the Owens River, substantially reducing vehicle access along and to the 
Owens River and providing walkthrough access only to the river, 
supplying personnel and equipment for fire suppression activities with 
the goal of avoiding or minimizing impacts to riparian habitat during 
suppression activities, placing a high priority on fire suppression in 
riparian habitat, and implementing management actions in burned 
riparian areas to facilitate quick recovery of these habitats. Through 
the Conservation Strategy, the LADWP also prohibits dumping on its 
lands and cleans up unauthorized dumpsites as soon as they are 
identified, treats and monitors exotic weed infestations on LADWP 
lands, and has a policy to limit urban or agricultural development 
within riparian habitat along the Owens River. The LADWP has 
consistently implemented and continues to implement the Conservation 
Strategy to benefit the flycatcher.
    Subsequent to the Conservation Strategy and MOU with the Service, 
the LADWP has prepared and is implementing two additional land 
management plans, the Lower Owens River Plan (LORP) and the Owens 
Valley Land Management Plan (OVLMP). These management plans 
incorporated the measures in the Conservation Strategy. Although each 
planning area covers a portion of the Owens Valley, when combined they 
include the entire Owens Management Unit.
    The LORP is a large-scale habitat management project that includes 
the Owens River from south of Tinemaha Reservoir to the Owens River 
Delta. The goal of the LORP is to establish a healthy, functioning 
Lower Owens River riverine-riparian ecosystem to benefit biodiversity 
and threatened and endangered species, with the intent of achieving 
sufficient recovery to warrant delisting while providing for the 
continuation of sustainable uses including recreation, livestock 
grazing, agriculture, and other activities (LADWP and Inyo County 2011, 
Chap. 1 p.11, Chap. 2 p. 51). LORP implementation includes the release 
of water from the Los Angeles Aqueduct to the Lower Owens River to 
enhance riparian habitats along the Owens River, flooding approximately 
202 ha (500 ac) in the Blackrock Waterfowl Management Area, and 
maintenance of several lakes and ponds. The LORP requires annual 
monitoring of hydrologic flows of the Owens River, water quality, and 
certain vegetation types such as riparian scrub, riparian forest, 
tamarisk, etc. (LADWP and Inyo County 2011, Chap. 6 pp. 2-3). It also 
requires adaptive management; if monitoring indicates the LORP goals 
are not being achieved, management actions can change to attain the 
goals. The LORP also requires the preparation of annual reports to 
document the progress in achieving the project's goals. The 2010 annual 
report provided the following information on woody riparian habitat in 
the LORP area. The first seasonal habitat flow was released in 2010, 
and was timed to occur with seed release of woody riparian vegetation. 
There was an increase of 252 ha (626 ac) inundated above base flow 
conditions that provided areas for recruitment of woody riparian 
species. During the seasonal habitat flow, about 78.9 percent of 
floodplains and 29.9 percent of low terraces of the Lower Owens River 
were inundated (LADWP and Inyo County 2011, Chap. 3 p. 23). Recruitment 
of woody riparian vegetation is occurring slowly along the Lower Owens 
River (Chap. 4 p. 19).
    The development and implementation of the LORP included and 
continues to include extensive public and stakeholder involvement. 
Because a Draft Environmental Impact Report (EIR)-Environmental Impact 
Statement (EIS) was prepared to comply with the CEQA and NEPA, public 
involvement included the publication of a Notice of Preparation of an 
EIR and a Notice of Intent for an EIS. A public scoping

[[Page 404]]

meeting was held. The Draft EIR-EIS was distributed for public review 
and comment and two public meetings were held. In addition, the annual 
reports are distributed for information and comment. Numerous 
stakeholders have been involved in the project's development and 
implementation, and the public has been and continues to be informed 
about the LORP through extensive media coverage.
    In 2010, the LADWP incorporated the measures in the Conservation 
Strategy into the Owens Valley Land Management Plans (OVLMP). The Owens 
Valley Land Management Plans (OVLMP) provide management direction for 
resources on about 101,172 ha (250,000 ac) of non-urban City of Los 
Angeles-owned lands in Inyo County, California, excluding the LORP 
area. The OVLMP are overarching resource management plans that with the 
LORP Plan require monitoring and managing resources from Pleasant 
Valley Reservoir to Owens Lake.
    The OVLMP describes the management of key resource areas on lands 
managed by the LADWP, such as River-Riparian Management, Grazing 
Management, Recreation Management, Habitat Conservation Plan (HCP), 
Fire Management, Commercial Use Management, and Monitoring and Adaptive 
Management. Riparian areas, irrigated meadows, and sensitive plant or 
animal habitats were a priority in the development of the OVLMP (LADWP 
and Ecosystem Sciences 2010, Chap. 1 p. 4). The development of the 
OVLMP included public review and public and stakeholder meetings. The 
HCP chapter is currently being reviewed prior to its release for public 
comment under section 10(a)(1)(B) of the Act. The flycatcher, 
endangered least Bell's vireo, and candidate yellow-billed cuckoo 
(Coccyzus americanus) are three obligate riparian species addressed in 
the HCP.
    The OVLMP's goals include the sustainable uses and health of the 
Owens Valley ecosystem and the protection and enhancement of endangered 
and threatened species' habitat (LADWP and Ecosystem Sciences 2010, p. 
Chap. 1, 4, 10), which includes habitat for the flycatcher. These goals 
are based on the premise that sustainable land and water use management 
will protect existing resources and lead to more desirable ecological 
conditions for upland and riverine-riparian systems on LADWP-managed 
lands in Inyo County (LADWP and Ecosystem Sciences 2010, Chap 1 p. 7). 
The OVLMP also requires monitoring and adaptive management to ensure 
that the goals of the plans are achieved (LADWP and Ecosystem Sciences 
2010, Chap. 1 p. 11). A team of scientists from the LADWP and others 
will, in consultation with scientists from the California Department of 
Fish and Game and other agencies and individual experts, analyze the 
data from reference sites between years and baseline conditions to: (1) 
Identify problems or conditions which are not meeting goals or 
expectations; (2) determine if contingency monitoring is needed; (3) 
determine the most appropriate adaptive management action(s); (4) 
compile this information and present the team's conclusions and 
recommendations to the LADWP managers; and (5) oversee the 
implementation of adaptive management measures (LADWP and Ecosystem 
Sciences 2010, Chap. 9 p. 3).
Benefits of Inclusion--Los Angeles Department of Water and Power Lands
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Owens River is known to be occupied by flycatchers and 
therefore, if a Federal action or permitting occurs, there is a 
catalyst for evaluation under section 7 of the Act. Because the Owens 
River and surrounding land is privately owned by the City of Los 
Angeles and managed by the LADWP, there may only be limited benefits 
from the designation of flycatcher critical habitat along the Owens 
River, because no Federal agency manages land along this section of the 
Owens River and few Federal agencies carry out discretionary actions.
    Within the past decade, we are aware of one Federal agency that 
funded a discretionary action (Environmental Protection Agency grant) 
and one that permitted a discretionary action (Corps section 404 permit 
under the Clean Water Act). Under section 404 of the Clean Water Act, 
the Corps authorizes the deposition of dredged or fill material into 
waters of the United States through issuance of a permit. Although 
there was a Federal nexus for both of these actions, the section 7 
consultation process resulted in a determination that their 
implementation would not affect species listed under the Act. 
Therefore, because these lands are privately owned, with little Federal 
involvement, there are few catalysts for evaluation of actions under 
section 7 of the Act and a potential critical habitat designation.
    The Service is reviewing a developing HCP from the LADWP and 
associated incidental take permit under section 10 of the Act that 
includes actions along the Owens River and the flycatcher as a covered 
species. During the permit authorization process, the Service would 
complete section 7 consultation for the issuance of this section 10 HCP 
permit, evaluating the impacts to listed species and designated 
critical habitat. However, little if any conservation benefit from a 
critical habitat designation would be provided through this process 
because the LADWP is already implementing actions in the Conservation 
Strategy, which include applicable tasks in the Recovery Plan. If 
additional conservation actions were identified, they would be 
incorporated in the incidental take permit. They would not be obtained 
through the section 7 consultation process. Therefore, we are not aware 
of any Federal agency that has recently or is likely to authorize, 
fund, or carry out a discretionary action in the Owens Management Unit 
in the foreseeable future with the exception of the Service. The 
designation of critical habitat will likely provide minimal 
conservation benefit to the flycatcher because the Owens River is 
privately owned and therefore, there are few catalysts for federal 
actions to occur (which our record supports), and because the 
flycatcher and its habitat is being conserved through the 
implementation of their Conservation Strategy.
    Another benefit of including lands in a critical habitat 
designation is the designation can serve to educate the landowner and 
the public regarding the potential conservation value of an area, and 
may help focus conservation efforts to designated areas of high 
conservation value for those species. The process of proposing and 
finalizing the original and this revised critical habitat rule provided 
the Service with the opportunity to evaluate and refine the physical 
and biological features essential to the conservation of the species 
within the geographic area occupied by it at the time of listing and 
evaluate whether there are other areas essential for the conservation 
of the species. The designation process included peer review and public 
comment on the identified physical and biological features and 
geographic areas. This process is valuable to landowners and managers 
in developing conservation management plans for identified areas, other 
occupied habitat,

[[Page 405]]

and suitable habitat that may not have been included in the Service's 
determination of essential habitat.
    The educational benefits of designating lands managed by the LADWP 
are small because, as discussed above, the LADWP is aware of the value 
of its lands to flycatcher conservation has worked with the Service, 
California Department of Fish and Game, other agencies and 
organizations, and the public, and currently implements management 
measures to conserve this species and its habitat. Further, much of the 
LADWP lands were included in both the original October 12, 2004, 
proposed designation (69 FR 60706) and the August 15, 2011, revised 
proposed designation (76 FR 50542), which reached a wide audience. In 
addition, there have been and continue to be processes that involve and 
educate stakeholders and the public in the development and 
implementation of the LORP and OVLMP, which have a goal of benefiting 
the flycatcher and its habitat. The educational benefits that might 
follow critical habitat designation (such as providing information to 
LADWP managers on areas important to the long-term conservation of the 
flycatcher) were largely provided by the Conservation Strategy, the 
original designation process in 2004-2005 and publication of the 
revised critical habitat in 2011 (76 FR 50542).
    Because of the continued commitment by the LADWP to manage their 
lands in a manner that promotes flycatcher conservation, and because 
monitoring and adaptive management are conducted to ensure the goals of 
the Conservation Strategy, LORP, and OVLMP are being met, we believe 
the designation of lands managed by the LADWP in the Owens Management 
Unit as critical habitat would provide few if any additional regulatory 
and conservation benefits to the species.
Benefits of Exclusion--Los Angeles Department of Water and Power Lands
    The benefits of excluding about 128.5 km (79.8 mi) of LADWP lands 
from critical habitat designation are considerable. They include: (1) A 
strong likelihood for the continued implementation of objectives 
identified in the SWWF Conservation Strategy, Owens Valley Management 
Plan, and Lower Owens River Management Plan; (2) continued and 
strengthened working relationship with the LADWP and stakeholders to 
promote the conservation of the flycatcher and its habitat; (3) 
continued meaningful collaboration and cooperation in working toward 
recovering the flycatcher, including conservation benefits that might 
not otherwise occur; (4) encouragement of other local agencies, 
organizations, and private landowners to complete conservation plans 
that benefit the flycatcher and other federally listed species; (5) 
encouragement of additional conservation plan development in the future 
on other private lands that include the flycatcher and other federally 
listed species, and (6) relieving landowners from any additional 
regulatory burden that might be imposed by critical habitat 
designation.
    LADWP's implementation of their Conservation Strategy, LORP, and 
OVLMP, are consistent with the recovery objectives for the flycatcher. 
The LORP and OVLMP took years to develop in cooperation with several 
local and State agencies, organizations, and the public. Additionally, 
these plans provide conservation benefits for other listed species and 
unlisted sensitive species.
    Imposing an additional regulatory review by designating critical 
habitat may undermine many of these conservation efforts and may 
undermine the conservation efforts and partnerships with State and 
local agencies, organizations, and private landowners that would 
otherwise benefit the flycatcher in this and other Management Units and 
benefit other species.
    Designation of critical habitat on lands managed by the LADWP in 
the Owens Management Unit could also be viewed as a disincentive to 
those entities currently developing or considering developing similar 
plans. One of the incentives for undertaking conservation is greater 
ease of permitting where listed species are affected. Excluding LADWP 
lands in the Owens Management Unit will also preserve a partnership 
between the Service and the LADWP, which may encourage other 
conservation partnerships between our two entities in the future.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Los Angeles 
Department of Water and Power Lands
    As discussed in the Benefits of Inclusion--Los Angeles Department 
of Water and Power Lands section above, we believe the regulatory 
benefits of designating critical habitat along the Owens River would be 
minimized because of the implementation of LADWP's Conservation 
Strategy, LORP, and OVLMP. These plans address conservation issues from 
a coordinated, integrated perspective rather than a piecemeal, project-
by-project approach and will achieve more flycatcher conservation than 
we would achieve by multiple site-by-site, project-by-project section 7 
consultations involving consideration of critical habitat.
    There is limited Federal involvement in the Owens Management Unit. 
In the past, the EPA provided grants that were applied to implementing 
environmental compliance; constructing the pump station, water control 
and measuring facilities, and fences; and modifying the river intake 
structure for LORP implementation. The Corps issued a permit under the 
Clean Water Act to construct and modify some of these facilities and to 
conduct maintenance activities in wetland areas for LORP implementation 
(EPA and LADWP 2004, entire). Although there was a Federal nexus, the 
section 7 consultation process for these proposed actions resulted in a 
determination that their implementation would not affect species listed 
under the Act including the flycatcher. Since the implementation of 
these activities for the LORP, we are not aware of any other 
discretionary actions with a Federal nexus in the Owens Management 
Unit. Therefore, we anticipate there will also likely be limited future 
section 7 consultations under the Act. The exception is the LADWP's 
request for an incidental take permit from the Service under section 
10(a)(1)(B) of the Act from the development of a HCP. As part of the 
permit evaluation process, the Service must conduct an internal section 
7 consultation. Therefore, we do not expect the consultation process 
under section 7 of the Act to occur in this management unit in the 
future except with the Service under section 10(a)(1)(B) of the Act. We 
believe the conservation benefits for the flycatcher that would occur 
as a result of designating 128.5 km (79.8 mi) along the Owens River as 
critical habitat is minimal compared to the overall conservation 
benefits for the species that are and will be realized through the 
continued implementation of the Conservation Strategy, LORP, and OVLMP.
    Furthermore, the educational benefits of critical habitat 
designation, including informing the LADWP and the public of areas 
important for the long-term conservation of the species, have been and 
continue to be accomplished through notices of public comment periods 
associated with the original flycatcher critical habitat rule (69 FR 
60706), the revised proposed rule (76 FR 50542), and the extensive 
public involvement process associated with the development and 
implementation of the LORP and OVLMP. For these reasons, we believe 
that designating critical

[[Page 406]]

habitat has little benefit in areas covered by the Conservation 
Strategy, LORP, and OVLMP.
    The exclusion of the LADWP lands from flycatcher critical habitat 
will help preserve the partnerships that we developed with the LADWP. 
Much of the historic and current range and habitat of the flycatcher 
occurs on non-federal lands. Our goal of recovering the flycatcher 
cannot occur without the help of numerous non-federal landowners. 
Therefore, these partnerships with non-federal landowners are critical 
for flycatcher conservation. In the Owens Management Unit, the major 
landowner is the LADWP. Recovering the flycatcher in this unit cannot 
occur without their help and cooperation. This partnership may also 
help encourage new partnerships with other landowners and 
jurisdictions.
    We reviewed and evaluated the exclusion of 128.5 km (79.8 mi) of 
the Owens River from final revised critical habitat designation for the 
flycatcher, and based on the above considerations and consistent with 
the direction provided in section 4(b)(2) of the Act, we have 
determined that the benefits of excluding the Owens River within the 
Owens Management Unit outweigh the benefits of including them. As 
discussed above, LADWP's Conservation Strategy, LORP, and OVLMP will 
provide for the enhancement and management of habitat for and features 
essential to flycatcher conservation.
Exclusion Will Not Result in Extinction of the Species--Los Angeles 
Department of Water and Power Lands, Owens River, California
    We do not believe that this exclusion would result in the 
extinction of the species because the implementation of the 
Conservation Strategy, LORP, and OVLMP conserve the flycatcher and its 
habitat along the Owens River through the management, monitoring, and 
adaptive management practices described above. As a result of ongoing 
management and conservation of the flycatcher and its habitat on LADWP 
lands in Inyo and Mono Counties through development and implementation 
of the Conservation Strategy, LORP, and OVLMP, the Secretary has 
determined to use his discretion to exclude the 128.5 km (79.8 mi) of 
the Owens River managed by the LADWP in the Owens Management Unit from 
critical habitat under section 4(b)(2) of the Act.
Kern Management Unit
Sprague Ranch Management Plan
    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, of designating critical 
habitat. The Sprague Ranch, included in the Kern Management Unit, 
warrants exclusion from the final designation of critical habitat under 
section 4(b)(2) of the Act because we have determined that the benefits 
of excluding Sprague Ranch from flycatcher critical habitat designation 
will outweigh the benefits of including it in the final designation 
based on the long-term protections afforded for flycatcher habitat. The 
following represents our rationale for excluding the Sprague Ranch from 
the final designated critical habitat for the flycatcher in the Kern 
Management Unit.
    The Sprague Ranch is an approximately 1,772-ha (4,380-ac) parcel 
which was purchased in a public-private partnership by Audubon, CDFG, 
and the Corps in 2005. Approximately 672 ha (1,662 ac) of the Sprague 
Ranch are owned in fee by Audubon and approximately 1,100 ac (2,718 ac) 
owned in fee by CDFG. The proposed critical habitat designation 
included approximately 4.0 km (2.5 mi) or 313 ha (774 ac) of the 
Sprague Ranch. The Corps funding used to purchase and manage Sprague 
Ranch was as a result of biological opinions for the long-term 
operation of Lake Isabella Dam and Reservoir (Service 1996, 2000, 2005) 
specifically to provide habitat for and conservation of the flycatcher. 
The vegetation on the Sprague Ranch is willow (Salix sp.) and Fremont 
cottonwood, open water, wet meadows, and grasslands. During the periods 
of time flycatcher habitat is not available as result of periodic 
inundation from Isabella Dam and Reservoir operations, Sprague Ranch is 
expected to provide habitat for the flycatcher. The Corps funding was 
used to generate partnership challenge funding from the State of 
California Wildlife Conservation Board (WCB) and resulted in the 
acquisition of the larger ranch property, which provides additional 
benefits to the flycatcher.
    The Sprague Ranch is located immediately north and adjacent to the 
Kern River Preserve (KRP), which is owned and operated by Audubon, and 
shares a common border with the KRP of over 4.8 km (3 mi). Together 
these co-managed lands provide opportunities for flycatcher breeding, 
feeding, and sheltering. The flycatcher occurs throughout the Kern 
Management Unit, which includes portions of the Sprague Ranch. The 
Sprague Ranch contains existing riparian forest that can support and 
maintain nesting territories and migrating and dispersing flycatchers. 
Other portions of the Ranch require management in order to become 
nesting flycatcher habitat. Activities such as cowbird trapping, exotic 
vegetation control, and native tree plantings are other management 
activities expected to occur. The Ranch is currently being managed in 
accordance with the terms and conditions of the biological opinions 
(cited above) specifically for the benefit of the flycatcher and a 
management plan prepared cooperatively by the agencies and Audubon.
    The Sprague Ranch is managed pursuant to a conservation plan dated 
January 25, 2005. This plan was prepared in partnership with the 
Service, National Fish and Wildlife Foundation (NFWF), CDFG, WCB, the 
Packard Foundation and Audubon to provide consistent management of 
lands acquired in the Kern Management Unit in compliance with the 
biological opinions issued by the Service. Management actions required 
for the Sprague Ranch include: Demographic surveys, cowbird trapping, 
nonnative vegetation removal, livestock exclusion, hydrologic 
improvement, planting of native vegetation, noxious weed control 
activities, flood irrigating low-lying areas, upgrading of fencing, 
upgrading irrigation systems, monitoring, and reporting. These measures 
will assist in improvement, management, and conservation of flycatcher 
habitat. Habitat assessments have been conducted on the property which 
concluded that approximately 168 ha (414 ac) of land are currently 
available as potential breeding habitat, and another approximately 227 
ha (561 ac) were identified as potentially restorable to support a 
mosaic of habitat that could be used by flycatchers during post-
breeding dispersal and migration. By using the available water supply 
and distribution system, managing grazing practices, removing invasive 
non-native plant species, and planting riparian vegetation, the Sprague 
Ranch has the potential for improvement of approximately 395 ha (975 
ac) into a mosaic of habitat similar to the Kern River Preserve (KRP) 
and the South Fork Wildlife Area (SFWA). In addition, the water supply 
and distribution system of the Sprague Ranch has a beneficial effect on 
the hydrology that supports the riparian habitats within the KRP and 
the SFWA.

[[Page 407]]

Benefits of Inclusion--Sprague Ranch
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Kern River is known to be occupied by flycatchers and 
therefore, if a Federal action or permitting occurs, there is a 
catalyst for evaluation under section 7 of the Act. Through section 7 
consultation, some minimal benefit could occur from a critical habitat 
designation at the Sprague Ranch. The Sprague Ranch may have additional 
conservation value above sustaining existing populations because it is 
being managed to not only maintain existing habitat, but also to 
improve, protect, and possibly expand upon the amount of nesting 
habitat that would provide for growth of existing populations. 
Expansion of existing populations in these areas would be an element of 
recovering the flycatcher. However, because this piece of land was 
purchased and is being managed specifically for flycatcher habitat, 
federal actions are unlikely to occur to which would prevent these 
goals from occurring. The implementation of future management actions 
to improve flycatcher habitat on Sprague Ranch are unlikely to require 
section 7 consultation between the Corps (the likely federal action 
agency) and the Service, because all habitat improvement and management 
actions are not likely to result in adverse effects to the flycatcher 
or its habitat (Tolleffson, R. 2012, pers. comm.). As a result, any 
rare Federal action that may result in formal consultation will likely 
result in only discretionary conservation recommendations (i.e., 
adverse modification threshold is not likely to be reached). Therefore, 
we believe there is an extremely low probability of mandatory elements 
(i.e., reasonable and prudent alternatives) arising from formal section 
7 consultations that include consideration of designated flycatcher 
critical habitat, and as a result, the benefits of inclusion are 
minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act and CEQA. These laws analyze the potential for projects 
to significantly affect the environment. Critical habitat may signal 
the presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including this portion of the Kern River within the 
designation because the Sprague Ranch was purchased specifically for 
flycatcher habitat, and therefore it is well known as an important area 
for flycatcher management and recovery. Also, managing agencies such as 
the Corps, CDFG, and Audubon are implementing a long-term management 
plan that addresses flycatcher habitat, therefore the educational 
benefits or additional support for implementing other environment 
regulations from a critical habitat designation are not expected to be 
realized in this area.
Benefits of Exclusion--Sprague Ranch
    We believe the conservation benefits that would be realized by 
foregoing designation of critical habitat for the flycatcher on the 
Sprague Ranch include: (1) Continuance and strengthening of our 
effective working relationship with the Corps, CDFG, and Audubon to 
promote flycatcher conservation and its habitat as opposed to reactive 
redundant regulation; (2) allowance for continued meaningful 
collaboration and cooperation in working toward species recovery; and 
(3) encouragement of additional conservation for the flycatcher and 
other federally listed and sensitive species.
    The flycatcher occurs on both public and private lands throughout 
the Kern Management Unit, but the Sprague Ranch is somewhat unique in 
that it is a partnership between the Corps, CDFG, Audubon, and the 
Service. The management of Sprague Ranch is conducted in accordance 
with the terms and conditions of a biological opinion, which require 
actions for the conservation of flycatchers.
    Proactive conservation efforts and partnerships with private or 
non-Federal entities are necessary to prevent the extinction and 
promote the recovery of the flycatcher in the Kern Management Unit. 
Therefore, we believe that flycatcher habitat located within properties 
covered by management plans or conservation strategies that protect or 
enhance its habitat will benefit substantially from voluntary landowner 
management actions.
    Because the conservation benefits of critical habitat are primarily 
regulatory or prohibitive in nature, the Service contends that where 
consistent with the discretion provided by the Act, it is necessary to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-15; 
Bean 2002, pp. 1-7). Thus, we believe it is essential for the recovery 
of the flycatcher to build on continued conservation activities such as 
these with proven partners, and to provide positive incentives for 
other private landowners who might be considering implementing 
voluntary conservation activities but have concerns about incurring 
incidental regulatory or economic impacts.
The Benefits of Exclusion Outweigh the Benefits of Inclusion--Sprague 
Ranch
    Based on the above considerations we have determined that the 
benefits of excluding the Sprague Ranch from critical habitat in the 
Kern Management Unit outweigh the benefits of including it as critical 
habitat for the flycatcher.
    The Sprague Ranch was purchased specifically to manage habitats for 
the flycatcher and is jointly managed by the Corps, CDFG, and Audubon 
in accordance with the terms and conditions of the biological opinions 
that have resulted in a positive working partnership. The strategy of 
the managing partnership is to implement management and habitat 
improvement measures to achieve flycatcher conservation goals. There 
are little additional educational or regulatory benefits of including 
these lands as critical habitat. The Kern River is well known by the 
public and managing agencies for its value and importance to the 
flycatcher. Likewise, there will be little additional Federal 
regulatory benefit to the species because (a) there is a low likelihood 
that the Sprague Ranch will be negatively affected to any significant 
degree by Federal activities that were not consulted on in the existing 
biological opinions pursuant to section 7 consultation requirements, 
and (b) the Sprague Ranch is being managed in accordance with the terms 
and conditions of the biological opinions and we believe that based on

[[Page 408]]

ongoing management activities there would be no additional requirements 
pursuant to a consultation that addresses critical habitat.
    We believe the conservation measures for the flycatcher that are 
occurring or will be used in the future on the Sprague Ranch (i.e., 
demographic surveys, cowbird trapping, nonnative vegetation removal, 
livestock exclusion, hydrologic improvement, planting of native 
vegetation, monitoring, and reporting) provide as many, and likely 
more, overall benefits than would be achieved through implementing 
section 7 consultations on a project-by-project basis under a critical 
habitat designation. This is because management that is occurring or 
that is planning to occur will be the same activities that would be 
implemented in order to maintain or improve flycatcher habitat.
    In conclusion, we find that the exclusion of critical habitat on 
the Sprague Ranch would most likely have a net positive conservation 
effect on the recovery and conservation of the flycatcher when compared 
to the positive conservation effects of a critical habitat designation. 
As described above, the overall benefits to the flycatcher of a 
critical habitat designation for this property is relatively small. In 
contrast, we believe that this exclusion will enhance our existing 
partnership with the Corps, CDFG, and Audubon, and it will set a 
positive example and could provide positive incentives to other non-
Federal landowners who may be considering implementing voluntary 
conservation activities on their lands. We conclude there is a higher 
likelihood of beneficial conservation activities occurring in these and 
other areas for the flycatcher without designated critical habitat than 
there would be with designated critical habitat on the Sprague Ranch.
Exclusion Will Not Result in Extinction of the Species--Sprague Ranch
    We believe that exclusion of these lands will not result in the 
extinction of the subspecies because the flycatcher already occupies 
the Sprague Ranch and other portions of the Kern River and there is a 
long-term commitment by proven land management partners to manage this 
property specifically for the flycatcher. Actions that might adversely 
affect the subspecies, while not anticipated to occur within this 
property, are expected to have a Federal nexus, and would thus undergo 
a section 7 consultation with the Service. The jeopardy standard of 
section 7 and routine implementation of habitat preservation through 
the section 7 process provide assurance that the species will not go 
extinct. In addition, the flycatcher is protected from take under 
section 9 of the Act. The exclusion leaves these protections unchanged 
from those that would exist if the excluded areas were designated as 
critical habitat.
    Another reason that exclusion of these lands will not result in 
extinction of the species is that critical habitat is being designated 
for the flycatcher in other areas along the Kern River that will be 
accorded the protection from adverse modification by Federal actions 
using the conservation standard based on the Ninth Circuit decision in 
Gifford Pinchot. Additionally, the flycatcher occurs on other adjacent 
lands protected and managed either explicitly for the subspecies, or 
indirectly through more general objectives to protect natural habitat 
values. This provides protection from extinction while conservation 
measures are being implemented.
Hafenfeld Ranch Management Plan
    Hafenfeld Ranch is approximately 100 ha (247 ac) in size and lies 
on and adjacent to the South Fork Kern River. Within the larger ranch 
are two perpetual conservation easements that were placed for the 
purposes of riparian and wetland vegetation protection and flycatcher 
conservation. The landowner granted these easements willingly and in 
partnership with Department of Agriculture-Natural Resource 
Conservation Service (NRCS), the Service, Corps, and California 
Rangeland Trust (CRT). Approximately 0.3 km (0.2 mi) or about 49 ha 
(122 ac) of the Hafenfeld Ranch was proposed for designation of 
flycatcher critical habitat.
    The Hafenfeld Ranch is part of a continuous corridor of flycatcher 
habitat along the south fork of the Kern River that connects the east 
and west segments of the KRP. The dominant vegetation in the Kern 
Management Unit is willow (Salix sp.) and cottonwood (Populus 
fremontii). Other plant communities of the Kern Management Unit include 
open water, wet meadow, and riparian uplands. Portions of the Hafenfeld 
Ranch are seasonally flooded, forming a mosaic of wetland communities 
throughout the area. The remainder of the property consists of wet 
meadow and riparian upland habitats, consistent with the character of 
habitat along the south fork Kern River and the Kern Management Unit. 
Flycatchers have been recorded throughout the south fork Kern River and 
the Hafenfeld Ranch.
    The first conservation easement of approximately 38 ha (93 ac) was 
recorded in 1996, between the landowner and the NRCS under authority of 
the Wetland Reserve Program. The purpose of the easement is to ``* * * 
restore, protect, manage, maintain, and enhance the functional values 
of wetlands and other lands, and for the conservation of natural values 
including fish and wildlife habitat, water quality improvement, flood 
water retention, groundwater recharge, open space, aesthetic values, 
and environmental education. It is the intent of NRCS to give the 
Landowner the opportunity to participate in restoration and management 
activities in the easement area.''
    The second conservation easement of approximately 57 ha (140 ac) 
was recorded in 2007, between the landowner and CRT as a result of 
biological opinions for the long-term operation of Lake Isabella Dam 
and Reservoir (Service 1996, 2000, 2005) specifically to provide 
habitat and conservation for the flycatcher. The purposes of the 
easement includes: (1) Protection of the riparian area historically 
used by breeding flycatchers; (2) continuation of flows into the 
riparian area; and (3) protection of riparian habitat. An endowment to 
implement these purposes was granted by the Corps to the National Fish 
and Wildlife Foundation to be utilized by CRT.
    The Hafenfeld conservation easement, recorded in favor of CRT under 
authorities of the biological opinion issued to the Corps, is managed 
pursuant to a conservation plan dated January 25, 2005. This plan was 
prepared in partnership with the Service, NFWF, CDFG, WCB, the Packard 
Foundation, and Audubon to provide consistent management of lands 
acquired in the Kern Management Unit. Management activities that will 
protect, maintain, and improve flycatcher habitat include: (1) Limiting 
public access to the site, (2) managing grazing, (3) protection of the 
site from development or encroachment, (4) maintenance of the site as 
permanent open space that has been left predominantly in its natural 
vegetative state, and (5) the spreading of flood waters which promotes 
the moisture regime and wetland and riparian vegetation determined to 
be essential for flycatcher conservation. Other prohibitions of the 
easements which would benefit flycatcher conservation include: (1) 
Haying, mowing or seed harvesting; (2) altering the grassland, 
woodland, wildlife habitat, or other natural features; (3) dumping 
refuse, wastes, sewage, or other debris; (4) harvesting wood products; 
(5) draining,

[[Page 409]]

dredging, channeling, filling, leveling, pumping, diking, or impounding 
water features or altering the existing surface water drainage or flows 
naturally occurring within the easement area; and (6) building or 
placing structures on the easement. Funding for the implementation of 
the conservation plan is assured by an endowment held by NFWF and 
through commitments by NRCS, CRT, and the Hafenfeld Ranch under 
provisions of the Conservation Easement.
Benefits of Inclusion--Hafenfeld Ranch
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Kern River is known to be occupied by flycatchers and 
therefore, if a Federal action or permitting occurs, there is a 
catalyst for evaluation under section 7 of the Act. Through section 7 
consultation, some minimal benefit could occur from a flycatcher 
critical habitat designation at the Hafenfeld Ranch. The Hafenfeld 
Ranch may have additional conservation value above sustaining existing 
flycatcher populations because it is being managed to not only maintain 
existing habitat, but also to improve, protect, and possibly expand 
upon the amount of nesting habitat that would provide for growth of 
existing populations. Expansion of existing populations in these areas 
would be an element of recovering the flycatcher. However, because 
these lands are privately owned and not under federal management, the 
occurrence of federal actions that would generate evaluation under 
section 7 and a critical habitat designation are expected to be 
limited. Additionally, the established conservation easements goals 
(``* * * restore, protect, manage * * * the functional values * * * for 
the conservation of * * * fish and wildlife habitat * * *'') are 
intended to protect riparian vegetation and the flycatcher. As result, 
it is not likely that federal actions or the easement holder would 
allow actions that would result in depreciable diminishment or a long-
term reduction of the capability of the habitat to recover existing 
populations. As a result, any rare Federal action that may result in 
formal consultation will likely result in only discretionary 
conservation recommendations (i.e., adverse modification threshold is 
not likely to be reached). Therefore, we believe there is an extremely 
low probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of designated flycatcher critical habitat, and as a 
result, the benefits of inclusion are minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act and CEQA. These laws analyze the potential for projects 
to significantly affect the environment. Critical habitat may signal 
the presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including this portion of the Kern River within the 
designation because the Hafenfeld Ranch established conservation 
easements that addressed the flycatcher and its habitat, and therefore 
it is well known as an important area for flycatcher management and 
recovery. Also, managing agencies such as the Corps, NRCS, Service, 
CRT, and CDFG were involved with establishing these easements and 
development of a long-term management plan that addresses flycatcher 
habitat; therefore the educational benefits or additional support for 
implementing other environment regulations from a critical habitat 
designation are not expected to be realized in this area.
Benefits of Exclusion--Hafenfeld Ranch
    We believe conservation benefits would be realized by foregoing 
designation of critical habitat for the flycatcher at the Hafenfeld 
Ranch include: (1) Continuance and strengthening of our effective 
working relationship with the Hafenfeld Ranch and the Corps, CRT, and 
CDFG to promote voluntary, proactive conservation of the flycatcher and 
its habitat as opposed to reactive regulation; (2) allowance for 
continued meaningful collaboration and cooperation in working toward 
species recovery, including conservation benefits that might not 
otherwise occur; and (3) encouragement of additional conservation 
easements and other conservation and management plan development in the 
future on the Hafenfeld Ranch and other lands for the flycatcher and 
other federally listed and sensitive species.
    The flycatcher occurs on public and private lands throughout the 
Kern Management Unit. Proactive voluntary conservation efforts by 
private or non-Federal entities are necessary to prevent the extinction 
and promote the recovery of the flycatcher in the Kern Management Unit.
    Proactive conservation efforts and partnerships with private or 
non-Federal entities are necessary to prevent the extinction and 
promote the recovery of the flycatcher in the Kern Management Unit. 
Therefore, we believe that flycatcher habitat located within private 
properties, like the Hafenfeld Ranch, covered by management plans or 
conservation strategies that protect or enhance its habitat will 
benefit substantially from voluntary landowner management actions.
    Because the conservation benefits of critical habitat are primarily 
regulatory or prohibitive in nature, the Service believes that where 
consistent with the discretion provided by the Act, it is necessary to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1996, 1-15; Bean 
2002, 1-7). Thus, we believe it is essential for the recovery of the 
flycatcher to build on continued conservation activities such as these 
with proven partners, like the Hafenfeld Ranch, and to provide positive 
incentives for other private landowners who might be considering 
implementing voluntary conservation activities but have concerns about 
incurring incidental regulatory or economic impacts.
The Benefits of Exclusion Outweigh the Benefits of Inclusion--Hafenfeld 
Ranch
    Based on the above considerations, we have determined that the 
benefits of excluding the Hafenfeld Parcel from critical habitat in the 
Kern Management Unit outweigh the benefits of including it as critical 
habitat for the flycatcher. The Hafenfeld Parcel is currently operating 
under a conservation plan to implement conservation measures and 
achieve important conservation goals through the conservation measures 
described above, as well as land and

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water management efforts such as willow planting and management of 
surface flows to achieve the optimal flooding regime for the 
enhancement of important riparian and wetland habitat for the 
flycatcher.
    The Service believes the additional regulatory and educational 
benefits of including these lands as critical habitat are relatively 
small. The Service anticipates that the conservation strategies will 
continue to be implemented in the future, and that the funding for 
these activities will be apportioned in accordance with the provisions 
of the Conservation Plan. The designation of critical habitat can serve 
to educate the general public as well as conservation organizations 
regarding the potential conservation value of an area, but this goal is 
already being accomplished through the identification of this area in 
the Conservation Plan described above. Likewise, there will be little 
additional Federal regulatory benefit to the species because (a) there 
is a low likelihood that the Hafenfeld Parcel will be negatively 
affected to any significant degree by Federal activities requiring 
section 7 consultation, and (b) we believe that based on ongoing 
management activities there would be no additional requirements 
pursuant to a consultation that addresses critical habitat.
    Excluding these privately owned lands with conservation strategies 
from critical habitat may, by way of example, provide positive social, 
legal, and economic incentives to other non-Federal landowners who own 
lands that could contribute to listed species recovery if voluntary 
conservation measures on these lands are implemented.
    We believe the conservation measures for the flycatcher on the 
Hafenfeld Ranch that include the activities described above that 
include land and water management actions to enhance important riparian 
and wetland habitat provide as much, and likely more comprehensive 
benefits as would be achieved through implementing section 7 
consultation on a project-by-project basis under a critical habitat 
designation. This is because they land managers are already 
implementing actions that improve and maintain flycatcher habitat.
    In conclusion, we find that the exclusion of critical habitat on 
the Hafenfeld Parcel would most likely have a net positive conservation 
effect on the recovery and conservation of the flycatcher when compared 
to the positive conservation effects of a critical habitat designation. 
As described above, the overall benefits to the flycatcher from a 
critical habitat designation on the Hafenfeld Ranch are relatively 
small. In contrast, we believe that this exclusion will enhance our 
existing partnership with these landowners, and it will set a positive 
example and provide positive incentives to other non-Federal landowners 
who may be considering implementing voluntary conservation activities 
on their lands. We conclude there is a higher likelihood of beneficial 
conservation activities occurring in these and other areas for the 
flycatcher without designated critical habitat than there would be with 
designated critical habitat on these properties.
Exclusion Will Not Result in Extinction of the Species--Hafenfeld Ranch
    We believe that exclusion of these lands will not result in the 
extinction of the subspecies because the flycatcher already occupies 
the Hafenfeld Ranch and other portions of the Kern River and there is a 
long-term commitment by proven land management partners to manage this 
property for the flycatcher. Actions that might adversely affect the 
subspecies, while not anticipated to occur within this property, are 
expected to have a Federal nexus, and would thus undergo a section 7 
consultation with the Service. The jeopardy standard of section 7 and 
routine implementation of habitat preservation through the section 7 
process provide assurance that the species will not go extinct. In 
addition, the flycatcher is protected from take under section 9 of the 
Act. The exclusion leaves these protections unchanged from those that 
would exist if the excluded areas were designated as critical habitat.
    Another reason that exclusion of the Hafenfeld Ranch will not 
result in extinction of the species is that critical habitat is being 
designated for the flycatcher in other areas along the Kern River that 
will be accorded the protection from adverse modification by Federal 
actions using the conservation standard based on the Ninth Circuit 
decision in Gifford Pinchot. Additionally, the flycatcher occurs on 
other adjacent lands protected and managed either explicitly for the 
subspecies, or indirectly through more general objectives to protect 
natural habitat values. This provides protection from extinction while 
conservation measures are being implemented.
Salton Management Unit
Iipay Nation of Santa Ysabel Partnership
    Please see the end of this section for a discussion about our 
partnership with tribes from the Santa Ana, San Diego, and Salton 
Management Units.
Little Colorado Management Unit
Zuni Pueblo Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
    Middle Colorado, Bill Williams, Hoover to Parker Dam, and Parker 
Dam to Southerly International Boundary Management Units, Arizona, 
California, and Nevada.
Lower Colorado River Multi-Species Conservation Plan
    The LCR MSCP (2004, entire) was developed for areas along the LCR 
along the borders of Arizona, California, and Nevada from the 
conservation space of Lake Mead to Mexico (and a small portion of the 
lower Bill Williams River in Arizona), in the Counties of La Paz, 
Mohave, and Yuma in Arizona; Imperial, Riverside, and San Bernardino 
Counties in California; and Clark County in Nevada. The LCR MSCP 
primarily addresses activities associated with water storage, delivery, 
diversion, and hydroelectric production (water management), and the 
conservation of species affected by those actions. The Secretary of the 
Interior (Secretary) signed the Record of Decision on April 2, 2005. 
Discussions began on the development of this HCP in 1994, but an 
important catalyst was a 1997 jeopardy biological opinion for the 
flycatcher issued to the USBR for LCR operations (Service 1997, 
entire). As a result, flycatcher conservation and development of 
flycatcher habitat is a significant part of the LCR MSCP. The LCR MSCP 
covers a 50-year period of time from 2005 to 2055.
    The Federal agencies whose water management activities are 
addressed through the LCR MSCP are the USBR, Bureau of Indian Affairs 
(BIA), National Park Service (NPS), BLM, Western Area Power 
Administration, and Service. The non-Federal permittees covered in 
Arizona are: The Arizona Department of Water Resources; Arizona 
Electric Power Cooperative Inc.; Arizona Game and Fish Department 
(AGFD); Arizona Power Authority; Central Arizona Water Conservation 
District; Cibola Valley Irrigation and Drainage District; City of 
Bullhead City; City of Lake Havasu City; City of Mesa; City of 
Somerton; City of Yuma; Electrical District No. 3, Pinal County, 
Arizona; Golden Shores Water Conservation District; Mohave County Water 
Authority; Mohave Valley Irrigation and Drainage District; Mohave Water 
Conservation District; North Gila Valley Irrigation and Drainage 
District; Salt River Project Agricultural

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Improvement and Power District; Town of Fredonia; Town of Thatcher; 
Town of Wickenburg; Unit ``B'' Irrigation and Drainage District; 
Wellton-Mohawk Irrigation and Drainage District; Yuma County Water 
Users' Association; Yuma Irrigation District; and Yuma Mesa Irrigation 
and Drainage District. The permittees covered in California are: The 
City of Needles, the Coachella Valley Water District, the Colorado 
River Board of California, the Imperial Irrigation District, the Los 
Angeles Department of Water and Power, the Palo Verde Irrigation 
District, the San Diego County Water Authority, the Southern California 
Edison Company, the Southern California Public Power Authority, Bard 
Water District, and The Metropolitan Water District of Southern 
California. The permittees covered in Nevada are: The Colorado River 
Commission of Nevada, the Nevada Department of Wildlife (NDOW), Basic 
Water Company, and the Southern Nevada Water Authority.
    The LCR MSCP also addresses the BIA's water management activities 
on the multiple tribal lands that are part of the LCR MSCP's planning 
area (Hualapai, Fort Mojave, Chemehuevi, Colorado River, Quechan, and 
Cocopah Tribes).
    The Secretary is vested with the responsibility to manage the main-
stem waters of the LCR pursuant to a body of law commonly referred to 
as the ``Law of the River'' (LOR). The LOR includes, but is not limited 
to a variety of Federal and State laws, interstate compacts, an 
international treaty, court decisions, Federal contracts, Federal and 
State regulations, and multi-party agreements extending at least as far 
back as 1899 with the River and Harbors Act of 1899. The most relevant 
components of the LOR for this discussion are the Colorado River 
Compact of 1922, the Boulder Canyon Project Act of 1928, the California 
Seven Party Agreement of 1931, the 1944 Water Treaty between the United 
States and Mexico, The Upper Colorado River Basin Compact of 1948, the 
Colorado River Storage Project Act of 1956, the 1964 Supreme Court 
Decree in Arizona v. California, and the Colorado River Basin Project 
Act of 1968. The Secretary serves as ``Watermaster'' related to LCR 
operations and management of the and has vested those discretionary and 
non-discretionary actions with the USBR for implementation. 
Principally, these actions include river regulation, improvement of 
navigation, flood control, providing for storage, delivery and 
accounting of Colorado River water to entities within the state 
apportionments (entities with present perfected rights, water delivery 
contracts, or other Federal or Secretarial reservations of water), and 
generation of hydroelectric power. The extent of these actions and 
their status as discretionary or non-discretionary was discussed in the 
LCR MSCP Biological Assessment (LCR MSCP 2004a, pp. 2-1--2-68).
    The Law of the River, discussed above, came into play during the 
1997 section 7 consultation between USBR and the Service (Service 1997, 
entire). The underlying facts of this 1997 section 7 consultation 
illustrate the kind of environmental issues which occur along the LCR 
due to BOR's lack of discretion to modify its water management duties. 
The decline of Lake Mead water levels during several years of drought 
created conditions for flycatcher habitat to become established in the 
exposed lakebed. This flycatcher habitat, used by nesting flycatchers, 
was later partially inundated as the lake water levels rose in years 
with more rainfall and/or snowmelt. Some flycatcher nests fell into 
Lake Mead when the willows supporting them gave way due to being 
inundated by water for long periods. During the 1997 section 7 
consultation, the Service found that USBR's continued operations on the 
LCR would jeopardize the continued existence of the flycatcher. The 
Service provided USBR with a reasonable and prudent alternative that 
called upon USBR to release water from Lake Mead to avoid inundating 
the willows. USBR then advised the Service that USBR did not have legal 
discretion to release water from Lake Mead due to its legal 
requirements to store water for various other parties. The Service then 
provided a different reasonable and prudent alternative to USBR, which 
required USBR to procure and protect 567 ha (1,400 ac) of alternative 
habitat, preferably on the LCR, no later than January 1, 2001. The 
reasonable and prudent alternative also required USBR to provide 
additional long-term mitigation measures through (1) acquisition of 
additional flycatcher habitat and (2) continued development of the LCR 
MSCP. The Secretary of Interior's reliance on this second reasonable 
and prudent alternative was upheld by the Ninth Circuit Court of 
Appeals in Southwest Center for Biological Diversity v. U.S. Bureau of 
Reclamation, 143 F.3d 515 (9th Cir. 1998).
    Because of requirements under the Law of the River that protect the 
regulation and delivery of Colorado River water to the western United 
States, the most challenging task for the LCR MSCP partners is to 
overcome the environmental impacts from decades of dam operations and 
channel maintenance without the ability to change dam operations to re-
create the physical river conditions needed for flycatcher riparian 
habitat. The regulation of the Colorado River alters the magnitude, 
frequency, duration, and timing of river flow, thereby impacting the 
ability to replenish aquifers, elevate groundwater, move sediment, and 
grow extensive riparian forests (Poff et al. 1997, pp. 769-781). The 
effect of this river regulation, combined with stream channelization, 
has further armored stream banks, incised the river channel, and thus 
disconnected the stream from the floodplain. Under existing conditions, 
dams prevent flood flows from occurring and existing regulated flows 
cannot extend beyond the river channel onto the floodplain. The 
Flycatcher Recovery Team recognized these challenges along the LCR and 
understood that creating and managing nesting habitat was a viable 
recovery strategy because of the flexibility the flycatcher 
demonstrated in using habitat created in manmade altered situations 
(reservoir inflows, agriculture return flows, irrigation ditches). As a 
result, the LCR MSCP partners are using agricultural fields adjacent to 
the river channel with existing water rights to cultivate and manage 
riparian habitat specifically for the benefit of nesting and migrating 
flycatchers.
    The flycatcher is a key species in the LCR MSCP where the 
permittees will create and maintain 1,639 ha (4,050 ac) of flycatcher 
habitat within the planning area, which includes NWRs, tribal lands, 
and other Federal and private lands (from Lake Mead to Mexico). The 
intent is to create, within the Lake Mead to Mexico LCR MSCP planning 
area, thousands of acres of protected and managed riparian habitat that 
can be used by territorial, breeding, non-breeding, foraging, 
dispersing, and migrating flycatchers and reach the conservation goals 
established in the Recovery Plan within the legal and physical 
limitations existing along the LCR. The development of flycatcher 
habitat will primarily occur within the Management Units (Hoover to 
Parker and Parker to Southerly International Border) that are the most 
significant portion of the LCR MSCP action area. Streams in the Middle 
Colorado (Colorado River-Lake Mead), Virgin (Virgin River), Pahranagat 
(Muddy River), and Bill Williams (Bill Williams River) Management Units 
in Arizona, Utah, and Nevada, are briefly represented within the LCR 
planning area. Management and tasks associated with the development of 
these habitats

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will result in improving and maintaining essential migration stopover 
habitat, improving meta-population stability of nesting populations, 
and reducing the risk of catastrophic losses due to wildfire. Overall, 
these 1,639 ha (4,050 ac) are anticipated to meet the flycatcher 
conservation goals recommended in the Recovery Plan.
    In addition to flycatcher habitat creation, provisions are made in 
the LCR MSCP to provide funds to ensure the maintenance of flycatcher 
habitat in suitable nesting conditions through the Habitat Management 
Fund and to conduct additional survey, research, management, monitoring 
of flycatchers, flycatcher habitat, and flycatcher-related issues.
    Since implementing the LCR MSCP in 2005, the partners have 
conducted multiple flycatcher projects to satisfy the MSCP's goals and 
objectives. Flycatcher surveys and monitoring has been conducted 
annually throughout the LCR MSCP planning area (McLeod et al. 2008, pp. 
77-92, 113-122; McLeod and Pelligrini 2011, pp. 13-51, 77-91; 2012, pp. 
7-43, 71-84). Research has been completed evaluating cowbird control 
and the effects of nest predation (Ryan and White 2006, entire; Theimer 
et al. 2010, entire); the flycatcher's insect prey base (Wiesenborn and 
Heydon 2007, entire; Wiesenborn et al. 2008, entire; Wiesenborn 2010, 
entire); and the subspecies identity of migrating flycatchers (Paxton 
et al. 2005, entire). Additionally, flycatcher habitat evaluations have 
been conducted to assist in the development of mitigation sites 
(BioWest 2006, entire; Calvert 2008, entire; USBR 2012, p. 208). In 
2011, an attempt to improve flycatcher nesting habitat at Topock Marsh 
on the Havasu NWR occurred by attempting to improve moist soil 
conditions and vegetation quality by pumping water onto the ground's 
surface underneath vegetation (USBR 2012, p. 208).
    To date, 547 ha (1,352 ac) have been acquired and managed to 
develop riparian habitat through the LCR planning area in parts of 
Arizona and California (USBR 2012, p. 72). Migrant flycatchers have 
been found using these riparian habitats, but nesting territories have 
yet to be detected. The LCR MSCP partners continue to acquire, develop, 
study, manage, and enhance riparian mitigation habitat sites to meet 
the MSCP's flycatcher goals. Another benefit of the LCR MSCP is that 
other covered and sensitive riparian obligate bird species have been 
found nesting in these mitigation sites such as yellow-billed cuckoo, 
yellow warbler, and Bell's vireo (USBR 2012, pp. 237-249).
    Since implementation of the LCR MSCP in 2005, flycatchers have 
occurred in abundance as migrants throughout the length of the LCR; 
however territories along the LCR within the Lake Mead to Mexico 
planning area have been detected only at the Havasu and Bill Williams 
River NWRs and within the Lake Mead National Recreation Area (MacLeod 
et al. 2008, pp. 89-92). A few lone flycatcher territories, with no 
nesting recorded, were detected at various other locations along the 
LCR below Hoover Dam prior to the LCR MSCP's implementation (Service 
2002, Fig. 8). As a result of implementing updated survey protocols and 
with additional information, these lone territories (primarily south of 
the Bill Williams River) have yet to be detected (McLeod et al. 2008, 
pp. 89-92; McLeod and Koronkiewicz 2009, pp. 54-56; 2010, pp. 46-47; 
McLeod and Pelligrini 2011, pp. 51-52; 2012, pp. 43-44).
    In 2011, flycatcher surveys occurred at 64 sites along 15 study 
areas throughout the entire LCR planning area and its tributaries (USBR 
2012, p. 207). Flycatchers (migrants and territorial flycatchers) were 
detected at 47 of the 64 sites (USBR 2012, p. 208). From 2009 to 2011, 
along the main-stem of the LCR a maximum of two flycatcher territories 
occurred at Topock Marsh at Havasu NWR.
    Conservation and development of flycatcher habitat is also a 
priority for land managers within the MSCP planning area. In 
particular, the Bill Williams River, Havasu, Cibola, and Imperial NWRs 
and the Hualapai, Chemehuevi, Fort Mojave, CRIT, and Quechan Tribes are 
implementing conservation strategies to manage existing riparian 
resources (see below). Similarly, the land management strategies of the 
BLM (Service 2006, pp. 12-13; 2007, p. 15; 2009, pp. 20-21) and NPS 
(Service 2004b, pp. 47-49) (also LCR MSCP partners) have focused on 
preserving existing riparian habitat. All of these entities face 
similar challenges individually as the LCR MSCP partners do 
collectively; the alteration of Colorado River flow provides a 
considerable hurdle in improving riparian habitat quality.
U.S. Fish and Wildlife Service National Wildlife Refuges--Bill Williams 
River, Havasu, Cibola, and Imperial NWRs
    The Bill Williams, Havasu, Cibola, and Imperial NWRs currently 
operate under a Comprehensive Management Plan (Service 1994, entire) 
that has been evaluated under NEPA and section 7 of the Act. Some of 
the goals included in the LCR NWRs Comprehensive Management Plan (1994-
2014) (Service 1994, pp. 137-156) are to: ``* * * restore and maintain 
the natural diversity * * *''; ``* * * achieve threatened and 
endangered species recovery * * *''; ``* * * revegetate substantial 
amounts of habitat with native mixes of vegetation leading to 
biological diversity; ``* * * enhance use of Colorado River water and 
protect existing water rights holdings * * *''; ``* * * ensure only 
compatible and appropriate activities occur * * * and * * * regulate 
all activities * * * that are potentially harmful to refuge 
resources''; and to ``* * * effect improvements to funding and staffing 
that will result in long lasting enhancements to habitat and wildlife 
resources * * * leading to achievement of the goals of this plan and 
the goals of the NWR System.''
Service--Bill Williams NWR
    The Bill Williams NWR consists of 2,471 ha (6,105 ac) (Service 
1994, p. 34) and as a tributary of the LCR located below Alamo Dam, 
includes the largest flood-regenerated riparian forest on the LCR. The 
Bill Williams NWR contains approximately 931 ha (2,300 ac) of 
cottonwood, willow, mesquite, and salt cedar woodlands and terrace 
shrublands. It is described by the Executive Order establishing the 
area ``* * * as a refuge and breeding ground for migratory birds and 
other wildlife.'' From 1994 to 2007, 1 to 15 flycatcher territories 
(and migrant flycatchers) were detected on the NWR annually (USGS 
2008). Habitat goals are to protect, maintain, and, if possible, 
enhance habitats, particularly those for neo-tropical migrants, 
endangered species, and other species of concern.
Service--Havasu NWR
    The Havasu NWR consists of 15,551 ha (38,427 ac) (Service 1994, p. 
33) and some of the NWRs goals have been to identify specific areas 
where flycatcher habitat will be maintained, improved, protected, and 
managed, because as keystone woody riparian species, its habitat is a 
specific NWR goal.
    Havasu NWR riparian habitat management and maintenance projects are 
underway and will continue in order to provide a flycatcher 
conservation benefit. For example, approximately 40 ha (100 ac) in the 
Beal Unit and 20 ha (50 ac) in the Pintail Unit are being restored and 
managed for woody riparian vegetation. During the 2004 fiscal year, a 
total of 8,765 cottonwoods, 4,800 Goodding's willows, 4,065 Coyote 
willow, and 940 mesquites were planted in the Beal Unit. In the Pintail 
Unit, during the 2004 fiscal year, 1,650

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cottonwoods and 1,175 willows were planted. In the 1,619 ha (4,000 ac) 
Topock Unit, habitat exists and is being managed for nesting 
flycatchers and wading birds, and the 202 ha (500 ac) Whiskey Slough 
Unit is also targeted for flycatcher management.
    In addition to the specific Havasu NWR vegetation management, 
additional NWR tasks occur in order to improve habitat quality and 
persistence. Specific water management to mimic the natural hydrology 
is needed for woody vegetation and to maintain conditions and prey for 
nesting flycatchers. Management of feral pigs that can harm and destroy 
vegetation is needed to protect habitat. Additionally, management of 
exotic woody and weed species such as salt cedar and Johnson grass 
occurs to reduce risks of fire in riparian areas.
Service--Cibola NWR
    The Cibola NWR consists of approximately 6,745 ha (16,667 ac) 
(Service 1994, p. 34) and some of their main objectives are the 
development of wetland, riverine, riparian, moist soil, and 
agricultural habitat in order to maintain the natural abundance and 
diversity of native species, habitats and communities which are found 
in the LCR floodplain (with emphasis on trust resources, endangered and 
threatened species, and other species of concern). As a result, 
flycatcher migratory and nesting habitat, as well as habitat for other 
passerine species is specifically identified as important to maintain, 
preserve, and restore. A single flycatcher territory and migrating 
flycatchers have been detected on the Cibola NWR.
    Some primary Cibola NWR goals are to maintain existing native 
riparian woodland and establish and manage an average of 20 ha (50 ac) 
annually through seeding and planting native mesquite, cottonwood, and 
willow trees, and associated understory plants. Three different NWR 
Management Units that contain approximately 323 ha (800 ac), 6 ha (15 
ac), and 40 ha (100 ac) of habitat are designated for development to 
native mesquite, cottonwood, and willows. Between the fall of 2010 and 
spring of 2011, several management activities occurred to improve and 
enhance wildlife and riparian habitats within the NWR with over 12,000 
trees planted over 20 ha (50 ac) (Rimer 2011, p. 1).
    Previous plantings and habitat maintenance has occurred, which has 
resulted in improved flycatcher habitat conditions. At one 7 ha (17.8 
ac) field where about 7,100 one-gallon cottonwood and willow trees were 
planted in 2003, the area has shown use by migrant flycatchers and has 
continued to be maintained and monitored (Strickland 2005, pp. 2-3; 
Seese 2006, p. 1).
    Protection of existing sites through fire management and 
replacement of poor quality salt cedar to less flammable and higher 
quality native plant species is occurring as part of Cibola NWR's 
management efforts. Reducing the amount of unsuitable salt cedar and 
replacing it with native mesquite, cottonwoods, and willows, provides 
improved habitat value for flycatchers and other passerines and reduces 
the risk of wildfire. In 2006 and 2007, the NWR began to assess, plan, 
and rehabilitate riparian vegetation that burned from the lightening 
caused 2,145 ha (5,300 ac) Cibola and Walter fires (Seese 2006, p. 14).
Service--Imperial NWR
    The Imperial NWR consists of 10,168 ha (25,125 ac) (Service 1994, 
pp. 34-35) and manages for a variety of habitat types that provide 
locations for waterfowl, wading birds, passerines, and other species. 
Fifteen Management Units (totaling about 648 ha, 1,600 ac) are targeted 
for riparian obligate passerines obligate. Not all areas of these Units 
are dedicated specifically to woody riparian habitat. Flycatcher 
habitat management includes maintenance of woody riparian vegetation, 
and development and protection of habitat through methods such as 
planting, salt cedar control, and prescribed burns. The Backwater 
Riversedge Management Unit has an additional 2,270 ha (5,609 ac) of 
salt cedar, willow, remnant cottonwoods, and scattered marshes for 
flycatchers. One to five flycatcher territories were detected over 3 
years on the NWR between 1996 and 2003 (Sogge and Durst 2008) as well 
as migrating flycatchers (Macleod et al. 2008, pp. 73-76).
Bureau of Land Management--Yuma, Havasu, and Arizona Strip Resource 
Districts
    Parts of the Yuma, Havasu, and Arizona Strip BLM Districts occur 
within the LCR MSCP planning area from Lake Mead to Mexico (and the 
lower Bill Williams River). These Districts have consulted with the 
Service under section 7 of the Act on the implementation of their 
resource plans (Service 2006, pp. 12-13; 2007a, p. 15; 2009, pp. 20-
21). These plans provide the broad flycatcher conservation measures 
originating in other guidance documents such as the Recovery Plan and 
the LCR MSCP plan. The conservation measures proposed in these plans 
are similar and include tasks such as: Flycatcher surveys; monitoring; 
research; education; implementing laws, policies, and agreements; 
minimizing disturbance; habitat protection; fire management; 
maintaining and improving flycatcher nesting habitat; implementing 
small-scale habitat enhancement projects; minimizing unauthorized 
recreational impacts; and cowbird trapping (if appropriate).
National Park Service--Lake Mead National Recreation Area
    The NPS's Lake Mead National Recreation Area's Land Management Plan 
(Service 2002a, p. 6) and Fire Management Plan (Service 2004b, pp. 47-
49; 2011, p. 23) include flycatcher management goals within the LCR 
MSCP planning area. In and around Lake Mead, flycatcher habitat is 
limited to tributary inflow and the Colorado River inflow where the 
lake rises and lowers. The NPS's management strategies, first 
identified in the 2004 Fire Management Plan, include the identification 
and survey of flycatcher habitat, breeding site closures, and avoidance 
of these suitable and occupied sites from adverse impacts associated 
with fire management. Due to the remote nature of flycatcher areas and 
the limited watercraft access, recreation and fire risk is anticipated 
to be low (no fires have occurred within flycatcher habitat since 
1976). Also included is the overall strategy of riparian habitat 
protection, the seeding and management to improve habitat quality of 
sites, and control of cowbird populations.
Native American Tribes--Hualapai, Fort Mojave, Chemehuevi, Colorado 
Indian Tribes, and Quechan
Tribes--Hualapai Tribe
    The Hualapai Tribe occurs alongside the Colorado River on the south 
side of the channel in the Middle Colorado Management Unit at the upper 
most portion of the Lake Mead conservation space within the LCR MSCP 
planning area. The Tribe completed a Flycatcher Management Plan in 2005 
(Hualapai Tribe 2004, entire) and developed a 2012 update (Hualapai 
Tribe 2012, entire). The Hualapai Tribal Council has adopted the 
implementation of their Flycatcher Management Plan.
    The Hualapai's Flycatcher Management Plan's objectives are to 
preserve riparian vegetation, conduct habitat improvement activities 
with available funds, ensure that existing land uses (which presently 
include recreational activities) will not disturb

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flycatchers or reduce habitat quality, and conduct flycatcher surveys.
    The Hualapai Tribe has been implementing their Flycatcher 
Management Plan, which has the overall goal to support conservation of 
the flycatcher on Hualapai lands. Like other locations along the Middle 
and LCR, riparian habitat quality is affected by river regulation. 
While riparian habitat has been preserved within tribal lands, they 
note that recent drought combined with a decline in Lake Mead water 
level has reduced overall flycatcher habitat quality. The Tribe has 
prevented habitat degradation and flycatcher disturbance from 
recreationists and helicopter tour operators through implementation of 
signs and buffer zones. Surveys for flycatchers occurred annually from 
1997 through 2008, but no surveys have occurred since due to lack of 
funding. The Tribe will continue to seek funding to continue surveys 
and habitat improvement activities.
Tribes--Fort Mojave Tribe
    The Fort Mojave Tribe occurs within the LCR MSCP planning area 
along the Colorado River in the Hoover to Parker Management Unit above 
Lake Havasu. The Fort Mojave Tribe completed a Flycatcher Management 
Plan in 2005 (Fort Mojave Tribe 2005, entire), and modified that plan 
with a 2012 update (Fort Mojave Tribe 2012, entire). The Fort Mojave 
Tribal Council authorized and approved the implementation of the 
updated Flycatcher Management Plan and the continued management of 
lands that do or can support flycatchers.
    The Fort Mojave Indian Tribe has committed to continue riparian 
habitat protection and described portions of seven different areas of 
tribal land, totaling about 991 ha (2,448 ac), that have or could have 
flycatcher habitat. The Tribe identified the intent to continue to 
establish and developing riparian habitat improvement sites, to manage 
for native riparian plant species in appropriate locations, and to 
continue to provide wildfire response to protect riparian habitats.
    The Tribe commented in their submitted comments and updated 
Flycatcher Management Plan that implementation of their 2005 Management 
Plan was effective and since its completion, no net loss in riparian 
habitat has occurred. A 321-ha (794-ac) section of tribal land, in 
cooperation with the USBR, is specifically being managed to support 
flycatcher habitat.
Tribes--Chemehuevi Tribe
    The Chemehuevi Tribe occurs within the LCR MSCP planning area along 
the Colorado River within the Hoover to Parker Management Unit. The 
Chemehuevi Tribe completed a Flycatcher Management Plan in 2005 
(Chemehuevi Indian Tribe 2005, entire).
    The Chemehuevi Tribe committed to flycatcher conservation actions 
such as controlling wild fire, improving native plant presence through 
habitat improvement and management projects, minimizing recreational 
habitat impacts, and collaborating with the Service to improve 
flycatcher habitat conditions. The Flycatcher Management Plan addresses 
the management of tamarisk and native willow, cottonwood, and mesquite 
to maximize native plant presence. Management will be done in 
cooperative work effort with the Service to identify habitat 
improvement sites and provide early control response to wild fires that 
would result in no net loss or permanent changes detrimental to 
flycatcher or its habitat as specified by the Recovery Plan. Any 
permanent river or lakeshore land use changes, such as recreational or 
other developments, will take flycatcher habitat into account and will 
be done in mutual consultation with the Service so as to design plans 
that minimize detrimental impacts to habitat requirements. Their 
Flycatcher Management Plan identifies continued cooperation between the 
Tribe and Service to ensure continued management of or to improve 
habitat conditions. Continued monitoring of habitat and flycatchers and 
long-term management of native plants (e.g., cottonwood, mesquite, and 
willow), within funding constraints, will result in no net habitat loss 
or permanent habitat modification and will avoid detrimental impacts to 
the flycatcher as specified in the Recovery Plan.
Tribes--Colorado River Indian Tribe (CRIT)
    The CRIT occurs within the LCR MSCP planning area along the 
Colorado River within the Parker to Southerly International Border 
Management Unit. The CRIT completed a 2005 Flycatcher Management Plan 
(CRIT 2005, entire) and produced a draft 2012 update (CRIT 2012, 
entire).
    The CRIT's Flycatcher Management Plan describes a collection of 
flycatcher management tasks. CRIT biologists have attended flycatcher 
survey training and expect to assess habitat quality, conduct breeding 
bird surveys and identify and protect flycatcher migration habitat. 
Migration habitat will be managed through fire restrictions, fire 
suppression, restrictions on the use of gasoline-powered boats in 
sensitive backwater areas, limitations on grazing, and campsite 
placement.
    The Flycatcher Management Plan identifies the continued management 
of the Ahakhav Tribal Preserve, a 546-ha (1,350-ac) area of riparian 
vegetation. This Preserve was established in 1995 and is managed to 
conserve the CRITs biological and cultural resources, promote 
environmental education, and provide recreational opportunities for the 
tribal community and general public. The Ahakhav Tribal Preserve 
possesses the highest potential for eventual colonization by nesting 
flycatchers. The Tribe is actively converting tamarisk-dominated 
vegetation within the Preserve to combinations of cottonwood, willow, 
and mesquite.
Tribes--Quechan (Fort Yuma) Indian Tribe
    The Quechan Tribe occurs within the LCR MSCP planning area along 
the Colorado River within the Parker to Southerly International Border 
Management Unit. The Quechan Tribe completed a Flycatcher Management 
Plan in 2005 (Quechan Tribe 2005, entire).
    The Quechan Tribe will manage riparian saltcedar that is intermixed 
with cottonwood, willow, mesquite, and arrowweed to maximize potential 
value for nesting flycatchers. Any permanent land use changes for 
recreation or other reasons will consider the biological needs of the 
flycatcher and support flycatcher conservation needs as long as 
consistent with tribal cultural and economic needs. The Tribe will 
consult with the Service to develop and design plans that minimize 
impacts to flycatcher habitat. The intent of these measures is to 
ensure no net loss of flycatcher habitat.
Benefits of Inclusion--Lower Colorado River Multi-Species Conservation 
Plan
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The streams being evaluated within the LCR MSCP planning area are 
known to be occupied by flycatchers and have undergone section 7 
consultation under the jeopardy standard related to the LCR

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MSCP. There may be some minor benefits by the designation of critical 
habitat along the length of the LCR for land management actions because 
of the additional review required by federal actions; most likely those 
occurring on Service NWRs, BLM, and NPS land (the most prominent 
Federal land managers within the action area). The flycatcher is well 
known as a listed species using the LCR for migration and for nesting. 
Because these Federal agencies manage open space for public use and 
wildlife, the types of actions evaluated would mostly be associated 
with recreation, habitat management, and public access, and possibly 
some land resource use.
    The benefits of flycatcher critical habitat designation on lands 
managed by Federal partners within the LCR MSCP planning area are 
limited. USBR manages lower Colorado River water storage, river 
regulation, and channel maintenance such that the river stays within 
its incised channel and can no longer flow onto the adjacent 
floodplain. As a result of the ``Law of The River,'' USBR has no 
discretion to change these water management actions to allow a better 
functioning stream to improve the riparian forest. Improving the 
duration, magnitude, and timing of river flow would generate overbank 
flooding, create and recycle riparian habitat, and, therefore, improve 
the quality and abundance of flycatcher habitat. Because of the lack of 
flooding and the prevention of overbank flows, the floodplain can no 
longer support the pre-dam riparian forest. While land managers (BLM, 
NPS, and Service NWRs) along the LCR floodplain do exercise 
discretionary actions on their lands, the success of their conservation 
actions and impacts of other actions to restore pre-dam riparian 
forests are limited by the impacts of water management. Overall, the 
riparian forest and flycatcher habitat managed by these land management 
agencies are not expected to be harmed further by site-specific land 
management actions because the quality of vegetation has already been 
degraded. To the extent that remaining patches of riparian habitat and 
flycatcher habitat continue to exist, they are of great value for 
flycatcher conservation. As a result, past section 7 consultations on 
land management agency actions within the proposed critical habitat 
along the LCR show that land management agencies conserve existing 
riparian vegetation and explore innovative strategies outside of the 
restrictions on water management to improve vegetation quality that 
could be used by flycatchers. Because the regulated stream flow has 
caused habitat degradation and the ``Law of The River'' prevents any 
change in water management that can improve the riparian forest, land 
management agencies are unable to impact these river flow conditions, 
nor are they able to impact river flow conditions through non-
discretionary mandatory reasonable and prudent measures or alternatives 
resulting from any possible future section 7 consultation.
    We also believe there would be few additional benefits would be 
derived from including the five tribes within the LCR MSCP planning 
area as flycatcher critical habitat, beyond what will be achieved 
through the implementation of their management plans. The principal 
benefit of any designated critical habitat is that activities in and 
affecting such habitat require consultation under section 7 of the Act. 
Such consultation would ensure that adequate protection is provided to 
avoid destruction or adverse modification of critical habitat. No 
different than our description above, we expect that the degraded 
environmental baseline caused by water storage, river regulation, and 
channel maintenance would cause similar evaluations and conclusions in 
section 7 consultations on tribal lands within the LCR MSCP planning 
area. However, our consultation history to date shows that other than 
development of the LCR MSCP and accompanying section 7 consultation, no 
formal consultations with the BIA or other agencies on flycatchers or 
its habitat have occurred on tribal lands within the LCR MSCP planning 
area. Additionally, because these tribes are also implementing their 
Flycatcher Management Plans that preserves existing habitat, similarly 
within the limitations caused by regulation of the Colorado River, 
there are likely few regulatory benefits to be gained from a 
designation of flycatcher critical habitat.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and information 
benefit or conservation from reinforcing other environmental laws and 
regulations gained from including the LCR MSCP planning area within the 
flycatcher critical habitat designation, because this is a well-known 
flycatcher management and recovery area. Through the development and 
implementation of the LCR MSCP, the development and completion of the 
Recovery Plan, the 2005 flycatcher critical habitat proposal, the 
development of land management plans, and the creation of flycatcher 
specific tribal management plans, the value of the LCR and riparian 
habitat for the flycatcher is well established. Consequently, we 
believe that the informational benefits have already occurred through 
past actions even though the LCR MSCP planning area is not designated 
as critical habitat. The importance of the LCR MSCP planning area for 
flycatcher conservation and to meet conservation goals established for 
the LCR Recovery and Management Units is well understood by managing 
agencies, Native American tribes, private industry, and public, State, 
and local governments.
    The conservation and enhancement of riparian habitat is a primary 
land management target of the LCR MSCP partners, land management 
agencies, and tribal governments along the LCR MSCP planning area 
because of the previous and long-term impacts attributed to LCR 
regulation. These land management agencies and LCR MSCP partners 
represent a large proportion of the land ownership and management 
within the LCR MSCP planning area and land surrounding the Colorado 
River. Additionally, water delivery to western States is one of the 
uses of the Colorado River, and those providers are LCR MSCP partners. 
As a result, of the broad land ownership along and surrounding the 
Colorado River, and water delivery interests, each of these entities is 
well aware of the importance of the LCR for the flycatcher, the 
importance of maintaining water quality, and the challenges to improve 
riparian habitat as a result of river regulation, and therefore the 
educational benefit and support of other laws and regulations is 
minimized. For the reasons described above and more specifically, 
because formal section 7 consultations will likely result in only 
discretionary conservation recommendations due to existing management 
efforts, we believe there is a low probability of mandatory elements 
arising from formal section 7 consultations. Therefore, we find the

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section 7 consultation process for a designation of critical habitat is 
unlikely to result in additional protections for the flycatcher on 
lands within the LCR MSCP planning area (which includes NPS, Service, 
BLM, tribal lands, and non-Federal lands).
Benefits of Exclusion--Lower Colorado River Multi-Species Conservation 
Plan
    The benefits of excluding the LCR from the Lake Mead high water 
mark to Mexico (including a small portion of the lower Bill Williams 
River in Arizona) from being designated as critical habitat are 
considerable, and include the conservation measures described above 
(land acquisition, management, and development) and those associated 
with implementing conservation through enhancing and developing 
partnerships.
    A small benefit of excluding the LCR from critical habitat includes 
some reduction in administrative costs associated with engaging in the 
critical habitat portion of section 7 consultations. Administrative 
costs include time spent in meetings, preparing letters and biological 
assessments, and in the case of formal consultations, the development 
of the critical habitat component of a biological opinion. However we 
anticipate that the costs to perform the additional critical habitat 
and associated adverse modification analysis would not be significant.
    The exclusion of the LCR from critical habitat as a result of the 
LCR MSCP can help facilitate other cooperative conservation activities 
with other similarly situated dam operators or landowners. Continued 
cooperative relations with the three States and a myriad of 
stakeholders is expected to influence other future partners and lead to 
greater conservation than would be achieved through multiple site-by-
site, project-by-project efforts, and associated section 7 
consultations. With the current degraded condition of the environmental 
baseline and limitations associated with changes to dam operations, the 
commitment to develop and manage over 1,600 ha (4,000 ac) of flycatcher 
habitat is significant. The benefits of excluding lands within the LCR 
MSCP plan area from critical habitat designation include recognizing 
the value of conservation benefits associated with these HCP actions; 
encouraging actions that benefit multiple species; encouraging local 
participation in development of new HCPs; and facilitating the 
cooperative activities provided by the Service to landowners, 
communities, and counties in return for their voluntary adoption of the 
HCP.
    The LCR MSCP will help generate important status and trend 
information for flycatcher recovery. In addition to specific flycatcher 
conservation actions, the development and implementation of this HCP 
provides regular monitoring of flycatcher habitat, distribution, and 
abundance over the 50-year permit.
    Failure to exclude the LCR MSCP planning area could be a 
disincentive for other entities contemplating partnerships as it would 
be perceived as a way for the Service to impose additional regulatory 
burdens once conservation strategies have already been agreed to. 
Private entities are motivated to work with the Service collaboratively 
to develop voluntary HCPs because of the regulatory certainty provided 
by an incidental take permit under section 10(a)(1)(B) of the Act with 
the No Surprises Assurances. This collaboration often provides greater 
conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It has taken 
considerable time and effort to establish this foundation of mutual 
trust and understanding, which is one reason it often takes several 
years to develop a successful HCP. Excluding this area from critical 
habitat would help promote and honor that trust by providing greater 
certainty for permittees that once appropriate conservation measures 
have been agreed to and consulted on for listed and sensitive species 
additional consultation will not be necessary.
    HCP permittees and stakeholders submitted comments that they view 
critical habitat designation along the LCR as unwarranted and an 
unwelcome intrusion to river operations, and an erosion of the 
regulatory certainty that is provided by their incidental take permit 
and the No Surprises assurances. Additionally, the LCR MSCP partners 
and stakeholders sent comments of support for exclusion of all the LCR 
MSCP partners within the planning area, specifically Service NWRs 
because they were not initially identified as locations we were 
considering for exclusion. Having applicants understand the Service's 
commitment will encourage continued partnerships with these permittees 
that could result in additional conservation plans or additional lands 
enrolled in HCPs.
    Our collaborative relationships with the LCR MSCP permittees 
clearly make a difference in our partnership with the numerous 
stakeholders involved and influence our ability to form partnerships 
with others. Concerns over perceived added regulation potentially 
imposed by critical habitat harms this collaborative relationship by 
leading to distrust. Our experience has demonstrated that successful 
completion of one HCP has resulted in the development of other 
conservation efforts and HCPs with other landowners. Partners 
associated with the LCR MSCP also established HCPs with the Service in 
central Arizona.
    There are additional considerable benefits from excluding the five 
tribes along the LCR, and other than landowners and partners within the 
LCR MSCP planning area. The benefits of excluding tribal Lands from 
designated critical habitat specifically include the advancement of our 
Federal Indian Trust obligations and our deference to tribes to develop 
and implement tribal conservation and natural resource management plans 
for their lands and resources, which includes the flycatcher. Benefits 
associated with excluding tribes and other land owners and managers 
also include: (1) The maintenance of effective working relationships to 
promote the conservation of the flycatcher and its habitat; (2) the 
allowance for continued meaningful collaboration and cooperation; (3) 
the provision of conservation benefits to riparian ecosystems and the 
flycatcher and its habitat that might not otherwise occur; and (4) the 
reduction or elimination of administrative and/or project modification 
costs as analyzed in the economic analysis.
    During the development of the 2011 flycatcher critical habitat 
proposal, our previous 2005 flycatcher critical habitat proposal, and 
other previous efforts such as development of the Recovery Plan, we 
have met and communicated in other ways with tribes to discuss how they 
might be affected by the regulations associated with flycatcher 
management, flycatcher recovery, and the designation of critical 
habitat. As such, we established relationships specific to flycatcher 
conservation. As part of our relationship, we provided technical 
assistance to each of these tribes to develop measures to conserve the 
flycatcher and its habitat on their lands. These measures are contained 
within the management and conservation plans that we have in our 
supporting record for this decision (see discussion above). These 
proactive actions were conducted in accordance with Secretarial Order 
3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the 
relevant provision of the Departmental Manual of the Department

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of the Interior (512 DM 2); and Secretarial Order 3317, ``Department of 
Interior Policy on Consultation with Indian Tribes'' (December 1, 
2011). We believe that these tribes should be the governmental entities 
to manage and promote flycatcher conservation on their lands. During 
our communication with these tribes, we recognized and endorsed their 
fundamental right to provide for tribal resource management activities, 
including those relating to riparian ecosystems.
    The benefits of excluding this HCP from critical habitat 
designation include relieving Federal agencies, State agencies, 
landowners, tribes, communities, and counties of any additional 
regulatory burden for water management actions that might be imposed by 
critical habitat. The LCR MSCP took many years to develop and, upon 
completion, became a river long conservation plan that is consistent 
with the flycatcher recovery objectives within the planning area. This 
HCP provides flycatcher conservation benefits and commitments toward 
habitat development and management, and flycatcher surveys and studies 
that could not be achieved through project-by-project section 7 
consultations. Imposing an additional regulatory review after the HCP 
is completed, solely as a result of the designation of critical 
habitat, may undermine conservation efforts and partnerships in many 
areas. In fact, it could result in the loss of species' benefits if 
future participants abandon the voluntary HCP process. Designation of 
critical habitat along the LCR could be viewed as a disincentive to 
those entities currently developing HCPs or contemplating them in the 
future.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Lower 
Colorado River Multi-Species Conservation Plan
    We have determined that the benefits of excluding the LCR MSCP 
planning area along the LCR within the States of Arizona, California, 
and Nevada from the conservation space of Lake Mead to Mexico (and a 
small portion of the lower Bill Williams River in Arizona) from the 
designation of flycatcher critical habitat on all Federal, State, 
tribal, and non-Federal lands outweigh the benefits of inclusion, and 
will not result in extinction of the flycatcher.
    Under section 7 of the Act, critical habitat designation will 
provide little additional benefit to the flycatcher within the 
boundaries of the LCR MSCP. The catalyst for the LCR MSCP was largely a 
result of the jeopardy biological opinion (Service 1997, entire) for 
the flycatcher to the USBR for its LCR operations. The Law of the 
River, which protects the regulation and delivery of Colorado River 
water to the western United States, prevents altering the regulation of 
the Colorado River for the benefit of a more naturally functioning 
system, which can create and recycle flycatcher habitat. As a result, 
the development of the LCR MSCP and its Implementing Agreement are 
designed to ensure flycatcher conservation within the planning area and 
includes management measures to protect, restore, enhance, manage, and 
monitor flycatcher habitat (along the Colorado River and at mitigation 
sites). The adequacy of LCR MSCP conservation measures to protect the 
flycatcher and its habitat have undergone evaluation under section 7 
consultation under the Act, including proposed critical habitat in 2005 
prior to approval of the plan, reaching a non-jeopardy and no adverse 
modification conclusion. Therefore, the benefit of including the LCR 
MSCP planning area to require section 7 consultation for critical 
habitat is minimized.
    The commitment by the LCR MSCP partners to flycatcher conservation 
throughout the Lake Mead to Mexico planning area (and a portion of the 
lower Bill Williams River) is considerable. The LCR MSCP commits to 
developing, managing, and protecting 1,639 ha (4,050 ac) of flycatcher 
nesting habitat within the boundaries of their planning area. As 
described above, much of these habitats are expected to occur within 
agricultural fields adjacent to river. The culmination of these efforts 
is anticipated to surpass goals recommended in the Recovery Plan; 
maintain, develop and improve migration, dispersal, sheltering, and 
foraging habitat; develop metapopulation stability; and protect against 
catastrophic losses.
    Additional riparian habitat along the river that can be used by 
flycatchers, mostly as migratory habitat and also as nesting habitat, 
occurring across thousands of hectares (acres), will collectively be 
restored, managed, and maintained on NWRs (Havasu, Cibola, Imperial, 
and Bill Williams River), Federal lands (NPS and BLM), and tribal lands 
(Hualapai, Colorado River, Chemehuevi, Fort Mojave, and Quechan--Fort 
Yuma) along the LCR within the area covered by the LCR MSCP.
    This HCP involved public participation through public notices and 
comment periods associated with the NEPA process prior to being 
approved. Additionally, this HCP is one of the largest HCPs in the 
country, with an extensive list of stakeholders and permittees from 
California, Arizona, and Nevada that took about a decade to complete. 
Therefore, managing agencies, States, counties, cities, and other 
stakeholders are aware of the importance of the LCR for the flycatcher. 
For these reasons, we believe that designation of critical habitat 
along the LCR MSCP planning area would provide little additional 
educational benefit or benefit from other laws and regulations.
    Covered activities under the LCR MSCP are not the only possible 
impacts to flycatcher habitat along the LCR. There are continued 
projects developed, carried out, funded, and permitted by Federal 
agencies such as USBR and BLM that are not covered by the LCR MSCP. 
Fire management, habitat restoration, recreation, and other activities 
have the ability to adversely affect the flycatcher and critical 
habitat. Minor changes in habitat restoration, fire management, and 
recreation could occur as result of a critical habitat designation in 
the form of additional discretionary conservation recommendations to 
reduce impacts to critical habitat. Therefore, if the LCR was 
designated as critical habitat, there may be some benefit through 
consultation under the adverse modification standard for actions not 
covered by the LCR MSCP. But, as explained above, the habitat along the 
LCR is so degraded that it is unlikely that a section 7 consultation 
under an adverse modification standard would result in mandatory 
elements (i.e., reasonable and prudent alternatives) within the LCR 
MSCP planning area.
    In reaching the conclusion that benefits of exclusion of the LCR 
MSCP planning area outweigh the benefits of inclusion as flycatcher 
critical habitat, we have weighed the benefits of including these lands 
as critical habitat with an operative HCP and management by NWRs, 
tribal Lands, and others, and without critical habitat. Implementation 
of flycatcher conservation included within the LCR MSCP planning area, 
combined with the conservation efforts of other land managers, is 
anticipated to result in over 1,639 ha (4,050 ac) of flycatcher 
habitat. Excluding the LCR within the LCR MSCP planning area would 
eliminate some small additional administrative effort and cost during 
the consultation process pursuant to section 7 of the Act. Excluding 
the LCR MSCP planning area would continue to help foster development of 
future HCPs and strengthen our relationship with Arizona, California, 
and Nevada permittees and stakeholders, eliminating regulatory 
uncertainty associated with permittees and

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stakeholders. Excluding the LCR MSCP planning area eliminates any 
possible risk to water storage, delivery, diversion and hydroelectric 
production to Arizona, California, and Nevada, and therefore 
significant potential economic costs due to a critical habitat 
designation. We have therefore concluded that the benefits to the 
flycatcher and its habitat as result of the improvement, maintenance, 
and management activities attributed to the LCR MSCP, and those 
additional efforts conducted by NWRs, tribes, and other land managers, 
outweigh those that would result from the addition of a critical 
habitat designation. We have therefore excluded these lands from the 
final critical habitat designation pursuant to section 4(b)(2) of the 
Act.
Exclusion Will Not Result in Extinction of the Species--Lower Colorado 
River Multi-Species Conservation Plan
    Exclusion of the Colorado River within the LCR MSCP planning area 
will not result in extinction of the flycatcher. The amount of land 
being established as result of implementing the LCR MSCP, combined with 
management by other land managers, is anticipated to be able to reach 
recovery goals established for these LCR Management Units. The 
Implementation Agreement establishes a 50-year commitment to accomplish 
these tasks. Overall, we expect greater flycatcher conservation through 
these commitments than through project-by-project evaluation 
implemented through a critical habitat designation. As a result of the 
commitment toward flycatcher conservation, we do not expect that 
exclusion will result in extinction of the flycatcher.
Pahranagat Management Unit
Key Pittman State Wildlife Area Management Plan
    Key Pittman Wildlife Management Area (Key Pittman) is located in 
Pahranagat Valley in Lincoln County, Nevada, and encompasses 539 ha 
(1,332 ac) of diverse habitats. The entirety of the water in Key 
Pittman originates at Hiko Springs and is delivered to Frenchy Lake, 
Nesbitt Lake, impoundments, and irrigated fields via pipes and ditches. 
The majority of Pahranagat Valley is in private ownership with modified 
systems of springs, outflow ditches, agricultural fields, ponds, and 
urban development. We proposed 3.9 km (2.5 mi) of area occurring in Key 
Pittman as critical habitat.
    The NDOW owns and manages Key Pittman. The Nevada Fish and Game 
Commission purchased portions of the area in 1962 and 1966, using 
Federal Aid in Wildlife and Sport Fish Restoration Act funds, primarily 
for waterfowl hunting, and as a secondary goal, to improve habitat for 
waterfowl and other wetland species. Pursuant to Federal Aid 
regulations, the property must continue to serve the purpose for which 
it was purchased (16 U.S.C. 669-669i; 50 Stat. 917).
    The NDOW first conducted flycatcher surveys at Key Pittman in 1999. 
and observed the successful nesting of two pairs of flycatchers. At 
that time, approximately 0.57 ha (1.4 ac) of suitable coyote willow 
habitat existed. Over the last decade, the vegetation has matured and 
now provides 1.4 ha (3.6 ac) of suitable habitat consisting of 15 small 
stands of coyote willow patches surrounded by dry upland scrub and 
bulrush marsh along the western edge of Nesbitt Lake.
    A management plan for Key Pittman, which included strategies for 
managing flycatcher habitat, was completed in April 2005, to provide a 
framework for implementing management actions for the next 10 years 
(NDOW 2005, entire). Specific strategies identified in the plan to 
maintain and enhance riparian systems to benefit the flycatcher and 
other neotropical migratory birds include: (1) Fencing of willow 
habitat patches along Nesbitt Lake; (2) maintenance of high water 
levels at Nesbitt Lake from April 15 through August 1 to inundate the 
flycatcher habitat and to encourage the establishment of willows; (3) 
commitment to monitor the population status of the flycatcher at Key 
Pittman; and (4) planting of cottonwood, coyote willow, and ash 
throughout Key Pittman.
    This management plan has been effectively implemented to improve 
flycatcher habitat at Key Pittman. In 2008, NDOW completed fencing to 
exclude livestock grazing from the coyote willow patches along the west 
side of Nesbitt Lake, and currently maintains the fence annually. Since 
the fencing was completed, monitoring of the willows has shown an 
increase in health, vigor, and expansion of the patches.
    NDOW implements a water management plan that typically inundates 
the willow patches with water from the lake in mid-April to ensure 
habitat conditions are suitable for breeding flycatchers. As water is 
slowly lowered from the lake throughout the breeding season, the water 
recedes 20 to 30 m from the willow patches, leaving moist soil by the 
end of June or July.
    Annual flycatcher surveys at Key Pittman continue to be coordinated 
by NDOW through the Endangered Species Act Traditional Section 6 Funds 
Program. A total of 11 to 18 flycatcher territories per year have been 
documented at Key Pittman from 2007 to 2011, a large increase from the 
2 pairs documented in 1999. Flycatcher territories at Key Pittman are 
important for the recovery of the species as they account for 
approximately half of the total number of known territories throughout 
the Pahranagat Management Unit.
    Although active plantings have not yet been completed, NDOW may 
plan future habitat enhancement projects dependent on funding 
opportunities. NDOW has successfully managed to increase the health of 
existing willow patches, which has encouraged the recruitment of 
willows. As previously described, NDOW has enhanced existing willows 
with the completion of their fencing project.
Benefits of Inclusion--Key Pittman State Wildlife Area
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The stream within the Key Pittman Wildlife Area being addressed is 
known to be occupied by flycatchers and has been evaluated under 
section 7 of the Act related to the receipt of Federal funding toward 
land management. We believe there is minimal benefit from designating 
critical habitat for the flycatcher at Key Pittman. As previously 
discussed, the principal benefit of designated critical habitat is that 
activities affecting that habitat require consultation under section 7 
of the Act if a Federal action is involved. Such consultation would 
ensure adequate protection is provided to avoid destruction or adverse 
modification of critical habitat. Annually, NDOW consults with the 
Service regarding the distribution of federal funds to NDOW under the 
Wildlife and Sport Fish Restoration Program and Endangered Species Act 
Traditional Section 6 Funds Program. During these consultations, NDOW 
coordinates with the Service to incorporate conservation measures to

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protect flycatcher habitat at Key Pittman and to ensure population 
status monitoring continues. Beyond these consultations, NDOW has not 
initiated any section 7 consultations or implemented any projects that 
may negatively affect flycatchers or their habitat at Key Pittman. 
Based on the limited consultation history, and land management 
commitments to support flycatcher habitat, any additional benefit 
afforded to flycatcher habitat from consulting on designated critical 
habitat at Key Pittman is negligible.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    The Service and NDOW are familiar with the flycatcher within Key 
Pittman. The Service and NDOW have addressed the flycatcher in prior 
section 7 consultations for Federal Aid toward funding for Key Pittman 
management actions. NDOW conducts flycatcher surveys within Key Pittman 
and addressed the flycatcher and protecting and improving its habitat 
within their Management Plan. Because of the overall conservation 
awareness and implementation of conservation actions associated with 
the Key Pittman management plan, we believe there is little educational 
benefit or support for other laws and regulations attributable to 
critical habitat beyond those benefits already achieved from listing 
the flycatcher under the Act.
Benefits of Exclusion--Key Pittman State Wildlife Area
    A considerable benefit from excluding Key Pittman as flycatcher 
critical habitat is the maintenance and strengthening of ongoing 
conservation partnerships. In addition to the effort for Key Pittman, 
NDOW has a significant partnership role by developing and implementing 
flycatcher management guidance, conducting project assessment, 
implementing recovery strategies, conducting flycatcher surveys and 
research, managing property, and working with private landowners 
towards wildlife conservation. The NDOW has demonstrated a willingness 
to develop, maintain, and manage Key Pittman flycatcher habitat, as 
well as habitat for other sensitive and non-listed species.
    The success of NDOW's Key Pittman management of habitat protection 
and development has resulted in flycatcher habitat protection, an 
increase in territories, and a large portion of the known territories 
within the Pahranagat Management Unit. NDOW has also effectively 
partnered with private landowners in the Pahranagat Valley. These 
positive partnerships between private, State, and Federal organizations 
will encourage conservation practices for flycatcher habitat across 
land management boundaries. Exclusion of this area from the designation 
will maintain and strengthen the partnership between the Service and 
the NDOW and further flycatcher conservation efforts.
    Our collaborative relationship with NDOW makes a difference in our 
partnership with the numerous stakeholders involved with flycatcher 
management and recovery and also influences our ability to form 
partnerships with others. Concerns over perceived added regulation 
potentially imposed by critical habitat could harm this collaborative 
relationship.
    The benefits of excluding Key Pittman include some minimal 
reduction in administrative costs associated with engaging in section 7 
consultations for critical habitat where NDOW may receive Federal 
funding. Administrative costs include additional time spent in meetings 
and preparing letters, and in the case of biological assessments and 
informal and formal consultations, the development of those portions of 
these documents that specifically address the critical habitat 
designation. The NDOW and FWS staff can, more appropriately, use these 
limited funds toward continuing to manage and improve NDOW lands for 
their stated purpose: wildlife conservation.
    Because so many important flycatcher areas occur on lands managed 
by non-Federal entities, collaborative relationships are essential for 
flycatcher recovery. The flycatcher and its habitat are expected to 
benefit substantially from voluntary land management actions that 
implement appropriate and effective conservation strategies. The 
conservation benefits of critical habitat are primarily regulatory or 
prohibitive in nature. Where consistent with the discretion provided by 
the Act, the Service believes it is necessary to implement policies 
that provide positive incentives to non-Federal landowners and land 
managers to voluntarily conserve natural resources and to remove or 
reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-14; 
Bean 2002, p. 2). Thus, we believe it is vital for flycatcher recovery 
to build on continued conservation activities such as these with a 
proven partner, and to provide positive incentives for other non-
Federal land managers who might be considering implementing voluntary 
conservation activities but have concerns about incurring incidental 
regulatory, administrative, or economic impacts. Flycatcher habitat 
conservation at Key Pittman is established through planning documents, 
has a long record of success, and resulted in successful flycatcher 
breeding sites.
Benefits of Exclusion Outweigh Benefits of Inclusion--Key Pittman State 
Wildlife Area
    We have determined that the benefits of exclusion of all Key 
Pittman lands within the Pahranagat Management Unit, which include the 
3.9 km (2.5 km) stream segment beginning at Hiko Springs that travels 
down through Frenchy and Nesbitt Lakes outweigh the benefits of 
inclusion and will not result in extinction of the flycatcher. In 
making this exclusion, we have weighed the benefits of including these 
lands as critical habitat and the benefits without critical habitat.
    The benefits of designating critical habitat for the flycatcher 
within Key Pittman are relatively small in comparison to the benefits 
of exclusion. We find that including this stream segment as critical 
habitat would result in minimal, if any additional benefits to the 
flycatcher. Because any potential impacts to flycatcher habitat from 
future projects with a Federal nexus will be addressed through a 
section 7 consultation with the Service under the jeopardy standard, we 
believe that the incremental conservation and regulatory benefit of 
designated critical habitat on Key Pittman would largely be redundant 
with the combined benefits of listing and existing management. We 
believe past, present, and future coordination with NDOW has provided 
and will continue to provide sufficient education regarding flycatcher 
habitat conservation needs on these lands, such that there would be 
minimal additional educational benefit or support from other laws and 
regulations from designation of critical habitat. Therefore, the 
incremental conservation and regulatory benefits of designating 
critical habitat within Key Pittman are minimal.

[[Page 420]]

    Because Key Pittman is a State-managed wildlife area, it is not 
expected that land use changes would occur that would alter the 
preservation of these lands. NDOW has provided assurance through 
conservation actions and consultations that the habitat at Key Pittman 
will be protected and enhanced. As previously described, NDOW's 
existing management plan has effectively guided the implementation of 
projects to ensure the protection of key flycatcher habitat at Key 
Pittman. NDOW strategies to protect and improve flycatcher habitat have 
resulted in an increase in the abundance of territories at Key Pittman 
since exclusion from critical habitat designation in 2005. Also, 
commitments through NDOW's implementation of their Key Pittman 
Management Plan will continue to foster the maintenance, development, 
and survey of flycatcher habitat. Also, because the flycatcher occurs 
on these lands with these management actions and conservation in place, 
we anticipate that any formal section 7 consultations conducted on 
critical habitat would only likely result in discretionary conservation 
recommendations.
    The benefits of excluding Key Pittman from critical habitat are 
considerable. Key Pittman management, in cooperation and coordination 
with the Service, are based on appropriate land and water management 
strategies described in the Recovery Plan. These land and water 
management strategies of protecting and improving flycatcher and 
wildlife habitat within Key Pittman demonstrate an ongoing management 
commitment. Exclusion of these lands from critical habitat will help 
preserve and strengthen the conservation partnership we have developed 
with NDOW, reinforce those we are building with other entities, and 
foster future partnerships and development of management plans. In 
contrast, inclusion as critical habitat may negatively impact our 
relationships with NDOW and other existing or future partners. We are 
committed to working with NDOW to further flycatcher conservation and 
other endangered and threatened species. Therefore, in consideration of 
the relevant impact to our partnership and NDOW's ongoing conservation 
management practices, we determine that the considerable benefits of 
exclusion outweigh the benefits of inclusion in the critical habitat 
designation.
    After weighing the benefits of including the 3.9-km (2.5-mi) stream 
segment within Key Pittman as flycatcher critical habitat against the 
benefit of exclusion, we have concluded that the benefits of excluding 
this stream segment under the NDOW management pursuant to section 
4(b)(2) of the Act outweigh any benefits that would result from 
designating these areas as critical habitat.
Exclusion Will Not Result in Extinction of the Species--Key Pittman 
State Wildlife Area
    We find that the exclusion of this stream segment within Key 
Pittman will not lead to the extinction of the flycatcher. Flycatcher 
habitat protection and recovery is supported due to NDOW's long-term 
management of Key Pittman. NDOW has a long track record of Key Pittman 
management that has resulted in an increase in flycatcher territories. 
Additionally, the long-term protection of flycatcher habitat at Key 
Pittman is supported because the landscape will be preserved as open 
space due to its inclusion within a Wildlife Area. As a result of these 
conservation and management actions, exclusion of streams with Key 
Pittman will not result in extinction of the flycatcher.
Overton State Wildlife Area (Muddy River) Management Plan
    The Overton Wildlife Management Area (OWMA) is located in Clark 
County, Nevada, and is managed by the State of Nevada's Department of 
Wildlife (NDOW). Stretches of both the Muddy River and Virgin River run 
through OWMA. OWMA encompasses a wide diversity of habitats within its 
7,146 ha (17,657 ac). Approximately 20 percent of lands comprising OWMA 
are owned by the State of Nevada, and 80 percent are lands leased from 
BOR and NPS. Funding for the operation and maintenance of OWMA results 
primarily (74 percent) from Federal Aid in Wildlife Restoration Act 
funds with an additional 25 percent funded by the State, and 1 percent 
funded by Federal Aid in Sport Fish Restoration Act funds. Pursuant to 
Federal Aid regulations, the property must continue to serve the 
purpose for which it is funded, in this case for waterfowl as well as 
other wetland species (16 U.S.C. 669-669i; 50 Stat. 917).
    Within the OWMA, we identified segments of both the Muddy River 
(3.1 km, 1.9 mi) included the Pahranagat Management Unit and Virgin 
River (6.5 km, 4.0 mi) included in the Virgin Management Unit as 
proposed critical habitat and segments we were considering for 
exclusion. Following our analysis, we concluded that we would not 
exclude the Virgin River segment under section 4(b)(2) of the Act (see 
Summary of Issues and Recommendations section).
    The Muddy River area of OWMA is managed in part for intensive 
development, agriculture, and wildlife. Water from the Muddy River is 
controlled on the north side of OWMA by a diversion structure that 
releases water through a channel to ditches that distribute water to 
fields. Regular maintenance is conducted to keep the channel clear of 
silt and debris in order to reduce water from backing up above OWMA 
during flood events. Water management on the Muddy River side of OWMA 
is guided by a plan that is adjusted each year based on projected water 
supplies and is highly controlled by Lake Mead water levels as managed 
by BOR.
    Occupied breeding flycatcher habitat on the Muddy River side of 
OWMA occurs primarily within a 200-meter (660-ft) span of the main 
channel of the Muddy River and consists of mixed tamarisk and willow 
habitat. Prior to 2005, limited surveys for flycatchers were conducted. 
From 2005 to 2011, 4 to 7 flycatcher territories per year have been 
documented in these riparian areas.
    An OWMA management plan, which included strategies for managing 
flycatcher habitat, was completed in December 2000, to provide a 
framework for implementing management actions for the next 10 years 
(Nevada Department of Conservation and Wildlife Resources, 2000, 
entire). This plan is targeted for revision in the near future. 
Specific strategies identified in the plan to maintain and enhance 
riparian systems to benefit the flycatcher and other neotropical 
migratory birds at OWMA include: (1) Selecting sites with dependable 
water sources to plant a minimum of one willow patch per year at least 
0.10 ha (0.25 ac) in size; establish native black and coyote willow in 
patches and inundate them at 2 to 3 week intervals; and (2) use 
volunteer groups of native riparian and upland riparian species to 
establish plantings.
    Between 2000 and 2002, willow plantings were implemented along 
several ponds and fields on the Muddy River side of OWMA. Two of the 
three plantings were impacted due to beavers, but one planting survived 
and currently provides migratory habitat for flycatchers. An additional 
2 acres of willows were established around various ponds and are 
flooded periodically throughout the growing season. Future sites will 
be considered for plantings and seeding as water delivery systems are 
improved and funding opportunities become available.
    During the flycatcher breeding season in 2005, NDOW bulldozed a 
0.30-ha

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(0.74-ac) area along the Muddy River to repair damage to a water 
control system caused by floods occurring in the winter of 2004 to 
2005. This work occurred mostly in occupied flycatcher habitat, where 
one known territory was located. Additional repair work was implemented 
over the winter of 2007 to 2008, and involved using heavy equipment to 
dredge two stretches of the channel of the Muddy River. This resulted 
in the removal of a 10-to 15-m (30-to 50-ft) swath of vegetation along 
a 0.75-km (0.47-mi) long stretch of the western bank of the river. 
Although not completed during the breeding season, the dredging ended 
upstream within 10 m (30 ft) of a nest area that had been active from 
2005 to 2007, and then resumed downstream within 5 m (16 ft) of another 
nest.
    Since the winter 2007 to 2008 repair work, NDOW has worked closely 
with the Service through section 7 consultations to develop 
conservation measures to ensure future operations and maintenance 
activities along the Muddy River of OWMA do not negatively impact 
occupied flycatcher habitat. NDOW also intends to incorporate these 
conservation measures in future revisions of the OWMA management plan.
Benefits of Inclusion--Overton State Wildlife Area
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The stream within the OWMA being addressed is known to be occupied 
by flycatchers and has been evaluated under section 7 of the Act 
related to the receipt of Federal funding toward land management. We 
believe there is minimal benefit from designating critical habitat for 
the flycatcher along the Muddy River within OWMA. As previously 
discussed, the principal benefit of designated critical habitat is that 
activities affecting that habitat require consultation under section 7 
of the Act if a Federal action is involved. Such consultation would 
ensure adequate protection is provided to avoid destruction or adverse 
modification of critical habitat. Annually, NDOW has consulted with the 
Service regarding the distribution of Federal funds to OWMA under the 
Wildlife Sport Fish Restoration Program and Endangered Species Act 
Traditional Section 6 Funds Program. During these informal 
consultations, NDOW has coordinated with the Service to incorporate 
conservation measures to protect flycatcher habitat at OWMA and to 
ensure population status monitoring continues. These procedures 
generated the opportunity to discuss the land management actions that 
altered flycatcher habitat in 2005, and put in place procedures to 
prevent them from occurring in the future. Beyond these informal 
consultations, NDOW has not initiated any formal section 7 
consultations at OWMA. Based on the limited formal consultation 
history, close coordination, and the overall management success of 
flycatcher habitat along the Muddy River, any additional benefit 
afforded to flycatcher habitat from consulting on designated critical 
habitat at OWMA is likely negligible. Beyond these consultations, NDOW 
has not sought any section 7 consultations with the Service at OWMA. 
Based on the limited formal consultation history, any additional 
benefit afforded flycatcher habitat from consulting on designated 
critical habitat at Overton is negligible.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    The Service and NDOW are familiar with the flycatcher within OWMA. 
The Service and NDOW have addressed the flycatcher in prior section 7 
consultations for Federal Aid toward funding for OWMA management 
actions. NDOW conducts flycatcher surveys within OWMA and addressed the 
flycatcher and protecting and improving its habitat within their 
Management Plan. NDOW manages flycatcher habitat and conducts 
flycatcher surveys at both the OWMA and Key Pittman Wildlife Area. 
Because of the need to address and correct the situation that led to 
alteration flycatcher habitat in 2005, OWMA has increased its overall 
flycatcher conservation awareness. With the continued implementation of 
conservation actions associated with their OWMA management plan, we 
believe there is little educational benefit or support for other laws 
and regulations attributable to critical habitat beyond those benefits 
already achieved from listing the flycatcher under the Act.
Benefits of Exclusion--Overton State Wildlife Area
    A considerable benefit from excluding OWMA as flycatcher critical 
habitat is the maintenance and strengthening of ongoing conservation 
partnerships. In addition to the effort for OWMA, NDOW has a 
significant partnership role by developing and implementing flycatcher 
management guidance, conducting project assessment, implementing 
recovery strategies, conducting flycatcher surveys and research, 
managing property, and working with private landowners towards wildlife 
conservation. The NDOW has demonstrated a willingness to develop, 
maintain, and manage portions of the Muddy River for flycatcher 
habitat, as well as habitat for other sensitive and non-listed species.
    Our collaborative relationship with NDOW makes a difference in our 
partnership with the numerous stakeholders involved with flycatcher 
management and recovery and also influences our ability to form 
partnerships with others. Concerns over perceived added regulation 
potentially imposed by critical habitat could harm this collaborative 
relationship.
    Exclusion of this area from the designation would maintain and 
strengthen the partnership between the Service and the NDOW and further 
flycatcher conservation efforts. The success of NDOW's OWMA management 
of habitat protection and development has resulted in a persistent 
population of flycatcher territories, an important component to the 
recovery of flycatchers in the Pahranagat Management Unit and the LCR 
Recovery Unit. NDOW is a key partner to the Service in species 
conservation throughout the State of Nevada and manages important 
flycatcher habitat at OWMA. Because some of the lands at OWMA are 
leased, NDOW partners with BOR and NPS to manage OWMA for multiple-use 
objectives. Additionally, NDOW coordinates with private landowners to 
address wildlife and habitat management concerns that cross ownership 
boundaries. These positive

[[Page 422]]

partnerships between private, State, and Federal organizations will 
encourage conservation practices for flycatcher habitat across land 
management boundaries. Excluding OWMA from critical habitat designation 
will enhance these existing working relationships. These positive 
partnerships between private, State, and Federal organizations will 
encourage conservation practices for flycatcher habitat across land 
management boundaries.
    Because so many important flycatcher areas occur on lands managed 
by non-Federal entities, collaborative relationships are essential for 
flycatcher recovery. The flycatcher and its habitat are expected to 
benefit substantially from voluntary land management actions that 
implement appropriate and effective conservation strategies. The 
conservation benefits of critical habitat are primarily regulatory or 
prohibitive in nature. Where consistent with the discretion provided by 
the Act, the Service believes it is necessary to implement policies 
that provide positive incentives to non-Federal landowners and land 
managers to voluntarily conserve natural resources and to remove or 
reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-14; 
Bean 2002, p. 2). Thus, we believe it is vital for flycatcher recovery 
to build on continued conservation activities such as these with a 
proven partner, and to provide positive incentives for other non-
Federal land managers who might be considering implementing voluntary 
conservation activities but have concerns about incurring incidental 
regulatory, administrative, or economic impacts. Flycatcher habitat 
conservation at Key Pittman is established through planning documents, 
has a long record of success, and resulted in successful flycatcher 
breeding sites.
    The benefits of excluding OWMA include some minimal reduction in 
administrative costs associated with engaging in section 7 
consultations for critical habitat where NDOW may receive Federal 
funding. The costs associated with section 7 consultation for critical 
habitat would include a small increase in time and money spent in 
preparing the applicable documents required during the Federal Aid 
funding cycle. Administrative costs also include additional time spent 
in meetings and preparing letters, and in the case of biological 
assessments and informal and formal consultations, the development of 
those portions of these documents that specifically address the 
critical habitat designation. The NDOW and FWS staff can, more 
appropriately, use these limited funds toward continuing to manage and 
improve NDOW land for their stated purpose, wildlife conservation.
Benefits of Exclusion Outweigh Benefits of Inclusion--Overton State 
Wildlife Area
    We have determined that the benefits of excluding 3.1 km (1.9 mi) 
of the Muddy River on OWMA lands within the Pahranagat Management Unit 
outweigh the benefits of inclusion and will not result in extinction of 
the flycatcher. In making this exclusion, we have weighed the benefits 
of including these lands as critical habitat and the benefits without 
critical habitat.
    The benefits of designating critical habitat for the flycatcher 
within OWMA are relatively small in comparison to the benefits of 
exclusion. We find that including the Muddy River stream segment as 
critical habitat would result in minimal, if any additional benefits to 
the flycatcher. Because any potential impacts to flycatcher habitat 
from future projects with a Federal nexus will be addressed through a 
section 7 consultation with the Service under the jeopardy standard, we 
believe that the incremental conservation and regulatory benefit of 
designated critical habitat on OWMA would largely be redundant with the 
combined benefits of listing and existing management. We believe past, 
present, and future coordination with NDOW has provided and will 
continue to provide sufficient education regarding flycatcher habitat 
conservation needs on these lands, such that there would be minimal 
additional educational benefit or support from other laws and 
regulations from designation of critical habitat. Therefore, the 
incremental conservation and regulatory benefits of designating 
critical habitat within OWMA are minimal.
    Because OWMA is a State-managed wildlife area, the preservation of 
these lands for wildlife is not expected to change. NDOW has provided 
assurance through conservation actions and consultations that the 
habitat at OWMA will be protected and enhanced. As previously 
described, NDOW's existing management plan has effectively guided the 
implementation of projects to ensure the maintenance of flycatcher 
populations at OWMA. Commitments through NDOW's implementation of their 
OWMA Management Plan will continue to foster the maintenance, 
development, and survey of flycatcher habitat. Also, because the 
flycatcher occurs on these lands with these management actions and 
conservation in place, we anticipate that any formal section 7 
consultations conducted on critical habitat would only likely result in 
discretionary conservation recommendations.
    The benefits of excluding OWMA from critical habitat are 
considerable. OWMA management, in cooperation and coordination with the 
Service, are based on appropriate land and water management strategies 
described in the Recovery Plan. These land and water management 
strategies of protecting and improving flycatcher and wildlife habitat 
within OWMA demonstrate an ongoing management commitment. Exclusion of 
these lands from critical habitat will help preserve and strengthen the 
conservation partnership we have developed with NDOW, reinforce those 
we are building with other entities, and foster future partnerships and 
development of management plans. In contrast, inclusion as critical 
habitat may negatively impact our relationships with NDOW and other 
existing or future partners. We are committed to working with NDOW to 
further flycatcher conservation and other endangered and threatened 
species. Therefore, in consideration of the relevant impact to our 
partnership and NDOW's ongoing conservation management practices, we 
determine that the considerable benefits of exclusion outweigh the 
benefits of inclusion in the critical habitat designation.
    After weighing the benefits of including 3.1 km (1.9 mi) of the 
Muddy River within OWMA as flycatcher critical habitat against the 
benefit of exclusion, we have concluded that the benefits of excluding 
this stream segment under the NDOW management pursuant to section 
4(b)(2) of the Act outweigh any benefits that would result from 
designating these areas as critical habitat.
Exclusion Will Not Result in Extinction of the Species--Overton State 
Wildlife Area
    We find that the exclusion of this Muddy River stream segment 
within OWMA will not lead to the extinction of the flycatcher. 
Flycatcher habitat protection and recovery is supported due to NDOW's 
long-term management. NDOW has a long track record of OWMA management 
that has resulted in the maintenance of flycatcher territories and the 
development of additional habitat. Additionally, the long-term 
protection of flycatcher habitat at OWMA is supported because the 
landscape will be preserved as open space due to its inclusion within a 
Wildlife Area. As a result of these conservation and management 
actions, exclusion of the Muddy River will not result in extinction of 
the flycatcher.

[[Page 423]]

San Juan Management Unit
Navajo Nation Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
Southern Ute Tribe Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
Verde Management Unit
Salt River Project Horseshoe and Bartlett Dams HCP
    Pursuant to the 1917 contract between Salt River Project (SRP) and 
the United States of America, the United States set aside land along 
the Verde River in Maricopa and Gila Counties, Arizona, for the purpose 
of developing irrigation facilities for SRP. Bartlett Dam was 
constructed in the 1930s, and Horseshoe Dam was completed in 1945. The 
United States turned over and vested in SRP the authority to care for, 
operate, and maintain all project facilities, of which Horseshoe and 
Bartlett Dams became integral components. SRP is two entities: the Salt 
River Project Agricultural Improvement and Power District, a political 
subdivision of the state of Arizona; and the Salt River Valley Water 
Users' Association, a private corporation. The District provides 
electricity to nearly 934,000 retail customers in the Phoenix area. It 
operates or participates in 11 major power plants and numerous other 
generating stations, including thermal, nuclear, natural gas and 
hydroelectric sources. SRP delivers an average of 1 million acre-feet 
of water each year for use on more than 97,000 ha (240,000 acres) or 
970 square km (375 square mi) of shareholder lands, plus additional 
contract lands with water rights to the Salt and Verde rivers. Most of 
SRP's deliveries are to cities and urban irrigation uses, supplying 
much of the water for the Phoenix metropolitan population of more than 
2.6 million people.
    We proposed a 9.6 km (6.0 mi) segment of the Verde River within the 
conservation space of Horseshoe Lake as flycatcher critical habitat.
    The Service issued an HCP permit to SRP under section 10(a)(1)(B) 
of the Act in 2008 for the operation of Horseshoe and Bartlett Dams. 
For the flycatcher specifically, incidental take is authorized as a 
result of the impacts to nesting habitat and breeding attempts from 
raising and lowering of the water stored behind Horseshoe Dam for a 
period of 50 years.
    The action area, as described in the Horseshoe Bartlett HCP, 
prepared for SRP by ERO Resources Corporation (ERO and SRP 2008, 
entire), extends farther from the location of these dams to areas where 
the impacts of water storage and delivery may occur because of the 
impacts to other species caused by water regulation. Specific 
flycatcher-related impacts were only identified within the high water 
mark of the Horseshoe Lake conservation space between 2,026 feet in 
elevation and Horseshoe Dam. The area within Horseshoe Lake is Federal 
land managed by the USFS. A tri-party agreement between SRP, USFS, and 
USBR (1979, entire) establishes a framework to maintain these water 
storage areas for their intended purpose.
    Periodic changes in the level of the lake water of the Horseshoe 
Lake conservation space due to dam operations and water storage can 
result in the establishment and maintenance of nesting flycatcher 
habitat. This is because flycatchers nest or otherwise use vegetation 
that grows in the dry lakebed within the conservation space. Rising 
water levels or excessive drying can cause temporary losses and 
unavailability of this nesting habitat. The amount and timing of water 
stored in Horseshoe Lake can vary widely from year-to-year because of 
the relatively small amount of water storage space in Horseshoe Lake, 
the erratic nature of precipitation and run-off, and the arid nature of 
the Sonoran Desert.
    It is estimated that between 24 to 182 ha (60 to 450 ac) of 
flycatcher nesting habitat will occur annually within the high water 
mark of Horseshoe Lake over the 50-year permit period of this HCP (ERO 
and SRP 2008, p. 120). The annual average of flycatcher habitat 
estimated to occur within the lake is 105 ha (260 ac) (ERO and SRP 
2008, p. 120).
    Since completion of the Horseshoe and Bartlett Dams HCP, a 
Horseshoe Lake fill-event occurred and confirmed our expectations about 
the continued persistence of flycatcher habitat and territories. While 
Horseshoe Lake water levels and flycatcher territory numbers fluctuate, 
territories continue to persist; the number of territories at Horseshoe 
Lake ranged from 6 territories in 2003, to a high of 20 in 2005, and 
most recently 10 in 2011 (SRP 2012, p. 16).
    Under more favorable low water storage lake conditions, the area 
between the existing pool and the high water mark has supported the 
largest population of flycatchers known on the Verde River 
(approximately 20 territories). Along with the other portions of the 
Verde River upstream and downstream of Horseshoe Lake, flycatcher 
populations at Horseshoe Lake will help to meet the 50 territory and 
habitat-related recovery goals recommended in the Recovery Plan 
(Service 2002, p. 85).
    The 50-year Horseshoe Bartlett HCP conservation strategy focuses 
primarily on the protection and management of flycatcher habitat within 
the Horseshoe Lake conservation space through modified dam operations; 
acquisition and management of flycatcher habitat outside of Horseshoe 
Lake; and the implementation of measures to conserve Verde River water. 
SRP will modify dam operations to make flycatcher habitat available 
earlier in the nesting season and to maintain riparian vegetation at 
higher elevations within the conservation space whenever possible. A 
61-ha (150-ac) parcel of flycatcher habitat was acquired along the 
upper Gila River near Fort Thomas, outside of the Verde Management 
Unit, and an additional 20 ha (50 ac) is being pursued for acquisition 
nearby. SRP's water supply protection program will focus on special 
projects to specifically benefit mitigation habitat such as ground 
water testing and modeling in the vicinity of mitigation lands, 
development and support of instream flow water rights, and research on 
the relationship between hydrology, habitat, and covered species under 
the HCP.
    The non-jeopardy conclusion provided in our intra-service section 7 
biological opinion, required in order to issue the Horseshoe Bartlett 
HCP permit, was based upon the persistence of varying degrees of 
occupied nesting flycatcher habitat within the Horseshoe Lake 
conservation space (under full operation of Horseshoe and Bartlett Dams 
with an HCP) that, along with other areas within the Verde Management 
Unit, could reach the numerical (50 territories) and habitat-related 
goals established in the Recovery Plan. Sections of the Verde River 
upstream and downstream of Horseshoe Lake along the Verde River within 
the Tonto National Forest and farther upstream throughout the Verde 
Valley also occur within the Verde Management Unit and can contribute 
areas with flycatcher habitat toward reaching recovery goals (Service 
2002, p. 91).
Benefits of Inclusion--Horseshoe and Bartlett Dams HCP
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the

[[Page 424]]

continued existence of any listed species or result in the destruction 
or adverse modification of any designated critical habitat of such 
species. The difference in the outcomes of the jeopardy analysis and 
the adverse modification analysis represents the regulatory benefit and 
costs of critical habitat.
    The Horseshoe Lake area being evaluated is known to be occupied by 
flycatchers and has undergone section 7 consultation under the jeopardy 
standard related to the Horseshoe and Bartlett Dams HCP and USFS 
actions. There may be some minor benefits by the designation of 
critical habitat within Horseshoe Lake, primarily because of the 
additional review required by USFS management of the lake bottom. 
However, the USFS management has appropriately managed recreation, 
access, land use, and wildfire that has conserved flycatcher habitat 
since the flycatcher was listed. The remote location of Horseshoe Lake 
makes it a destination that is difficult for the public to get to, and 
therefore reduces its public popularity and potential land-use 
stressors. Within the conservation space of Horseshoe Lake, there is no 
cattle grazing, or road and camping developments; recreation activities 
at the lake is mostly focused on angling. Additionally, because the 
purpose of the conservation space of Horseshoe Lake is to store water, 
it prevents significant land and water altering actions, such as the 
development of permanent structures within this open space area. We 
recently evaluated Tonto National Forest's Land Resource Plan (Service 
2012, entire) and concluded that the majority of the USFS's standards 
and guidelines were found to benefit the flycatcher, and they would not 
jeopardize the flycatcher or adversely modify critical habitat. As a 
result, because of the conservation associated with implementing the 
HCP, flycatcher territories occurring within the Horseshoe Lake 
conservation space, and supporting USFS management, we believe these 
incremental benefits of a critical habitat designation are minimized. 
Formal consultations will likely result in only discretionary 
conservation recommendations due to existing appropriate management; 
therefore we believe there is a low probability of mandatory elements 
(i.e., reasonable and prudent alternatives) arising from formal section 
7 consultations evaluating flycatcher critical habitat at Horseshoe 
Lake.
    We have evaluated Horseshoe Lake Dam operations through 
implementation of the Horseshoe and Bartlett Dams HCP, and considered 
impacts to flycatchers and flycatcher habitat, including how these may 
affect flycatcher recovery within the Verde Management Unit. The 
conservation strategies in the Horseshoe and Bartlett Dams HCP included 
habitat acquisition to account for each hectare (acre) of flycatcher 
habitat affected, management, and monitoring (see above). We concluded 
that Horseshoe Dam operations, while causing incidental take of 
flycatchers periodically, will support the development of flycatcher 
habitat over time, creating conditions that, along with the other 
portions of the Verde River within the Management Unit, can be 
anticipated to reach goals established in the Recovery Plan. Because of 
the non-jeopardy analysis completed in our section 7 consultation, 
continued function of Horseshoe Lake to establish flycatcher habitat 
for recovery, and the comprehensive conservation strategies implemented 
in the HCP, we believe there is a low probability of mandatory elements 
(i.e., reasonable and prudent alternatives) arising from formal section 
7 consultations that include consideration of Horseshoe Dam operations 
on designated flycatcher critical habitat at Horseshoe Lake.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including Horseshoe Lake within the designation, 
because this area is well known as an important area for flycatcher 
management and recovery. For example, flycatcher habitat research has 
occurred at Horseshoe Lake by Arizona State University and SRP; the 
Horseshoe Bartlett HCP was developed over multiple years and was 
completed in 2008; and the Horseshoe Lake area was proposed as 
flycatcher critical habitat in 2004 and excluded in 2005. Additionally, 
since the early 2000s, Horseshoe Lake flycatchers have been discussed 
by management agencies while meeting to discuss to discuss the status 
of the flycatcher and current management issues occurring in Roosevelt 
Lake and other nearby areas. Consequently, we believe that the 
informational benefits have already occurred through past actions even 
though this area is not designated as critical habitat. The importance 
of Horseshoe Lake for conservation of the flycatcher, its importance to 
the Verde Management Unit, and to the population of flycatchers in the 
State of Arizona has already been realized by managing agencies, 
including the public, State and local governments, and Federal 
agencies.
Benefits of Exclusion--Horseshoe and Bartlett Dams HCP
    The benefits of excluding the area within the high-water mark 
(below an elevation of 618 m, 2026 feet) of Horseshoe Lake from being 
designated as critical habitat are considerable, and include the 
conservation measures described above (dam operation modifications, 
land acquisition and management, and water conservation efforts) and 
those associated with implementing conservation through enhancing and 
developing partnerships.
    The Horseshoe Bartlett HCP has and will continue to help generate 
important status and trend information and conservation toward 
flycatcher recovery. SRP will modify dam operations to make flycatcher 
habitat available earlier in the nesting season, purchase and manage 81 
ha (200 ac) of habitat for flycatcher recovery, and implement water 
protection programs on the Verde River. In addition to those specific 
flycatcher conservation actions, the development and implementation of 
this HCP provides regular monitoring of flycatcher habitat, 
distribution, and abundance over the 50-year permit at Horseshoe Lake. 
SRP is currently implementing innovative monitoring of riparian habitat 
abundance and flycatcher habitat suitability through satellite image-
based models (Hatten and Paradzick 2003, entire; SRP 2012, pp. 13-14).
    Because of the importance of the Horseshoe Lake conservation space 
for water storage, there is no expectation that any considerable 
development or changes to the landscape would result in reducing the 
overall water storage space, and therefore the overall ability to 
develop riparian vegetation. Horseshoe Dam operates in a way that 
continues moves water out of the reservoir downstream to Bartlett Lake 
and canals in order to continuously create water storage conservation 
space,

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and therefore area for flycatcher habitat to grow. Constant lake 
levels, which are not the desired condition at Horseshoe Lake for water 
storage or flycatcher habitat development, will not create abundant 
flycatcher habitat. On the contrary, dynamic lake levels that mimic the 
function of flooding on river systems are essential for creating 
habitat conditions needed by nesting flycatchers within Horseshoe Lake.
    We determined in our intra-Service section 7 consultation jeopardy 
analysis for issuance of the Horseshoe Bartlett HCP permit that dam 
operations would not result in jeopardy to the flycatcher. One of the 
primary conservation values of critical habitat is to help sustain 
existing flycatcher populations. The threshold for reaching destruction 
or adverse modification at Horseshoe Lake, in an area where nesting 
flycatchers occur, would typically result in the inability for the 
habitat to sustain populations. Similarly, the threshold to jeopardize 
the continued existence of the species would also typically result in 
the inability of the habitat to sustain local populations. Flycatcher 
populations have persisted within the high water mark at Horseshoe Lake 
throughout increases and decreases in water storage. Ever since nesting 
flycatchers were detected in 2002, flycatcher territories have 
persisted within the Horseshoe Lake and additional territories have 
been detected along the Verde River. The expanding and contracting 
flycatcher habitat within the lake combined with dynamic habitat 
upstream and downstream along the Verde River support the overall 
flycatcher population within the Verde Management Unit. Therefore, the 
outcome of consultation under section 7 of the Act on Horseshoe and 
Bartlett Dam operations with critical habitat designated would not 
likely be materially different compared to the listing of the species 
alone.
    Failure to exclude Horseshoe Lake could be a disincentive for other 
entities contemplating partnerships, as it would be perceived as a way 
for the Service to impose additional regulatory burdens once 
conservation strategies have already been agreed to. Private entities 
are motivated to work with the Service collaboratively to develop 
voluntary HCPs because of the regulatory certainty provided by an 
incidental take permit under section 10(a)(1)(B) of the Act with the 
``No Surprises'' assurances. This collaboration often provides greater 
conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It takes 
considerable time and effort to establish this foundation of mutual 
trust and understanding, which is one reason it often takes several 
years to develop a successful HCP. Excluding this area from critical 
habitat would help promote and honor that trust by providing greater 
certainty for permittees that once appropriate conservation measures 
have been agreed to and consulted on for the flycatcher that additional 
consultation will not be necessary.
    Through the development of the Horseshoe Bartlett HCP, we have 
generated additional partnerships with SRP and its stakeholders by 
developing collaborative conservation strategies for the flycatcher and 
the habitat upon which it depends for breeding, sheltering, foraging, 
migrating, and dispersing. The strategies within the HCP seek to 
achieve conservation goals for the flycatcher and its habitat, and thus 
can be of greater conservation benefit than the designation of critical 
habitat, which does not require specific actions. Continued cooperative 
relations with SRP and its stakeholders is expected to influence other 
future partners and lead to greater conservation than would be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations. For example, soon after completing the Roosevelt HCP, we 
partnered with SRP and its stakeholders to develop the Horseshoe and 
Bartlett Dam HCP where the flycatcher conservation was a key component. 
The benefits of excluding lands within the Horseshoe and Bartlett Dam 
HCP area from critical habitat designation include recognizing the 
value of conservation benefits associated with HCP actions; encouraging 
actions that benefit multiple species; encouraging local participation 
in development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP. Concerns over perceived 
added regulation potentially imposed by critical habitat could harm 
this collaborative relationship.
    A benefit of excluding Horseshoe Lake from critical habitat 
includes a small reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion. However, because the flycatcher occurs at Horseshoe Lake, 
consultations evaluating jeopardy to the flycatcher would be expected 
to occur regardless of a critical habitat designation, and those costs 
to perform the additional analysis are not expected to be significant.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Horseshoe 
Bartlett Dams HCP
    We have determined that the benefits of exclusion of the 
conservation space of Horseshoe Lake below 618 m (2,026 feet) in 
elevation from the designation of flycatcher critical habitat on 
Federal lands managed by the USFS, as identified in the Horseshoe 
Bartlett HCP, outweigh the benefits of inclusion and will not result in 
extinction of the flycatcher. This is because current dam operations, 
management, and conservation efforts maintain the physical or 
biological features necessary to develop, maintain, recycle, and 
protect flycatcher habitat essential to its conservation. In making 
this finding, we have weighed the benefits of including these lands as 
critical habitat with an operative HCP and management by the USFS, and 
without critical habitat.
    The benefits of designating critical habitat for the flycatcher at 
Horseshoe Lake are relatively small in comparison to the benefits of 
exclusion. We find that including Horseshoe Lake would result in very 
minimal, if any additional benefits to the flycatcher, because 
Horseshoe Dam operations will continue to foster the maintenance, 
development, and necessary recycling of habitat for the flycatcher in 
the long-term due to the dynamic nature of water storage and delivery. 
USFS management fosters the presence of flycatcher habitat, and there 
is virtually no risk of changes to the landscape within the Horseshoe 
Lake conservation space. As a result, we anticipate that formal section 
7 consultations conducted on critical habitat will only likely result 
in discretionary conservation recommendations.
    The benefits of excluding Horseshoe Lake from inclusion as critical 
habitat are considerable and varied. Excluding Horseshoe Lake will 
continue to help foster development of future HCPs and strengthen our 
partnership with Horseshoe Bartlett HCP permittees and stakeholders. 
Excluding Horseshoe Lake also eliminates regulatory uncertainty 
associated with the permittees HCP and the operation of Horseshoe and 
Bartlett Dams for water storage and flood control. The conservation 
benefits of implementing the Horseshoe and Bartlett Dam HCP are 
considerable and

[[Page 426]]

include acquisition and management of flycatcher habitat, modifications 
of Horseshoe Dam operations to facilitate the persistence of flycatcher 
habitat, and long-term monitoring of flycatcher habitat and 
territories. These conservation measures are substantial and will 
result in greater flycatcher conservation benefits than what could be 
accomplished from a project-by-project evaluation through the 
incremental benefits of a critical habitat designation. Excluding 
Horseshoe Lake will also eliminate some additional administrative 
effort and cost during the consultation process pursuant to section 7 
of the Act.
    After weighing the benefits of including Horseshoe Lake as 
flycatcher critical habitat against the benefit of exclusion, we have 
concluded that the benefits of excluding the conservation space of 
Horseshoe Lake below an elevation 618 m (2026 feet), underneath the 
coverage of the Horseshoe Bartlett HCP and with the support of USFS 
management, outweigh those that would result from designating this area 
as critical habitat. We have therefore excluded these lands from this 
final critical habitat designation pursuant to section 4(b)(2) of the 
Act.
    As mentioned below in our evaluation of SRP's Roosevelt HCP, SRP 
requested that their flycatcher mitigation property along the upper 
Gila River purchased as part of the measures to implement the Horseshoe 
Bartlett Dams HCP be designated as critical habitat. The mitigation 
property is not located within the Horseshoe lakebed, and may benefit 
from section 7 consultation. Therefore, based upon the comments 
received from SRP and the likely benefit of future section 7 
consultation, the Secretary exercises his discretion under section 
4(b)(2) of the Act, and determines that the mitigation properties 
acquired by SRP along the Gila River are included in this final 
designation as flycatcher critical habitat.
Exclusion Will Not Result in Extinction of the Species--Horseshoe and 
Bartlett Dams HCP
    We find that the exclusion of the conservation space of Horseshoe 
Lake will not lead to the extinction of the flycatcher, nor hinder its 
recovery because Horseshoe and Bartlett Dam operations combined with 
the preservation of open space within the lake and USFS land management 
will ensure the long-term persistence and protection of flycatcher 
habitat at Horseshoe Lake. We determined in our intra-Service section 7 
biological opinion for the issuance of the Horseshoe and Bartlett Dams 
HCP permit that operations would not result in jeopardy. We also 
determined that while Horseshoe Dam operations will cause incidental 
take of flycatchers and cause fluctuations in habitat abundance and 
quality, reservoir operations will also create a dynamic environment 
that fosters the long-term persistence of habitat. It was estimated 
that during the life of the permit, an annual average of 105 ha (260 
ac) flycatcher habitat would persist, ranging from 24 to 182 ha (60 to 
450 ac). The number of territories could fluctuate greatly, but 
considering the 4.5-ha (11-ac) neighborhood used during the HCP 
development to describe an area used per flycatcher territory (ERO and 
SRP 2008, p. 111), about 20 territories could be expected to persist 
about 50 percent of the time over the HCP permit period (ERO and SRP 
2008, p. 121). USFS management has continued to foster the maintenance 
and development of flycatcher habitat through land management actions 
that protect habitat and reduce habitat stressors. Our recent 
evaluation of the Tonto National Forest's Land Management Resource Plan 
concluded that the majority of USFS standards and guidelines would 
benefit the flycatcher and their implementation would not jeopardize 
the flycatcher or adversely modify critical habitat.
Yavapai-Apache Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
Roosevelt Management Unit
Salt River Project Roosevelt Lake HCP
    The Roosevelt Dam HCP was permitted to SRP under section 
10(a)(1)(B) of the Act in 2003, for the operation of Roosevelt Dam in 
Gila and Maricopa Counties, Arizona. Pursuant to the 1917 contract 
between SRP and the United States of America, the United States turned 
over and vested in SRP the authority to care for, operate, and maintain 
all project facilities, of which Roosevelt Dam is an integral 
component. SRP is two entities: The Salt River Project Agricultural 
Improvement and Power District, a political subdivision of the State of 
Arizona; and the Salt River Valley Water Users' Association, a private 
corporation. The District provides electricity to nearly 934,000 retail 
customers in the Phoenix area. It operates or participates in 11 major 
power plants and numerous other generating stations, including thermal, 
nuclear, natural gas, and hydroelectric sources. SRP delivers an 
average of 1 million acre-feet (AF) of water each year for use on more 
than 240,000 acres or 375 square miles of shareholder lands, plus 
additional contract lands with water rights to the Salt and Verde 
rivers. Most of SRP's deliveries are to cities and urban irrigation 
uses, supplying much of the water for the Phoenix metropolitan 
population of more than 2.6 million. The Record of Decision for the HCP 
was dated February 27, 2003. The associated incidental take permit 
authorizes incidental take of the flycatcher caused by the raising and 
lowering of the water stored by Roosevelt Dam for a period of 50 years.
    The action area, as described in SRPs Roosevelt Dam HCP (SRP 2002, 
p. ES-1), is the perimeter of Roosevelt Lake's high water mark below 
the 2,151 foot elevation point. The land within the Roosevelt Lake 
perimeter is Federal land and managed by the USFS.
    The Roosevelt Lake nesting flycatcher population, depending on the 
year, can be one of the largest across the subspecies range 
(approximately 150 territories, plus an unknown number of unmated 
floating/non-breeding flycatchers and fledglings). During lower water 
years, by moving water into downstream lakes, Roosevelt Dam can expose 
broad areas of flat gradient floodplain where riparian vegetation can 
grow at both the Salt River and Tonto Creek inflows. The areas at each 
end of the lake are estimated to be able to establish as much as 506 ha 
(1,250 ac) of occupied flycatcher nesting habitat within its high water 
mark.
    The cycles of germination, growth, maintenance, and loss of 
flycatcher habitat within the perimeter of Roosevelt Lake are dependent 
on how and when the lake recedes due to the amount of water in-flow, 
and subsequent storage capacity and delivery needs caused by Roosevelt 
Dam operations. The process of flycatcher habitat inundation and drying 
through raising and lowering of lake levels can be more exaggerated 
than the dynamic flooding that occurs on free-flowing streams, yet 
those dynamic processes within the lake's high water mark mimic those 
that occur on a river and are important to develop and maintain 
expansive flycatcher habitat and populations. Even in the expected 
high-water years, some high quality riparian habitat would persist at 
Roosevelt Lake providing flycatcher nesting opportunities.
    The 50-year Roosevelt Dam HCP conservation strategy focuses 
primarily on: (1) The acquisition and management of flycatcher habitat 
outside of Roosevelt Lake; (2) the protection of

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existing habitat within the Roosevelt Lake conservation space; and (3) 
the creation of riparian habitat adjacent to Roosevelt Lake. Outside of 
the Roosevelt Management Unit, a minimum of 607 ha (1,500 ac) of 
flycatcher habitat is to be acquired and managed by SRP on the San 
Pedro, Verde, and Gila Rivers, along with implementation of 
conservation measures to protect up to an additional 304 ha (750 ac) of 
flycatcher habitat. Flycatcher habitat was to be created and maintained 
at Roosevelt Lake (outside of the impacts of water storage) at the 
adjacent Rock House Farm. Also, because the USFS has management 
authority over dry land within the lakebed, SRP would fund a USFS 
Forest Protection Officer to patrol and improve protection of 
flycatcher habitat in the Roosevelt lakebed from adverse activities 
such as fire ignition from human neglect, improper vehicle use, and 
other unauthorized actions that could harm habitat. As a result of 
these conservation commitments, the HCP provides an additional level of 
protection of flycatcher habitat at Roosevelt Lake that would not 
otherwise be available.
    As identified in the HCP, flycatcher properties have been acquired 
along the lower San Pedro and Gila River (Middle Gila/San Pedro 
Management Unit) and along the Verde River (Verde Management Unit) (SRP 
2012a, pp. 17-20). SRP has surpassed its required 910 ha-credits (2,250 
ac) to date, by overall accruing 1,049 ha-credits (2,591 ac). They have 
acquired 745 ha (1,842 ac) of riparian habitat and 177 ha-credits (429 
ac) of buffer lands and water rights. They have also developed 8 ha (20 
ac) of flycatcher habitat at Rock House Farm (which holds flycatcher 
territories) and acquired 121 ha-credits (300 ac) from funding the USFS 
employee to help on-the-ground management Roosevelt Lake flycatchers 
(SRP 2012a, pp. 13-20).
    The Service completed a section 7 consultation under the Act in 
order to issue the Roosevelt Section 10 HCP permit. The Service's 
conclusion that issuance of the section 10 permit for the HCP would not 
jeopardize the species was based upon the Service's determination that 
varying degrees of occupied nesting flycatcher habitat within the 
Roosevelt Lake conservation space (under full operation of Roosevelt 
Dam with an HCP) would persist, and when combined with other areas 
within the Roosevelt Lake Management Unit, could reach the numerical 
(50 territories) and habitat-related goals established in the Recovery 
Plan. An average of 121 to 162 ha (300 to 400 ac) of flycatcher habitat 
(thus about 60 to 81 ha, 150 to 200 ac of occupied flycatcher nesting 
habitat) would be present within the Roosevelt Lake conservation space 
during the life of the permit, which could support 45 to 90 flycatcher 
territories (Service 2003, p. 51). Even in a worse case flood event, 
causing the lake to fill to capacity, 15 to 30 flycatcher territories 
are expected to persist. Under more favorable habitat conditions, the 
area between the existing pool and the high water mark could support 
one of the largest nesting flycatcher populations throughout the 
subspecies' range. Adjacent streams outside of the high water mark 
(Tonto Creek, Salt River, Cherry Creek, Rye Creek, etc.) also occur 
within the Roosevelt Management Unit and contribute areas with 
flycatcher habitat and territories toward reaching recovery goals.
    When the Roosevelt Dam HCP was completed in 2003, lake levels were 
near their lowest and flycatcher populations were most abundant. Since 
completion of the HCP, a lake-fill event occurred and confirmed our 
expectations about the persistence of flycatcher habitat and 
territories. In 2005, water levels rose to nearly full capacity, which 
caused reductions and changes in the distribution and abundance of 
flycatcher populations in the Roosevelt Lake Management Unit consistent 
with the habitat estimations and conclusions developed in the Roosevelt 
HCP. During the 2011 breeding, season SRP (2012a, pp. 7-8) ran the 
multi-scaled, satellite-image-based flycatcher habitat suitability 
model (Hatten and Paradzick 2003, entire) and estimated that 34 ha (85 
ac) of potentially suitable flycatcher breeding habitat existed below 
the Roosevelt Lake high water mark. These changes in water storage 
resulted in a minimum of 26 flycatcher territories supported within the 
Roosevelt Lake high water mark in 2011, and additional territories on 
the Tonto Arm of Roosevelt Lake that are likely influenced by the 
elevated water levels (SRP 2012a, p. 9).
    Once water recedes and uncovers the ground where flycatcher habitat 
can grow, the USFS is the primary land manager. Since the listing of 
the flycatcher, the Tonto National Forest has managed resource use, 
wildfire, and recreation, activities that can impact flycatcher 
habitat, through improved fencing and access management. Through the 
Roosevelt HCP, the USFS Protection Officer adds additional management 
to help monitor and manage authorized and unauthorized actions that 
could affect flycatcher habitat. A tri-party agreement between SRP, 
USFS, and USBR (1979, entire) establishes a framework to maintain these 
water storage areas for their intended purpose.
    During completion of the 2005 flycatcher critical habitat rule, SRP 
requested that all of their flycatcher mitigation properties purchased 
before the publication of our final 2005 critical habitat be designated 
as critical habitat. SRP has made the same request during this revision 
of critical habitat.
Benefits of Inclusion--Roosevelt Lake
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Roosevelt Lake area is known to be occupied by flycatchers and 
has undergone section 7 consultation under the jeopardy standard 
related to the Roosevelt Lake HCP and USFS actions. There may be some 
minor benefits from the designation of critical habitat within 
Roosevelt Lake, primarily because it would require the Service and USFS 
to perform additional review of USFS management within the exposed 
portion of the lake bottom through a critical habitat consultation 
under section 7 of the Act. These USFS management actions are typically 
associated with recreation management and access, as well as resource 
use. However, the types and extent of USFS actions within the Roosevelt 
Lake conservation space are somewhat limited because the purpose of the 
conservation space of Roosevelt Lake is to store water. Additionally, 
because of the persistence of abundant flycatcher territories at 
Roosevelt Lake, USFS management has appropriately managed recreation, 
access, land use, and wildfire in a manner that has conserved 
flycatcher habitat since listing. For example, the Tonto National 
Forest implements seasonal access restrictions surrounding flycatcher 
habitat at Roosevelt Lake to reduce habitat stressors such as wildfire, 
trampling, and unauthorized road use and creation. We recently 
evaluated Tonto National Forest's Land Resource Plan (Service 2012, pp. 
29-44) and concluded that the majority of the USFS's standards and 
guidelines were found to benefit the flycatcher and they would not 
jeopardize the flycatcher or adversely modify critical habitat. For

[[Page 428]]

these reasons and because formal consultations will likely result in 
only discretionary conservation recommendations due to existing 
appropriate management, we believe there is a low probability of 
mandatory elements (i.e., reasonable and prudent alternatives) arising 
from formal section 7 consultations that include consideration of 
designated critical habitat for the flycatcher at Roosevelt Lake.
    We have evaluated Roosevelt Lake Dam operations through 
implementation of the Roosevelt HCP, and considered impacts to 
flycatchers and flycatcher habitat, including how these may affect 
flycatcher recovery within the Roosevelt Management Unit. The 
conservation strategies in the Roosevelt HCP included considerable 
habitat acquisition to account for each hectare (acre) of flycatcher 
habitat affected, management, and monitoring (see above). We concluded 
that Roosevelt Dam operations, while causing incidental take of 
flycatchers periodically, will support the development of flycatcher 
habitat over time, creating conditions that, along with the other 
streams within the Management Unit, can be anticipated to reach goals 
established in the Recovery Plan. Because of the non-jeopardy analysis 
completed in our section 7 consultation, the continued function of 
Roosevelt Lake to establish flycatcher habitat for recovery, and the 
comprehensive conservation strategies implemented in the HCP, we 
believe there is a low probability of mandatory elements (i.e., 
reasonable and prudent alternatives) arising from formal section 7 
consultations that include consideration of Roosevelt Dam operations on 
designated flycatcher critical habitat at Roosevelt Lake.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including Roosevelt Lake within the designation 
because this area is well known as an important area for flycatcher 
management and recovery. For example, extensive flycatcher research has 
occurred at Roosevelt Lake through much of the late 1990s and early 
2000s by USGS, USBR, and AGFD; the Roosevelt Dam HCP was developed in 
2003; periodic news articles were published on the development of the 
Roosevelt Dam HCP; and the Roosevelt Lake area was proposed as 
flycatcher critical habitat in 2004 and excluded in 2005. Additionally, 
since the mid-1990s, SRP, USFS, USBR, AGFD, and the Service have met 
annually to discuss the status of the flycatcher and current management 
issues occurring in the Roosevelt Lake area. Consequently, we believe 
that the informational benefits have already occurred through past 
actions even though this area is not designated as critical habitat. 
The importance of Roosevelt Lake for conservation of the flycatcher, 
and its importance to the Roosevelt Management Unit and to the 
population of flycatchers in the State of Arizona has already been 
realized by managing agencies, including the public, State and local 
governments, and Federal agencies.
Benefits of Exclusion--Roosevelt Lake
    The benefits of excluding the area within the high-water mark 
(below an elevation of 655 m, 2150 feet) of Roosevelt Dam from being 
designated as critical habitat are considerable, and include the 
conservation measures described above (land acquisition and management, 
and habitat development) and those associated with implementing 
conservation through enhancing and developing partnerships.
    The implementation of the Roosevelt HCP has and will continue to 
help generate important status and trend information and conservation 
for flycatcher recovery. As described above, SRP has surpassed its 
required 910 ha-credits (2,250 ac) to date, by accruing 745 ha (1,842 
ac) of riparian habitat and 174 ha-credits (429 ac) of buffer lands and 
water rights. They have also developed 8 ha (20 ac) of flycatcher 
habitat at Rock House Farm and funded a USFS employee to help on-the-
ground management of Roosevelt Lake flycatchers (SRP 2012a, pp.15-16). 
In addition to these specific flycatcher conservation actions, the 
development and implementation of this HCP provides regular monitoring 
of flycatcher habitat, distribution, and abundance over the 50-year 
permit. SRP is also currently implementing innovative monitoring of 
riparian habitat abundance and flycatcher habitat suitability through 
satellite image-based models (Hatten and Paradzick 2003, entire; SRP 
2012a, pp. 7-8).
    Because of the importance of the Roosevelt Lake conservation space 
for water storage, there is no expectation that any considerable 
development or changes to the landscape would result in reducing the 
overall water storage space, and therefore the overall ability to 
develop riparian vegetation. Roosevelt Dam operates in a way that 
continues to move water out of the reservoir to downstream lakes and 
canals in order to continuously create water storage conservation space 
at Roosevelt Lake, and therefore area for riparian vegetation (i.e., 
flycatcher habitat) to grow. Constant lake levels would not have 
resulted in the creation of the hundreds of acres of flycatcher habitat 
between 1995 and 2004 (Ellis et al. 2008, p. i). On the contrary, 
dynamic lake levels, similar to river systems, are important for the 
creation and maintenance of abundant flycatcher habitat at this 
location.
    We determined in our intra-Service section 7 consultation jeopardy 
analysis for issuance of the Roosevelt Dam HCP permit that dam 
operations would not result in jeopardy to the flycatcher. One of the 
primary conservation values of critical habitat is to help sustain 
existing flycatcher populations. The threshold for reaching destruction 
or adverse modification at Roosevelt Lake, in an area where so many 
flycatchers occur, would typically result in the inability for the 
habitat to sustain populations for recovery. Similarly, the threshold 
to jeopardize the continued existence of the species would also 
typically result in the inability of the habitat to sustain local 
populations. Flycatcher populations have persisted within the high 
water mark at Roosevelt Lake throughout increases and decreases in 
water storage and have subsequently expanded along streams adjacent to 
Roosevelt Lake (Salt River, Tonto Creek, Pinal Creek, Cherry Creek, Rye 
Creek). In 2011, the Roosevelt Lake Management Unit supported at least 
100 territories on these streams. The expanding and contracting 
flycatcher habitat within the lake combined with dynamic habitat along 
adjacent streams support the overall flycatcher population within the 
Roosevelt Management Unit and the Recovery Plan's 50-territory goal. 
Therefore, because Roosevelt Dam operations mimic the stream functions 
that support flycatcher habitat, and because of the

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implementation of Roosevelt HCP conservation actions and management 
support from the USFS, the outcome of consultation under section 7 of 
the Act with the Roosevelt Lake conservation space with critical 
habitat designated would not likely be materially different compared to 
the listing of the species alone.
    Failure to exclude Roosevelt Lake could be a disincentive for other 
entities contemplating partnerships, as it would be perceived as a way 
for the Service to impose additional regulatory burdens once 
conservation strategies have already been agreed to. Private entities 
are motivated to work with the Service collaboratively to develop 
voluntary HCPs because of the regulatory certainty provided by an 
incidental take permit under section 10(a)(1)(B) of the Act with the 
``No Surprises'' assurances. This collaboration often provides greater 
conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It takes 
considerable time and effort to establish this foundation of mutual 
trust and understanding, which is one reason it often takes several 
years to develop a successful HCP. Excluding this area from critical 
habitat will help promote and honor that trust by providing greater 
certainty for permittees that once appropriate conservation measures 
have been agreed to and consulted on for the flycatcher that additional 
consultation will not be necessary.
    Through the development of the Roosevelt Dam HCP, we have generated 
additional partnerships with SRP and its stakeholders by developing 
collaborative conservation strategies for the flycatcher and the 
habitat upon which it depends for breeding, sheltering, foraging, 
migrating, and dispersing. The strategies within the Roosevelt HCP seek 
to achieve conservation goals for the flycatcher and its habitat, and 
will achieve greater conservation benefit than the designation of 
critical habitat and multiple site-by-site, project-by-project, section 
7 consultations, which is unlikely to require specific actions. 
Continued cooperative relations with SRP and its stakeholders are 
expected to influence other future partners. Our experience has 
demonstrated that successful completion of one HCP has resulted in the 
development of other conservation efforts and HCPs with other 
landowners. For example, soon after completing the Roosevelt HCP, we 
partnered with SRP and its stakeholders to develop the Horseshoe and 
Bartlett Dam HCP where the flycatcher conservation was a key component. 
The benefits of excluding lands within the Roosevelt Lake HCP area from 
critical habitat designation include recognizing the value of 
conservation benefits associated with HCP actions; encouraging actions 
that benefit multiple species; encouraging local participation in 
development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP. Concerns over perceived 
added regulation potentially imposed by critical habitat could harm 
this collaborative relationship.
    A benefit of excluding Roosevelt Lake from critical habitat 
includes a small reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion. However, because the flycatcher occurs at Roosevelt Lake, 
consultations are expected to occur regardless of a critical habitat 
designation, and those costs to perform the additional analysis are not 
expected to be significant.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Roosevelt 
Lake
    We have determined that the benefits of exclusion of the 
conservation space of Roosevelt Lake below 655 m (2,151 feet) in 
elevation from the designation of flycatcher critical habitat on 
Federal land managed by the USFS, as identified in the Roosevelt Dam 
HCP, outweigh the benefits of inclusion, and will not result in 
extinction of the flycatcher because current dam operations, 
management, and conservation efforts maintain the physical or 
biological features necessary to develop, maintain, recycle, and 
protect flycatcher habitat essential to its conservation. In making 
this finding, we have weighed the benefits of including these lands as 
critical habitat with an operative HCP and management by the USFS, and 
the same situation without critical habitat.
    The benefits of designating critical habitat for the flycatcher at 
Roosevelt Lake are relatively small in comparison to the benefits of 
exclusion. We find that including Roosevelt Lake as critical habitat 
would result in very minimal, if any, additional benefits to the 
flycatcher. Roosevelt Dam operations will continue to foster the 
maintenance, development, and necessary recycling of habitat for the 
flycatcher in the long term due to the dynamic nature of water storage 
and delivery. USFS management fosters the maintenance and development 
of flycatcher habitat, and there is virtually no risk of changes to the 
landscape within the Roosevelt Lake conservation space. As a result, we 
anticipate that formal section 7 consultations conducted on critical 
habitat would only likely result in discretionary conservation 
recommendations.
    The benefits of excluding Roosevelt Lake from inclusion as critical 
habitat are considerable. Excluding Roosevelt Lake would continue to 
help foster development of future HCPs and strengthen our partnership 
with Roosevelt HCP permittees and stakeholders. Excluding Roosevelt 
Lake also eliminates regulatory uncertainty associated with the 
permittees' HCP and the operation of Roosevelt Dam for water storage 
and flood control. The conservation benefits of implementing the 
Roosevelt HCP are considerable and include significant acquisition and 
management of flycatcher habitat, creation of flycatcher habitat 
adjacent to Roosevelt Lake, on-the-ground protection of flycatcher 
habitat, and long-term monitoring of flycatcher habitat and 
territories. These conservation measures are substantial and will 
result in greater flycatcher conservation benefits than what could be 
accomplished from a project-by-project evaluation through the 
incremental benefits of a critical habitat designation. Also, excluding 
Roosevelt Lake will eliminate some additional, but minimal, 
administrative effort and cost during the consultation process pursuant 
to section 7 of the Act.
    After weighing the benefits of including Roosevelt Lake as 
flycatcher critical habitat against the benefit of exclusion, we have 
concluded that the benefits of excluding the conservation space of 
Roosevelt Lake below an elevation 655 m (2151 feet), underneath the 
coverage of the Roosevelt HCP and with the support of USFS management, 
outweigh those that would result from designating this area as critical 
habitat. We have therefore excluded these lands from the final critical 
habitat designation pursuant to section 4(b)(2) of the Act.
    As mentioned above, during development of the 2005 flycatcher 
critical habitat designation, SRP requested that all of their 
flycatcher mitigation properties purchased before the publication of 
our final 2005 critical habitat designation, be designated as

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critical habitat. They have made the same request on mitigation 
properties in connection with this revision. The mitigation properties 
are not located within the Roosevelt lakebed, and may benefit from 
section 7 consultation on their management. Therefore, based upon the 
comments received from SRP and the likely benefit of future section 7 
consultation, the Secretary exercises his discretion under section 
4(b)(2) of the Act, and determines that the mitigation properties 
acquired by SRP along the San Pedro, Gila, and Verde Rivers are 
included in this final designation as flycatcher critical habitat.
Exclusion Will Not Result in Extinction of the Species--Roosevelt Lake
    We find that the exclusion of the conservation space of Roosevelt 
Lake will not lead to the extinction of the flycatcher, nor hinder its 
recovery because Roosevelt Dam operations combined with the 
preservation of open space within the lake and USFS land management 
will ensure the long-term persistence and protection of flycatcher 
habitat at Roosevelt Lake. We determined in our intra-Service section 7 
biological opinion for the issuance of the Roosevelt HCP permit that 
operations would not result in jeopardy. We determined that, while 
Roosevelt Dam operations will cause incidental take due to operations 
that cause fluctuations in habitat abundance and quality, reservoir 
operations also create a dynamic environment that fosters the long-term 
persistence of habitat. It was estimated that during the life of the 
permit, an average amount of habitat to support 45 to 90 flycatcher 
territories would be present throughout the life of the 50-year permit 
and even in a worst case flood event with maximum water storage, 15 to 
30 territories could persist. USFS management has continued to foster 
the maintenance and development of flycatcher habitat through land 
management actions that reduce habitat stressors. Our recent evaluation 
of the Tonto National Forest's Land Management Resource Plan concluded 
that the majority of USFS standards and guidelines would benefit the 
flycatcher and their implementation would not jeopardize the flycatcher 
or adversely modify critical habitat.
Freeport McMoRan Pinal Creek Management Plan
    FMC, a private mining company, which acquired Phelps Dodge 
Corporation in 2007, has ownership and management responsibility for 
the segment of Pinal Creek proposed as flycatcher critical habitat in 
Gila County, Arizona. Along this Pinal Creek segment, FMC is actively 
implementing the Water Quality Assurance Revolving Fund (WQARF) 
Remedial Action Program required by the Arizona Department of 
Environmental Quality Consent Order issued in April 1998.
    The primary purpose of this Remedial Action Program is the 
monitoring, extraction, and treatment of contaminated Pinal Creek 
groundwater. Groundwater contamination near the Towns of Globe and 
Miami was first discovered in the 1930s. The first area-wide 
investigation of groundwater and surface water contamination was 
initiated in 1979, and completed in 1981. In 1989, the site was listed 
on the WQARF Priority List by the State of Arizona. Also in 1989, the 
Pinal Creek Group (an alliance of local mining companies) was formed to 
conduct the remedial investigations and begin remedial actions in 1990. 
A groundwater feasibility study and recommended remedial action plan 
were completed by 1997.
    The remedial action plan proposed groundwater extraction at two 
locations to provide upstream and downstream containment of the 
contamination plume. In November 1999, the Lower Pinal Creek Treatment 
Plant was completed, and contaminated groundwater extraction at the 
leading edge of the plume began. In January 2001, a groundwater barrier 
was constructed across lower Pinal Creek to provide downstream 
containment of the plume. Full-scale groundwater extraction for 
treatment began just above the barrier. In June 2001, a second 
groundwater well field was constructed to provide upstream containment 
of the contaminated groundwater plume, and a second treatment plant 
(the Diamond H Treatment Plant) was constructed to treat the water 
captured at Kiser Basin.
    The Corps authorized the discharge of fill material to waters of 
the United States that was required to implement remediation activities 
using Nationwide Permit (NWP) 38. The Corps' authorization to use NWP 
38 for remediation activities at Pinal Creek included project specific 
requirements to implement a mitigation and monitoring plan. The Corps 
permits required control of exotic riparian plant species and improved 
cattle management in order to foster the development of native riparian 
habitat.
    As a result of the water remediation and land management actions 
associated with the Corps' permit, riparian habitat flourished in 
quality and quantity. From 1999 to 2007, these water and land 
management actions resulted in an 88 percent increase in total riparian 
vegetation volume within the mitigation area (FMC 2012, p. 11). Soon 
after implementing these management actions and development of improved 
riparian habitat quality, territorial flycatchers were attracted to the 
site and have persisted from 2004 through 2011 (2 to 8 territories 
annually) (FMC 2012, p.14).
    FMC submitted a flycatcher management plan for the proposed segment 
of Pinal Creek (FMC 2012, entire), committing to continue implementing 
the land management actions initiated through the Corps permit that 
have resulted in the improved abundance, distribution, and quality of 
riparian habitat for nesting flycatchers for the life of the water 
remediation project. The life of the water remediation project and 
accompanying land management actions are estimated to occur for at 
least the next 10 years and possibly longer (Tress J. 2012, pers. 
comm.). FMC will continue to eliminate cattle access to the riparian 
area during the spring and fall growing season in order to reduce the 
grazing pressure on flycatcher habitat. Also, exotic plant management 
will reduce the occurrence of flammable plants and reduce the potential 
impacts of wildfire within the riparian area. FMC will implement and 
enforce a strict ``no trespassing'' policy for Pinal Creek. Fencing and 
maintenance of fencing will minimize trespass recreational pressure on 
riparian vegetation. FMC will also monitor vegetation and conduct 
flycatcher surveys within this Pinal Creek segment.
Benefits of Inclusion--Pinal Creek
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    Pinal Creek is known to be occupied by flycatchers and therefore, 
if a Federal action or permitting occurs, there is a catalyst for 
evaluation under section 7 of the Act. It is possible that in the 
future, federal funding or permitting could occur on this privately 
owned and managed segment of Pinal Creek where a critical habitat 
designation may benefit flycatcher habitat. For example, a Corps permit 
was needed to implement FMC's remediation program

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within Pinal Creek. At that time, Pinal Creek was not known to be a 
stream where flycatcher territories could occur and the riparian 
vegetation was not dense or abundant enough to expect territorial 
flycatchers to be present. Implementation of the habitat management 
conditions included in the Corps permit was a significant contributing 
factor in causing flycatcher habitat to become established. However, 
now that flycatchers are known to occur along Pinal Creek, the benefits 
of a critical habitat designation are reduced to the possible 
incremental benefit of critical habitat because the designation would 
no longer be the sole catalyst for initiating section 7 consultation. 
We do not have any previous records of section 7 consultations 
addressing flycatchers and their habitat along Pinal Creek. Also, 
because this stream segment is privately owned and is primarily being 
managed for environmental remediation and habitat improvement, we do 
not anticipate future Federal actions to impact the current remediation 
action or habitat improvements associated with the Corps permit and 
continued flycatcher management actions. Because of the lack of past 
section 7 consultations within this Pinal Creek segment of privately 
owned land, the reduced likelihood of future federal actions altering 
the current environment clean-up and management of this stream segment, 
the presence of flycatcher territories, and the commitment to continue 
implementing land management actions that maintain flycatcher habitat, 
the benefits of a critical habitat designation on this lower segment of 
Pinal Creek are minimized.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the flycatcher that reaches 
a wide audience, including parties engaged in conservation activities, 
is valuable. The designation of critical habitat may also strengthen or 
reinforce some Federal laws such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws.
    At FMC properties in both Arizona and New Mexico, FMC has helped 
fund flycatcher studies, cooperated with conducting status surveys, and 
coordinated with the flycatcher technical recovery team. The 
implementation of the Clean Water Act was a catalyst in generating 
flycatcher habitat along Pinal Creek. But now, because of FMC's 
existing conservation awareness and implementation of conservation 
actions, we believe there is little educational benefit or support for 
other environmental laws and regulations attributable to flycatcher 
critical habitat beyond those achieved from listing the species under 
the Act and FMC's continued conservation efforts.
    Overall, the benefits of designating flycatcher critical habitat 
within FMC's privately owned lands along Pinal Creek are minimal. FMC 
and other managing agencies are aware of the occurrence of the 
flycatcher along Pinal Creek; therefore the educational benefits and 
support for implementation of other environmental laws and regulations 
from a critical habitat designation is minimized. Because this land is 
privately owned and is the target of environmental clean-up and habitat 
management improvements, there is little likelihood of Federal actions 
occurring and interfering with these efforts. Additionally, FMC has a 
long-term commitment to environmental clean-up and land management 
actions that helped create habitat to support flycatcher territories. 
Therefore, the incremental benefits of a flycatcher critical habitat 
designation along Pinal Creek would be minimal.
Benefits of Exclusion--Pinal Creek
    A considerable benefit from excluding FMC-owned Pinal Creek lands 
as flycatcher critical habitat is the maintenance and strengthening of 
ongoing conservation partnerships. FMC has demonstrated a partnership 
with the Service by becoming a conservation partner in the development 
and implementation of the Recovery Plan, and by solidifying their 
conservation actions in management plans submitted to us for the 
flycatcher along the upper Gila River at the U-Bar Ranch in New Mexico 
(see below) and for the spikedace and loach minnow (2007 and 2011). 
They have also have demonstrated a willingness to conserve flycatchers 
and the flycatcher habitat at Pinal Creek and to partner with us by 
exploring the initial stages of a habitat conservation plan.
    The success of FMC's management is demonstrated in the development 
of riparian areas that provide habitat for nesting flycatchers. 
Additional evidence of the partnership between FMC and the Service is 
shown by FMC's commitment to provide for adaptive management, such that 
if future flycatcher surveys and habitat monitoring detect significant 
positive or negative changes in the numbers of nesting flycatchers or 
in key habitat parameters, they will confer with the Service regarding 
the impacts of such changes and will adopt alternative conservation 
measures to promote flycatcher habitat. Exclusion of this area from the 
designation will maintain and strengthen the partnership between the 
Service and FMC.
    Our collaborative relationship with FMC makes a difference in our 
partnership with the numerous stakeholders involved with flycatcher 
management and recovery and influences our ability to form partnerships 
with others. Concerns over perceived added regulation potentially 
imposed by critical habitat could harm this collaborative relationship.
    Because so many important areas with flycatcher habitat occur on 
private lands, collaborative relationships with private landowners will 
be essential in order to recover the flycatcher. The flycatcher and its 
habitat are expected to benefit substantially from voluntary landowner 
management actions that implement appropriate and effective 
conservation strategies. The conservation benefits of critical habitat 
are primarily regulatory or prohibitive in nature. Where consistent 
with the discretion provided by the Act, the Service believes it is 
necessary to implement policies that provide positive incentives to 
private landowners to voluntarily conserve natural resources and that 
remove or reduce disincentives to conservation (Wilcove et al. 1996, 1-
15; Bean 2002, 1-7). Thus, we believe it is essential for the 
flycatcher recovery to build on continued conservation activities such 
as these with a proven partner, and to provide positive incentives for 
other private landowners who might be considering implementing 
voluntary conservation activities, but who have concerns about 
incurring incidental regulatory or economic impacts.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Pinal 
Creek
    We have determined that the benefits of exclusion of Pinal Creek on 
private lands managed by FMC, with the implementation of their 
management plan, outweigh the benefits of inclusion, and will not 
result in extinction of the flycatcher because current management 
efforts maintain the physical or biological features necessary to 
develop, maintain, recycle, and protect essential habitat essential for 
flycatcher conservation. In making this finding, we have weighed the 
benefits of exclusion

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against the benefits of including these lands as critical habitat.
    We believe past, present, and future coordination with FMC has 
provided and will continue to provide sufficient education regarding 
flycatcher habitat conservation needs on these lands, such that there 
would be minimal additional educational benefit from designation of 
critical habitat. Further, because any potential impacts to flycatcher 
habitat from future projects with a Federal nexus will be addressed 
through a section 7 consultation with the Service under the jeopardy 
standard, we believe that the incremental conservation and regulatory 
benefit of designated critical habitat on FMC-owned lands would largely 
be redundant with the combined benefits of listing and existing 
management. Therefore, the incremental conservation and regulatory 
benefits of designating critical habitat on FMC lands along Pinal Creek 
are minimal.
    The benefits of designating critical habitat for the flycatcher 
along Pinal Creek are relatively small in comparison to the benefits of 
exclusion. The operation of the Lower Pinal Creek Treatment Plant 
remedial activities, long-term land management commitments, and 
continuation of a conservation partnership will continue to help foster 
the maintenance and development of flycatcher habitat. We anticipate 
that greater flycatcher conservation can be achieved through these 
management actions and relationships than through implementation of 
critical habitat designation on a project-by-project basis on private 
land where the occurrence of implementation of critical habitat 
designation due to federal funding or permitting is anticipated to be 
rare.
    On the other hand, the benefits of excluding FMC-owned lands along 
Pinal Creek from critical habitat are considerable. FMC's management 
plan establishes a framework for cooperation and coordination with the 
Service in connection with resource management activities based on 
adaptive management principles. Most importantly, the management plan 
indicates a continuing commitment to ongoing management that has 
resulted in nesting flycatcher habitat. Exclusion of these lands from 
critical habitat will help preserve and strengthen the conservation 
partnership we have developed with FMC, reinforce those we are building 
with other entities, and foster future partnerships and development of 
management plans whereas inclusion will negatively impact our 
relationships with FMC and other existing or future partners. We are 
committed to working with FMC to further flycatcher conservation and 
other endangered and threatened species. FMC will continue to implement 
their management plans and play an active role to protect flycatchers 
and their habitat. Therefore, in consideration of the relevant impact 
to our partnership with FMC, and the ongoing conservation management 
practices of FMC, we determined that the significant benefits of 
exclusion outweigh the benefits of inclusion in the critical habitat 
designation.
    After weighing the benefits of including as flycatcher critical 
habitat against the benefit of exclusion, we have concluded that the 
benefits of excluding the approximate 5.8 km (3.6 mi) of Pinal Creek 
with long-term FMC management commitments outweigh those that would 
result from designating this area as critical habitat. We have 
therefore excluded these lands from this final critical habitat 
designation pursuant to section 4(b)(2) of the Act.
Exclusion Will Not Result in Extinction of the Species--Pinal Creek
    We also find that the exclusion of these lands will not lead to the 
extinction of the flycatcher, nor hinder its recovery because long-term 
FMC water and land management commitments will ensure the long-term 
persistence and protection of flycatcher habitat at Pinal Creek. While 
future section 7 consultations along this Pinal Creek are likely to be 
rare, the jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
due to the occurrence of flycatchers on this property provide 
assurances that the flycatcher will not go extinct as a result of 
excluding these lands from the critical habitat designation.
Upper Gila Management Unit
Freeport McMoRan U-Bar Ranch Management Plan
    FMC owns the U-Bar Ranch (Ranch) near the Town of Cliff, in Grant 
County, New Mexico, within the Upper Gila Management Area. This 
property was formerly owned by Phelps Dodge mining company. Through FMC 
and their long-time lessee, Mr. David Ogilvie, FMC has developed a 
Flycatcher Management Plan (Management Plan) for the Ranch which 
formalizes a long-term commitment and describes management practices to 
conserve one of the largest known flycatcher population's across its 
breeding range over the past decade (FMC 2012a, entire). In addition, 
FMC's Management Plan is intended to establish a framework for 
cooperation and coordination with the Service in connection with future 
resource management activities based on adaptive management principles, 
including, if necessary, the development of additional flycatcher 
conservation measures in coordination with the Service at a total cost 
of up to $500,000. We proposed a 13.8-km (8.6-mi) segment of the Gila 
River along FMC's Ranch as flycatcher critical habitat.
    Flycatcher territories have been detected along the Gila River and 
the Upper Gila Management Unit since 1993. The distribution and 
configuration of flycatcher habitat is unique at the Ranch, with many 
of the territories found in the canopies of mature boxelder trees 
located along irrigation ditches outside of the river channel. At no 
other location throughout their breeding range do flycatchers nest 
nearly 20 m (60 feet) above the ground. In 1999, a high of 262 
territories at 8 sites were detected along this portion of the upper 
Gila River; the Ranch had 209 of these territories. In 2003, 191 
territories at 8 sites were detected on the Gila River stream segments 
proposed as critical habitat and the Ranch had 123 of these 
territories. In 2011, this area had 174 territories, and it remains an 
important site for the conservation and recovery of the flycatcher in 
the Upper Gila Management Area.
    Because the Ranch is a working cattle and farming ranch, the 
management of cattle is a primary component of their Management Plan. 
Eight pastures that incorporate approximately 1,372 ha (3,390 ac) are 
managed annually for operation of livestock and farming enterprises. 
The management consists of a multifaceted and highly flexible rest-
rotation system utilizing both native forage and irrigated fields, that 
can be modified based upon current conditions. Grazing use of river 
bottom pastures is monitored by daily visual inspections. Use of these 
pastures is limited to ensure that forage utilization levels are 
moderate and over-use does not occur. In addition, the riparian areas 
are monitored regularly, and riparian vegetation is allowed to 
propagate along the river as well as in irrigation ditches.
    Some specific management practices, varying in different pastures, 
which relate to the flycatcher and its habitat are: (1) Grazing is 
limited to November through April to reduce impacts to vegetation and 
avoid negative impacts during migration and nesting season; (2) animal 
units are adjusted to protect and maintain the riparian vegetation 
needed by the flycatcher; (3) the irrigation ditches are maintained, 
along with the vegetation, to benefit the flycatcher; (4)

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habitat management efforts follow flood events that destroy habitat; 
and (5) herbicide and pesticides are only used in rare circumstances 
and are not used near flycatcher territories during breeding season. 
Because much of the vegetation the flycatcher uses is located high 
above the ground in mature trees above the influence of cattle grazing, 
this provides greater compatibility of ranch operations and the 
maintenance of overstory flycatcher habitat. These flexible and 
adaptive management practices have resulted in the expansion, 
protection, and successful continuance of a large flycatcher 
population.
    In 1995, flooding impacted the Bennett Farm Fields in the 162-ha 
(400-ac) River Pasture. The Ranch then implemented the Bennett 
Restoration Project, a creation of a mosaic of different-aged 
vegetation with dense patches of young willows and cottonwoods 
occurring in manmade oxbows situated between irrigated and dry-land 
pastures and the Gila River. Water is continuously present and the 
project has become a marshy habitat that now supports one of the higher 
number of flycatcher territories on the Ranch. The 2004 and 2011 
surveys recorded 35 territories at the Bennett Restoration Site.
    The second-most successful nesting site on the Ranch is in the 
Lower River Pasture. A feature of this riparian area is the amount of 
water it receives from adjacent irrigated fields. The Ranch has 
rehydrated ditches and no longer follows past land-use practices, which 
involved active clearing of woody vegetation from ditch banks. The 
Ranch has developed tree growth and a network of riparian habitat in 
connection with the ditch-banks that attract breeding flycatchers.
    Besides implementing compatible land management practices, FMC and 
the Ranch have supported annual flycatcher surveys and research in the 
Gila valley since 1994. Surveyors are trained and permitted in 
coordination with the Service and survey results are submitted to the 
Service in annual reports. Flycatcher research on the Ranch has 
included: nest monitoring (sites, substrate, and success), diet, 
microhabitat use, climatic influences on breeding, cowbird parasitism, 
and distribution and characteristics of territories. Permits for 
studies are coordinated with the Service and reports are submitted to 
us for review and comment.
Benefits of Inclusion--U-Bar Ranch
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The U-Bar Ranch along the Gila River is known to be occupied by 
flycatchers and therefore, if a Federal action or permitting occurs, 
there is a catalyst for evaluation under section 7 of the Act. It is 
possible that in the future, Federal funding or permitting could occur 
on this privately owned and managed segment of the Ranch where a 
critical habitat designation may benefit flycatcher habitat. Because 
the Ranch is privately owned, only actions with a Federal nexus would 
result in an evaluation of critical habitat under section 7 of the Act. 
As discussed above, the principal benefit of any designated critical 
habitat is that activities affecting habitat require consultation under 
section 7 of the Act if a Federal action is involved. Such consultation 
would ensure that adequate protection is provided to avoid destruction 
or adverse modification of critical habitat. These actions would most 
likely occur from the Corps implementing the Clean Water Act, possibly 
Federal funding to help implement a cost-share project or grant 
funding, and maybe, less likely, actions occurring on the adjacent Gila 
National Forest. However, to date, we are not aware of any formal 
section 7 consultation that has occurred that addressed the flycatcher 
on the Ranch. Because of the Ranch's conservation actions in developing 
flycatcher habitat, the compatibility between existing ranch activities 
and flycatcher management, and their commitment to implement their 
Management Plan, it is unlikely that actions would be proposed that 
would alter the operation of this Ranch and the associated flycatcher 
habitat. Because of the lack of past section 7 consultations on this 
privately owned Ranch, the reduced likelihood of future federal actions 
altering the current management that supports flycatcher habitat, the 
presence of flycatcher territories, and the commitment to continue 
implementing land management actions that maintain flycatcher habitat, 
the benefits of a critical habitat designation on the Ranch are 
minimized.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the flycatcher that reaches 
a wide audience, including parties engaged in conservation activities, 
is valuable. The designation of critical habitat may also strengthen or 
reinforce some Federal laws such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws
    At FMC properties in both Arizona and New Mexico, FMC has helped 
fund flycatcher studies, cooperated with conducting status surveys, and 
coordinated with the flycatcher technical recovery team. Because of 
FMC's existing conservation awareness and implementation of 
conservation actions, we believe there is little educational benefit or 
support for other environmental laws and regulations attributable to 
flycatcher critical habitat beyond those achieved from listing the 
species under the Act and FMC's continued Ranch conservation efforts.
Benefits of Exclusion--U-Bar Ranch
    A considerable benefit from excluding FMC-owned Ranch lands as 
flycatcher critical habitat is the maintenance and strengthening of 
ongoing conservation partnerships. FMC has demonstrated a partnership 
with the Service by participating in the development and implementation 
of the Recovery Plan, and by solidifying their conservation actions in 
management plans submitted to us for the flycatcher at the Ranch (2005 
and 2012) and Pinal Creek in Arizona (2012), and for the spikedace and 
loach minnow (2007 and 2011). They have also have demonstrated a 
willingness and commitment to conserve the flycatchers and the 
flycatcher habitat at the Ranch with potential financial contribution 
of up to $500,000.
    The success of the Ranch's management is demonstrated in the 
maintenance of off-channel habitat and continued management and 
creation of other riparian areas that provide flycatcher nesting 
habitat. While the number of flycatcher territories can fluctuate over 
time, this area has consistently maintained a large number, typically 
exceeding 100 and in some years just over 250 territories. The Ranch 
continues to survey and evaluate territory numbers and share that 
important information with the Service.

[[Page 434]]

Understanding the distribution and abundance of flycatcher territories 
is a key component to tracking recovery of the flycatcher. Exclusion of 
this area from the designation will maintain and strengthen the 
partnership between the Service and FMC.
    Our collaborative relationship with FMC makes a difference in our 
partnership with the numerous stakeholders involved with flycatcher 
management and recovery, and influences our ability to form 
partnerships with others. Concerns over perceived added regulation 
potentially imposed by critical habitat could harm this collaborative 
relationship.
    Because so many important areas with flycatcher habitat occur on 
private lands, collaborative relationships with private landowners will 
be essential in order to recover the flycatcher. The flycatcher and its 
habitat are expected to benefit substantially from voluntary landowner 
management actions that implement appropriate and effective 
conservation strategies. The conservation benefits of critical habitat 
are primarily regulatory or prohibitive in nature. Where consistent 
with the discretion provided by the Act, the Service believes it is 
necessary to implement policies that provide positive incentives to 
private landowners to voluntarily conserve natural resources and that 
remove or reduce disincentives to conservation (Wilcove et al. 1996, 1-
15; Bean 2002, 1-7). Thus, we believe it is essential for the 
flycatcher recovery to build on continued conservation activities such 
as these with a proven partner, and to provide positive incentives for 
other private landowners who might be considering implementing 
voluntary conservation activities, but have concerns about incurring 
incidental regulatory or economic impacts.
Weighing Benefits of Exclusion Against the Benefits of Inclusion--U-Bar 
Ranch
    We have determined that the benefits of exclusion of the Ranch on 
private lands managed by FMC along the Gila River in New Mexico, with 
the implementation of their management plan, outweigh the benefits of 
inclusion, and will not result in extinction of the flycatcher because 
current management and conservation efforts maintain the unique off-
channel habitat and the physical or biological features necessary to 
develop, maintain, recycle, and protect flycatcher habitat essential to 
its conservation. In making this finding, we have weighed the benefits 
of exclusion against the benefits of including these lands as critical 
habitat.
    We believe past, present, and future coordination with FMC and the 
Ranch has provided and will continue to provide sufficient education 
regarding flycatcher habitat conservation needs on these lands, such 
that there would be minimal additional educational benefit from 
designation of critical habitat. Further, because any potential impacts 
to flycatcher habitat from future projects with a Federal nexus will be 
addressed through a section 7 consultation with the Service under the 
jeopardy standard, we believe that the incremental conservation and 
regulatory benefit of designated critical habitat on FMC-owned Ranch 
lands would largely be redundant with the combined benefits of listing 
and existing management. Therefore, the incremental conservation and 
regulatory benefits of designating critical habitat on FMC lands at the 
Ranch are minimal.
    The benefits of designating critical habitat for the flycatcher at 
the Ranch are relatively small in comparison to the benefits of 
exclusion. The existing and long-term land management commitments and 
continuation of a conservation partnership will continue to foster the 
maintenance and development of flycatcher habitat and flow of important 
recovery information. We anticipate that greater flycatcher 
conservation can be achieved through these management actions and 
relationships than through implementation of critical habitat 
designation on a project-by-project basis on private land where the 
occurrence of implementation of critical habitat designation due to 
federal funding or permitting is anticipated to be rare.
    On the other hand, the benefits of excluding FMC-owned Ranch lands 
along the Gila River from critical habitat are considerable. FMC and 
the Ranch's management plan establishes a framework for cooperation and 
coordination with the Service in connection with resource management 
activities based on adaptive management principles. Most importantly, 
the management plan indicates a continuing commitment to ongoing 
management that has resulted in nesting flycatcher habitat. Exclusion 
of these lands from critical habitat will help preserve and strengthen 
the conservation partnership we have developed with FMC and the Ranch, 
reinforce those we are building with other entities, and foster future 
partnerships and development of management plans whereas inclusion will 
negatively impact our relationships with FMC and other existing or 
future partners. We are committed to working with FMC and the Ranch to 
further flycatcher conservation and other endangered and threatened 
species. FMC and the Ranch will continue to implement their management 
plans and play an active role to protect flycatchers and their habitat. 
Therefore, in consideration of the relevant impact to our partnership 
with FMC and the Ranch, and their ongoing conservation management 
practices, we determined that the significant benefits of exclusion 
outweigh the benefits of inclusion in the critical habitat designation.
    After weighing the benefits of including the Ranch along the Gila 
River as flycatcher critical habitat against the benefit of exclusion, 
we have concluded that the benefits of excluding the approximate 13.8-
km (8.6-mi) segment of the Gila River with long-term FMC management 
commitments outweigh those that would result from designating this area 
as critical habitat. We have therefore excluded these Ranch lands from 
this final critical habitat designation pursuant to section 4(b)(2) of 
the Act.
Exclusion Will Not Result in Extinction of the Species--U-Bar Ranch
    We also find that the exclusion of these Ranch lands will not lead 
to the extinction of the flycatcher, nor hinder its recovery because 
long-term FMC water and land management commitments will ensure the 
long-term persistence and protection of flycatcher habitat at the Ranch 
on the Gila River. While the expectation of abundant future section 7 
consultations at Ranch are likely to be rare, the jeopardy standard of 
section 7 of the Act and routine implementation of conservation 
measures through the section 7 process due to the occurrence of 
flycatchers on this property provide assurances that the flycatcher 
will not go extinct as a result of excluding these lands from the 
critical habitat designation.
San Carlos Reservoir
    We proposed 26.8 km (16.6 mi) of the Gila River within the 
conservation space of San Carlos Reservoir, impounded by Coolidge Dam, 
as critical habitat for the flycatcher. Coolidge Dam and the San Carlos 
Reservoir lake bottom (up to elevation 773 m, 2,535 ft) are located on 
Federal land within Pinal, Gila, and Graham Counties, Arizona (Service 
2004c, p. 4). The BIA owns the San Carlos Reservoir land in fee simple 
title as the owner and operator of the San Carlos Irrigation Project. 
The Federal Government purchased the land for the Coolidge Dam site 
from the San Carlos Apache Tribe. Consequently, the dam sits on federal 
property, but lies within

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the confines of the San Carlos Apache Reservation.
    At the time of publication of our proposed rule (76 FR 50542, 
August 15, 2011, p. 50593) the land ownership of the conservation space 
of San Carlos Reservoir was mistakenly described as San Carlos Apache 
tribal land, and this was reflected in documents made available to the 
public for comment. The draft economic analysis prepared by Industrial 
Economics, Inc., discussed ownership and operation of the Reservoir by 
the BIA for the purposes of providing irrigation water to the GRIC and 
other downstream farmers. These ownership issues have been resolved 
with the help of public comments and our review of San Carlos Apache 
Tribe v. United States, 272 F. Supp. 2d 860 (D. Az. 2003), which 
discusses the Reservoir's creation and subsequent history.
    Coolidge Dam was constructed in 1929, for the purpose of storing 
water to be used for agricultural irrigation of lands in the Casa 
Grande Valley in central Arizona for the Pima and Maricopa Indians (now 
known as GRIC) and the non-Indian farmers living in the San Carlos 
Irrigation and Drainage District (SCIDD) (Service 2004c, p.4). The 
rights to the water stored in the Reservoir were determined through 
water rights litigation brought by the United States in 1925, and 
defined in 1935, by what is known as the Globe Equity Decree. Under the 
Globe Equity Decree, a Gila Water Commissioner is charged to operate a 
``call system'' that determines how much surface water each party to 
the Decree may use on any particular day, which determines whether 
water is to be stored in or released from the Reservoir. Coolidge Dam 
and the San Carlos Reservoir are operated by the BIA as part of the San 
Carlos Irrigation Project (SCIP), under the supervision of the Water 
Commissioner.
    Major inflows into San Carlos Reservoir are from the Gila and San 
Carlos Rivers. Water released from Coolidge Dam flows approximately 109 
km (68 mi) down the Gila River where it is diverted at the Ashurst-
Hayden Diversion Dam into the Florence-Casa Grande Canal, which 
ultimately delivers irrigation water to both GRIC and SCIDD lands 
through a series of lateral and sub-lateral canals (Service 2004c, p. 
4).
    When at full capacity, 1.07 cubic km (867,400 acre-feet) of water, 
San Carlos Reservoir can be one of the largest lakes in Arizona with 
254 km (158 mi) of shoreline. The conservation space of the reservoir 
is shallow, as a result, when full the stored water can spread over a 
very broad area. Irrigation demand and the seasonal, flashy nature of 
river flows produce reservoir levels that can fluctuate dramatically 
(USBR 2004, p. 12). However, the reservoir rarely fills to capacity; 
flood flows have filled the reservoir to capacity 8 times during 5 
years since storage began in 1928. Water levels have stayed above 0.06 
cubic km (50,000 acre-feet) in 29 of the last 67 years, while drawdown 
to less than one percent of capacity has occurred in 27 years during 
the same period (USBR 2004, p. 12). Total dry-up of the Reservoir was 
recorded 21 times in 12 years between 1945 and 1972 (USBR 2004, p. 12). 
Since the onset of drought beginning in the mid-1990s, and especially 
from the early 2000s, the conservation pool of the reservoir has 
typically been low--often around 5 percent capacity (USBR 2004, p. 12). 
In January 2004, the Reservoir had dropped to its lowest level in 26 
years (USBR 2004, p. 13). As a result, the Gila River often runs 
unaltered, and the reservoir are not inundated as a result of water 
storage through much of the conservation space of San Carlos Reservoir. 
Nevertheless, the conservation space within the Reservoir must remain 
open.
    Release of water from Coolidge Dam is dependent on irrigation 
demand, the availability of SCIP-owned stored water, and the amount of 
water flowing from the San Carlos and Gila Rivers (USBR 2004, p. 12). 
Chronic drought since 1999 had severely reduced inflows to the 
Reservoir and depleted supplies of stored water available to downstream 
irrigators (USBR 2004, p. 13). On a seasonal basis, these effects are 
most pronounced in the weeks preceding the summer monsoon, when 
irrigation demand is high and natural river flow is low (USBR 2004, p. 
13).
    River flows in the Southwest are typically appropriated, which 
means that individuals, corporations, and government entities own, 
within State and Federal law, the rights to withdraw and use the water 
within a specific set of allocations and priorities (Service 2004c, p. 
5). These rights may be bought and sold pursuant to State and Federal 
law. Such sales or exchanges are typically related to the use of water 
for municipal, industrial, or agricultural use, but there are certain 
instances wherein water may be purchased or exchanged for the benefit 
of fish and wildlife resources (Service 2004c, p. 5).
Status of the Flycatcher and San Carlos Reservoir
    Flycatcher population size and territory information is the 
proprietary information of the San Carlos Apache Tribe and are based 
upon surveys conducted by the San Carlos Apache Recreation and Wildlife 
Department since 2000 (Service 2004c, p. 13), with the support of USBR, 
AGFD, and USGS.
    As result of Coolidge Dam and San Carlos Reservoir occurring near 
the border of the upper Gila Management Unit and Middle Gila and San 
Pedro Management Units, their operation plays a role in the overall 
development, persistence, and recycling of flycatcher habitat (Service 
2004c, pp. 14-19). Similar to what occurs at other lakes in Arizona, 
such as Roosevelt and Horseshoe, Coolidge Dam can periodically store 
and release large amounts of water that can mimic flood flows within 
the lakebed, spreading water over a large area and stimulating the 
growth of abundant flycatcher habitat. Additionally, continuing to move 
water downstream, with periodic flooding, can help create and maintain 
flycatcher habitat. As of the most recent rangewide flycatcher report, 
these units contained 329 and 233 flycatcher territories on non-tribal 
land, respectively (Durst et al. 2008, p. 12). These numbers surpass 
the 325 (Upper Gila Management Unit) and 150 (Middle Gila and San Pedro 
Management Unit) numerical territory goals for each Management Unit. As 
of completion of USGS's 2007 Rangewide Report, the Gila River had the 
highest number of known breeding sites (50) and territories throughout 
the flycatcher's range (Durst et al. 2008, p. 11).
San Carlos Apache Tribe and Its Relationship to Waters in San Carlos 
Apache Reservation
    Prior to 1992, there was no intent established by the Globe Equity 
Decree or legislation that Coolidge Dam be operated for any purpose 
other than irrigation (USBR 2004, p. 5). However, the San Carlos Apache 
Water Rights Settlement Act of 1992 allows the Tribe to exchange its 
Central Arizona Project water allocation for irrigation water releases 
from San Carlos Reservoir, and grants the Tribe permission to store 
exchanged water in the Reservoir to maintain a permanent pool for fish, 
wildlife, and recreation (USBR 2004, p. 5). All such water exchanges 
must be authorized by the Gila River Commissioner after consultation 
with other parties to the Globe Equity Decree, and are subject to 
approval by USBR acting on behalf of the Secretary (USBR 2004, p. 5).
    The United States has an Indian trust responsibility to protect and 
maintain rights reserved by or granted to Indian tribes or individual 
Indians by treaties, statutes, and Executive Orders, which are 
sometimes further interpreted

[[Page 436]]

through court decisions and regulations. This trust responsibility 
requires all Federal agencies ensure their actions afford reasonable 
protection of Indian trust assets (USBR 2004, p. 37).
    A severe drawdown in 1990 was averted when Congress directed BIA to 
use SCIP power revenues to purchase 0.04 cubic km (30,000 acre-feet) of 
Central Arizona Project water (water diverted from the Colorado River 
and stored in Arizona) to exchange for San Carlos Reservoir water (USBR 
2004, p. 12). Regional drought in 1997 and from 1999 through 2003 
required additional water exchanges with SCIP users to establish and 
conserve a minimum pool (USBR 2004, p. 12).
    Federal land within San Carlos Reservoir is surrounded by the 
730,000 ha (1.8 million ac) of the San Carlos Apache Tribal 
Reservation. The BIA, who owns the lake bottom and operates Coolidge 
Dam, does not administer a permit, recreation, or access program for 
these Federal lands. Because recreationists must enter the San Carlos 
Apache Indian Reservation and acquire a recreation permit before 
reaching the San Carlos Reservoir lake bottom, access to the lakebed is 
largely regulated by the San Carlos Apache Tribe. The San Carlos Apache 
Tribe Recreation and Wildlife Department (SCATRWD) administers 
recreational use permits on San Carlos Apache tribal lands (SCATRWD 
2009, entire). The SCATRWD describes specific numbered areas or units 
of their land where their various rules and regulations apply. A 
recreation permit is required for non-tribal members to allow entry 
except for hunting and fishing (specific permits are required for those 
activities) (SCATRWD 2009, entire). The SCATRWD administers fishing 
licenses for San Carlos Reservoir, but does not include Federal land 
within the conservation space of San Carlos Reservoir within any of 
their units for other recreational uses. Other than a store and marina 
located closer toward Coolidge Dam and adjacent to the reservoir, no 
paved roads, developed camping areas, or other designed recreation 
centers are known to occur within the San Carlos Reservoir conservation 
space.
Proposed 2003 CAP Water Exchange With the San Carlos Apache Tribe
    USBR initiated consultation under section 7 of the Act with the 
Service on a proposed water exchange between the San Carlos Apache 
Tribe and the Central Arizona Project in 2003, and the Service 
completed a biological opinion (Service 2004c, entire). We concluded 
that stopping downstream Gila River flow in order to store more water 
at San Carlos Reservoir would result in incidental take of the bald 
eagle and the flycatcher downstream of Coolidge Dam due to impacts to 
their habitat (Service 2004c, pp. 42-44); however because of the short-
term nature of the impacts, the lack of water flowing from San Carlos 
Reservoir would not jeopardize either species (Service 2004c, pp. 19-
20, 30). Because of the small amount of water storage within the 
reservoir, no effects to either species using habitat along the Gila 
River within the conservation space of San Carlos Reservoir or water 
stored behind Coolidge Dam were anticipated to be affected by the 
relatively small amount of additional water stored (Service 2004c, p. 
17).
Gila River Riparian Areas Upstream of San Carlos Reservoir
    We also proposed 14.0 km (8.7 mi) of the Gila River upstream of the 
San Carlos Reservoir as flycatcher critical habitat. That portion of 
the Gila River is located on San Carlos Apache tribal land (see Tribal 
Management Plans below).
Benefits of Inclusion--San Carlos Reservoir
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Gila River is known to be occupied by flycatchers and 
therefore, if a Federal action or permitting occurs, there is a 
catalyst for evaluation under section 7 of the Act. Should we designate 
critical habitat along the Gila River on Federal land within the San 
Carlos Reservoir conservation space on Federal land, our section 7 
consultation history indicates that there may be some, but few 
regulatory benefits to the flycatcher. As described above, even with 
flycatchers occurring throughout this portion of the Gila River, the 
frequency of formal flycatcher-related section 7 consultations has been 
rare. Our records show that a single formal consultation on flycatchers 
occurred for actions associated with San Carlos Reservoir (Service 
2004c, entire). As mentioned above, this formal consultation with the 
USBR was a discretionary proposed water exchange, between the Central 
Arizona Project and the San Carlos Apache Tribe, to maintain a minimum 
pool in San Carlos Reservoir. The action, which never ended up 
occurring, would have led to the holding of water within San Carlos 
Reservoir to preserve the existing lake in exchange for the delivery of 
water to GRIC from the Central Arizona Project. As described above, we 
anticipated that while the action would result in short-term harm to 
the flycatcher, it would not result in jeopardy. Although this question 
has not been finally determined as a matter of law, the USBR's view is 
that because the San Carlos Reservoir and Coolidge Dam are owned and 
operated by the BIA solely for the benefit of SCIP water users (USBR 
2004, p. 37), the operation of Coolidge Dam to meet the irrigation 
demand of SCIP is a nondiscretionary function provided for under the 
San Carlos Project Act of 1924 and the Decree (USBR 2004, p. 37). 
Furthermore, the BIA has never initiated section 7 consultation on the 
effects to listed species caused by the operation of Coolidge Dam. 
Additionally, because the lakebed is meant for water storage, we do not 
anticipate other agencies implementing a significant amount of Federal 
actions that would conflict with its goal or that could be affected by 
dynamic water levels. For example, the Federal Highway Administration 
is expected to not develop any rights-of-way within the lake bottom, 
and the Corps is not anticipated to frequently issue any Clean Water 
Act permits for dredge-and-fill actions. To date, no projects requiring 
formal section 7 consultation have been initiated by these two agencies 
or other Federal agencies implementing actions within the San Carlos 
Reservoir lakebed. Therefore, with the intended use of the conservation 
space within San Carlos Reservoir for water storage; the preservation 
of the reservoir's conservation space as open space; the limited, on-
the-ground actions implemented by the BIA; the possibility that BIA dam 
operations are non-discretionary; and only a single formal section 7 
consultation initiated since the flycatcher was listed, we anticipate 
that there is little, if any, additional benefit of a critical habitat 
designation within San Carlos Reservoir.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the flycatcher that

[[Page 437]]

reaches a wide audience, including parties engaged in conservation 
activities, is valuable. The designation of critical habitat may also 
strengthen or reinforce some Federal laws such as the Clean Water Act. 
These laws analyze the potential for projects to significantly affect 
the environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws.
    At San Carlos Reservoir, the SCATRWD, along with support from USGS, 
AGFD, and the USBR have conducted flycatcher surveys. USBR in 
administering the Central Arizona Project and the BIA as Coolidge Dam 
operators are fully aware of the importance of San Carlos Reservoir and 
Coolidge Dam to flycatcher habitat and recovery due to their 
involvement in the water transfer described above. Because of this 
overall awareness by tribal, Federal, and State entities, we believe 
there is little educational benefit or support for other environmental 
laws and regulations attributable to flycatcher critical habitat beyond 
those achieved from listing the species under the Act.
Benefits of Exclusion--San Carlos Reservoir
    The benefits of excluding San Carlos Reservoir are unique because, 
while the San Carlos Reservoir lakebed is Federal land, it was acquired 
for the purpose of water storage for the GRIC. Additionally, San Carlos 
Reservoir has become an important part of the San Carlos Apache Tribe 
because it generates income through its recreational value, and nearby 
stores, lodging, and gaming facilities. Therefore, San Carlos Reservoir 
is a significant trust asset to both GRIC and the San Carlos Apache 
Tribe. As a result, the benefits from exclusion are more clearly 
attributed to our trust responsibility and overall conservation 
relationships with tribes. As a result, the benefits of excluding San 
Carlos Reservoir from designation of critical habitat primarily 
include: (1) The advancement of our Federal Indian Trust obligations; 
and (2) the maintenance of effective collaboration and cooperation to 
promote the conservation of the flycatcher and its habitat, and other 
species.
    During the development of the flycatcher critical habitat proposal 
(and coordination for other critical habitat proposals) and other 
efforts such as development of the Recovery Plan, we have met and 
communicated with various tribes, including GRIC and the San Carlos 
Apache Tribe to discuss how they might be affected by the regulations 
associated with flycatcher management, flycatcher recovery, and the 
designation of critical habitat. As such, we established relationships 
specific to flycatcher conservation. To further our conservation 
partnerships, we have provided technical assistance to tribes to 
develop measures to conserve the flycatcher and its habitat on their 
lands. While we did not propose any flycatcher critical habitat on GRIC 
lands, GRIC described their support for flycatcher recovery and the 
importance of the flycatcher to their traditions and culture (Lewis B. 
2011, entire). The San Carlos Apache Tribe submitted a Flycatcher 
Management Plan (SCATRWD 2012, entire). These proactive actions were 
conducted in accordance with Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2); and 
Secretarial Order 3317, ``Department of Interior Policy on Consultation 
with Indian Tribes'' (December 1, 2011). During our communication with 
these tribes, we recognized and endorsed their fundamental right to 
provide for tribal resource management activities, including those 
relating to riparian habitat.
    The designation of critical habitat on this piece of Federal land 
would be expected to adversely impact our working relationship with 
these tribes, because the San Carlos Reservoir lakebed supports the 
storage of water, an important tribal resource for both GRIC and the 
San Carlos Apache Tribe. During our discussions and in the comments we 
received from tribes and their representatives on the proposed 
designation of critical habitat, we were informed that critical habitat 
would be viewed as an intrusion on their sovereign abilities to manage 
natural resources in accordance with their own policies, customs, and 
laws, and in the case of GRIC, a potential impact to their federally 
mandated water deliveries. The perceived future restrictions (whether 
realized or not) of a critical habitat designation could have a 
damaging effect to coordination efforts, possibly preventing actions 
that might maintain, improve, or restore habitat for the flycatcher and 
other species. To this end, we found that tribes would prefer to work 
with us on a government-to-government basis. For these reasons, we 
believe that our working relationships with these tribes would be 
better maintained if the San Carlos Reservoir lakebed is excluded from 
the designation of flycatcher critical habitat. We view this as a 
substantial benefit since we have developed a cooperative working 
relationship with these tribes for the mutual benefit of flycatcher 
conservation and other endangered and threatened species.
    We indicated in the proposed rule that our final decision regarding 
the exclusions of tribal lands under section 4(b)(2) of the Act would 
consider tribal management and the recognition of their capability to 
appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (76 
FR 50542, August 15, 2011, p. 50584). As noted above, while the San 
Carlos Reservoir lakebed is Federal land, the purpose of this reservoir 
is to store water for the GRIC. Additionally, water storage supports 
wildlife, jobs, and the economy at San Carlos Apache tribal land. We 
also acknowledged our responsibilities to work directly with tribes in 
developing programs for healthy ecosystems, our need to remain 
sensitive to Indian culture, and to make information available to 
tribes (76 FR 50542, August 15, 2011, p. 50596).
    We coordinated and communicated with the San Carlos Apache Tribe 
throughout the revision of flycatcher critical habitat by providing 
them information on: Implementation of section 4(b)(2) of the Act; the 
Recovery Plan; Management Plan templates, guidance, and review; 
critical habitat schedules, related documents, and public hearings; and 
our interest in consulting with them on a government-to-government 
basis at their request. We also followed up our correspondence with 
telephone calls and electronic mail to assist with any questions. 
Because GRIC was not included within the areas proposed as critical 
habitat, the content of our coordination was not as detailed. However, 
we met with GRIC and discussed this unique situation with these Federal 
lands. During the comment period, we received input from many tribes 
noting that the beneficial cooperative working relationships between 
the Service and tribes have assisted in the conservation of listed 
species and other natural resources. GRIC representatives and the San 
Carlos Apache Tribe indicated that critical habitat designation on this 
Federal land would amount to additional regulation of tribal trust 
resources, and would be viewed as an unwarranted and unwanted. We 
conclude that our working relationships with these tribes on a 
government-to-government basis have been extremely beneficial in 
implementing natural resource programs of mutual interest,

[[Page 438]]

and that these productive relationships would be compromised by 
critical habitat designation at San Carlos Reservoir.
Benefits of Exclusion Outweigh the Benefits of Inclusion--San Carlos 
Reservoir
    The benefits of designating the Gila River within the San Carlos 
Reservoir lakebed as critical habitat are limited to the incremental 
benefits gained through the regulatory requirement to consult under 
section 7 and consideration of the need to avoid adverse modification 
of critical habitat, as well as agency and educational awareness, and 
implementation of other laws and regulations. However, as discussed in 
detail above, we believe these benefits are minimized because of the 
limitations of federal actions occurring within the conservation space 
of San Carlos Reservoir; the operation of Coolidge Dam that has allowed 
numerical flycatcher territory recovery goals to be achieved in the 
Management Units it influences; and the limited discretion BIA may have 
with Coolidge Dam operations.
    The benefits of excluding the San Carlos Reservoir lakebed from 
designation as flycatcher critical habitat also include the importance 
of our partnerships and tribal lands for flycatcher recovery and our 
responsibility to afford reasonable protection of Native American trust 
assets. While the lakebed of San Carlos Reservoir is Federal land, the 
water resources it supports are essential components to both the San 
Carlos Apache Tribe and GRIC. These tribes play an important 
partnership role in managing their lands for flycatcher recovery. 
Without their cooperation, land management, and ability to share 
information, achieving flycatcher recovery goals will become much more 
difficult. Our conservation partnership with tribes also includes the 
advancement and support of our Federal Indian Trust obligations and the 
maintenance of effective collaboration and cooperation to promote the 
conservation of the flycatcher and its habitat. In conclusion, we find 
that the benefits of excluding Federal land within the Gila River 
lakebed of San Carlos Reservoir from a flycatcher critical habitat 
designation outweigh the benefits of including these areas.
Exclusion Will Not Result in Extinction of the Species--San Carlos 
Reservoir
    The Secretary, under section 4(b)(2) of the Act may exclude areas 
from the critical habitat designation only if it is determined, ``based 
on the best scientific and commercial data available, that the failure 
to designate such area as critical habitat will result in the 
extinction of the species concerned.'' We have determined that 
exclusion of the Gila River within the San Carlos Reservoir lakebed 
from the critical habitat designation will not result in the extinction 
of the flycatcher. Discretionary Federal activities on these areas that 
may affect the flycatcher will still require consultation under section 
7 of the Act. Section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of listed species. 
Therefore, even without critical habitat designation on these lands, 
discretionary activities that occur on these lands cannot jeopardize 
the continued existence of the flycatcher.
    Although flycatchers are known to occur within and downstream of 
San Carlos Reservoir, our record demonstrates that formal section 7 
consultations rarely occur at San Carlos Reservoir. Because of the size 
of the San Carlos Reservoir conservation space and Coolidge Dam 
operations that mimic flood flows within the lake and deliver water 
downstream, the number of flycatcher territories has continued to 
remain high. Following the most recent rangewide assessment of the 
distribution and abundance of flycatcher territories, the Gila River 
upstream and downstream of San Carlos Reservoir supports the most 
number of breeding sites and flycatcher territories (over 550) 
throughout the flycatcher's range (Durst et al. 2008, p. 11). The most 
recent estimate of the number of territories exceeds those needed to 
reach recovery goals (Durst et al. 2008, p. 11). This has occurred 
while San Carlos Reservoir has not been previously been designated as 
critical habitat. Accordingly, we have determined that excluding San 
Carlos Reservoir will not result in the extinction of the flycatcher 
and that these Federal lands that were acquired to support a tribal 
trust resource should be excluded under subsection 4(b)(2) of the Act 
because the benefits of excluding these lands from critical habitat for 
the flycatcher outweigh the benefits of their inclusion, and the 
exclusion of these lands from the designation will not result in the 
extinction of the species.
San Carlos Apache Tribal Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
Hassayampa and Agua Fria Management Unit
City of Phoenix Safe Harbor Agreement for Tres Rios Ecosystem 
Restoration Site, Gila River
    The City of Phoenix, in cooperation with the Corps, has developed a 
Project Cooperation Agreement (PCA), and in partnership with the 
Service, are finalizing a Safe Harbor Agreement (SHA) for the Tres Rios 
Ecosystem Restoration Project along the Gila River in Maricopa County, 
Arizona. The Tres Rios Ecosystem Restoration site is downstream of the 
Salt River, Agua Fria, and Gila River confluence. The goal of these 
agreements is to maintain and enhance riparian and wetland habitat, and 
manage roads, trails, water delivery systems, flood control capacity, 
and storm water facilities within 375 ha (927 ac) of City of Phoenix 
owned land.
    Through the PCA the City of Phoenix signed with Corps in 2004, the 
Corps committed 6.2 million dollars towards project construction (which 
include riparian habitat and stream improvements), while the City of 
Phoenix committed to the long-term management of these habitats, 
including supplying treated wastewater at a cost of 1.3 million dollars 
annually. The SHA between the Service and the City of Phoenix 
establishes maintenance and management of these habitats for the 
conservation benefit of the flycatcher, without penalty under the Act. 
The initial stages of the habitat improvement project have already 
begun, and the notice of availability for public review of the draft 
SHA was published in the Federal Register on July 10, 2012 (77 FR 
40628), and the final is anticipated to be signed in the winter of 2012 
or 2013. The proposed term of the SHA is for a 50-year period.
    Prior to the development and initiation of these conservation 
efforts, the enrolled lands were owned and operated by private 
landowners for a variety of resource uses. Predominant uses included 
sand and gravel mining, agricultural uses, and residences. These 
activities, in addition to the interruption of the river's natural 
flood regime caused by upstream dams and diversions, have resulted in 
reduced quality and function of the river and associated riparian 
habitat. Flycatchers were detected within these private lands, but not 
with frequency. Some vegetation structurally suitable for nesting was 
present, but past land and water uses reduced the overall quality of 
riparian habitat. Between 1995 and 2003, individual migrant flycatchers 
were detected three times, and two

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territorial males were detected a single time.
    The enrolled lands are now owned by the City of Phoenix. The 
implementation of actions through the PCA by the Corps and the City of 
Phoenix and long-term habitat management by the City of Phoenix 
attempts to restore stream function, reliable water, and riparian 
vegetation to this segment of the Gila River. It also attempts to 
restore flood protection and passive recreation. Project construction 
within the Tres Rios area includes channel formation and habitat 
development. Improvements include creating wetland and riparian biotic 
communities, including mesquite bosque, cottonwood/willow forest, 
freshwater marsh, floodplain terrace, and open water. After the 
conservation measures are implemented, the lands will be managed with 
the primary goal of habitat conservation. Passive recreation activities 
will be managed with the goal of having minimal impact to the habitat.
Benefits of Inclusion--Tres Rios Ecosystem Restoration Site
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    Lands being evaluated for exclusion in this segment of the Gila 
River have been occupied by migrating and nesting flycatchers and are 
subject to section 7 consultation requirements of the Act under the 
jeopardy standard. The City of Phoenix owns and manages much of this 
reach of the Gila River. Because of the financial commitment by the 
Corps, the PCA between the Corps and City of Phoenix, and the upcoming 
SHA partnership with the Service, we do not anticipate there being many 
consultations along this section of river that would affect the long-
term success of this habitat improvement project. It is possible that 
other projects impacting non-federally owned areas within the Tres Rios 
Area such as the State of Arizona lands might require section 7 
consultation for effects to critical habitat if they require Federal 
permitting or use Federal funds. However, outside of the implementation 
of the stream and habitat restoration actions through the PCA, no other 
consultations have been initiated for this area since the flycatcher 
has been listed under the Act. Because of the lack of past section 7 
consultations in this area and the commitment by the City of Phoenix to 
improve and manage the Tres Rios Area, the benefit of implementing a 
critical habitat designation in this area through section 7 
consultations is limited.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    The City of Phoenix, during the development of the SHA has 
conducted flycatcher surveys along this segment. The Corps and AGFD are 
also involved in the Tres Rios Area and are aware of the importance of 
this segment for flycatcher recovery. The City of Phoenix has also 
participated with the Service as a stakeholder in the development of 
the Roosevelt Dam and Horseshoe and Bartlett Dam HCPs, where the 
flycatcher was a primary species of conservation. The AGFD has been 
regularly involved with flycatcher surveys, management, and research 
Statewide, including the Tres Rios Area. The listing of the flycatcher 
and development of the Tres Rios Area and associated SHA has caused the 
managing agencies in this area to be fully aware of the inclusion of 
the flycatcher in implementing other environmental laws and 
regulations. Because of the City of Phoenix, Corps, and AGFD's 
conservation awareness and implementation of conservation actions 
associated with their PCA and development of the SHA, we believe there 
are minimal educational benefits attributable to critical habitat 
beyond those achieved from listing the species under the Act and the 
City of Phoenix's continued conservation efforts.
    In summary, we do not believe that designating flycatcher critical 
habitat within the Tres Rios Ecosystem Restoration Area along the Gila 
River in Maricopa County, Arizona, will provide meaningful additional 
benefits. The City of Phoenix and Corps have a long-term commitment to 
implement habitat improvement and land and water management actions at 
Tres Rios, which are the types of actions recommended in the Recovery 
Plan to conserve the flycatcher. Because of these long-term stream and 
riparian habitat improvement commitments, we do not anticipate future 
federally funded actions reversing these habitat improvements. As a 
result of the habitat improvement goals of the Tres Rios Project, there 
is a low probability of mandatory elements arising from formal section 
7 consultations and therefore any outcome from a critical habitat 
designation would more likely result in discretionary conservation 
recommendations. We also believe that the informational benefits have 
already occurred through past actions and discussion of inclusion of 
the flycatcher within a SHA. Therefore, the incremental benefits of a 
flycatcher critical habitat designation for the Tres Rios Ecosystem 
Restoration Project would be minimal.
Benefits of Exclusion--Tres Rios Ecosystem Restoration Site
    A considerable benefit from excluding the Tres Rios Restoration 
Site as flycatcher critical habitat is the maintenance and 
strengthening of ongoing conservation partnerships. In addition to the 
effort for Tres Rios Area, the City of Phoenix has demonstrated a 
partnership with the Service by developing and implementing a different 
SHA with the Service for the Rio Salado Habitat Restoration Project. 
Through these processes, they have demonstrated a willingness to 
develop, maintain, and manage Gila River flycatcher habitat, as well as 
habitat for other listed species.
    The success of the City of Phoenix's riparian habitat management 
has yet to be realized because their project is just beginning; we 
estimate that it may take 5 years following implementation for 
flycatcher habitat to be established. The City of Phoenix's 
conservation strategy is a combination of water and land management 
actions that can be expected to maintain existing riparian habitat, 
reduce habitat stressors, and improve areas for nesting flycatchers. 
Overall, we expect greater flycatcher conservation through these 
commitments than through project-by-project evaluation implemented 
through a critical habitat designation.
    Our collaborative relationship with the City of Phoenix makes a 
difference in our partnership with the numerous stakeholders involved 
with flycatcher management and recovery and

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influences our ability to form partnerships with others. Additional 
evidence of the partnership between the City of Phoenix and the Service 
is shown by the City of Phoenix's willingness to agree to a long-term 
commitment, through implementation of the 50-year SHA, to assess 
habitat quality and survey flycatcher habitat on an annual basis. 
Concerns over perceived added regulation potentially imposed by 
critical habitat could harm this collaborative relationship. Exclusion 
of this area from the designation would maintain and strengthen the 
partnership between the Service and the City of Phoenix.
    Because so many important lands with flycatcher habitat occur on 
non-federal lands, collaborative relationships with these landowners 
will be essential in order to recover the flycatcher. The flycatcher 
and its habitat are expected to benefit substantially from voluntary 
landowner management actions that implement appropriate and effective 
conservation strategies. The conservation benefits of critical habitat 
are primarily regulatory or prohibitive in nature. Where consistent 
with the discretion provided by the Act, the Service believes it is 
necessary to implement policies that provide positive incentives to 
non-federal landowners to voluntarily conserve natural resources and 
that remove or reduce disincentives to conservation (Wilcove et al. 
1996, 1-15; Bean 2002, 1-7). Thus, we believe it is essential for 
flycatcher recovery to build on continued conservation activities such 
as these with a proven partner, and to provide positive incentives for 
other non-federal landowners who might be considering implementing 
voluntary conservation activities but have concerns about incurring 
incidental regulatory or economic impacts.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Tres Rios 
Ecosystem Restoration Site
    In reaching the conclusion that benefits of excluding lands within 
the Gila River Tres Rios Ecosystem Restoration Site managed by the City 
of Phoenix outweigh the benefits of inclusion as flycatcher critical 
habitat, we have weighed the benefits of including these lands as 
critical habitat with the implementation of their SHA management plan 
against the same situation without critical habitat.
    Including this Tres Rios Ecosystem Restoration segment of the Gila 
River as flycatcher critical habitat would result in minimal, if any 
additional incremental regulatory benefits to the flycatcher. The long-
term management commitments through their PCA and developing SHA 
support the conservation goals established in the Recovery Plan by 
creating and managing flycatcher habitat. The principal benefit of 
including an area in a critical habitat designation is the requirement 
for Federal agencies to ensure actions they fund, authorize, or carry 
out are not likely to result in the destruction or adverse modification 
of any designated critical habitat. Our flycatcher section 7 
consultation history shows that besides the implementation of this 
habitat restoration project, there have been no other flycatcher-
related consultations for this location. We expect to complete a 
consultation for the completion of SHA in the winter of 2012 or 2013. 
We have no information to anticipate this limited amount of 
consultation would change in the future. Based upon the limited number 
of previous consultations in the Tres Rios Area, combined with the 
long-term commitment to improve stream and riparian habitat conditions, 
we anticipate that any formal section 7 consultations conducted on 
critical habitat would likely result in discretionary conservation 
recommendations.
    We believe past, present, and future coordination with the City of 
Phoenix has provided and will continue to provide sufficient education 
regarding flycatcher habitat conservation needs on these lands, such 
that there would be minimal additional educational benefit or support 
of other laws and regulations from designation of critical habitat.
    On the other hand, the benefits of excluding Tres Rios Ecosystem 
Restoration portion of the Gila River from critical habitat are 
considerable. The City of Phoenix's developing SHA establishes a 
framework for cooperation and coordination with the Service in 
connection with resource management activities based on appropriate 
land and water management strategies described in the Recovery Plan. 
Exclusion of these lands from critical habitat will help preserve and 
strengthen the conservation partnership we have developed with the City 
of Phoenix, reinforce those we are building with other entities, and 
foster future partnerships and development of management plans. We are 
committed to working with the City of Phoenix to further flycatcher 
conservation and other endangered and threatened species. Therefore, in 
consideration of the relevant impact to our partnership with the City 
of Phoenix, and their anticipated fulfillment of a long-term commitment 
to implement conservation management practices, we determine that the 
benefits of exclusion outweigh the benefits of inclusion in the 
critical habitat designation.
    After weighing the benefits of including the Tres Rios Ecosystem 
Restoration Site along the Gila River as flycatcher critical habitat 
against the benefit of exclusion, we have concluded that the benefits 
of excluding this Gila River segment outweigh those that would result 
from designating this area as critical habitat. We have therefore 
excluded these lands from this final critical habitat designation 
pursuant to section 4(b)(2) of the Act.
Exclusion Will Not Result in Extinction of the Species--Tres Rios 
Ecosystem Restoration Site
    We find that the exclusion of the Gila River within the Tres Rios 
Ecosystem Restoration Site will not lead to the extinction of the 
flycatcher. The City of Phoenix has developed and committed through 
their PCA with the Corps to long-term management of this property for 
open space, and wildlife habitat and conservation. The City of 
Phoenix's developing SHA with the Service also commits to 50 years of 
land and water management to this habitat improvement project, and we 
anticipate the improved quality of riparian habitat will result in a 
conservation benefit for the flycatcher. Overall, we expect greater 
flycatcher conservation through these commitments than what could occur 
through project-by-project evaluation implemented through a critical 
habitat designation. As a result of the commitment toward flycatcher 
habitat improvement and conservation, we do not expect that exclusion 
will result in extinction of the flycatcher.
San Luis Valley Management Unit
San Luis Valley Conservation Partnerships and Habitat Conservation Plan
    Two flycatcher critical habitat segments were proposed in the San 
Luis Valley Management Unit in Colorado: a 159.4-km (99.0-mi) segment 
of the Rio Grande constituting about 23,330 ha (57,650 ac), and a 69.8-
km (43.4-mi) segment of the Conejos River constituting about 9,450 ha 
(23,352 ac) (76 FR 50542, August 15, 2011, p. 50576). The proposed 
critical habitat in the San Luis Valley included federal lands managed 
by the BLM and the Alamosa portion of the Alamosa, Monte Vista, and 
Baca NWR Complex. For the reasons explained below, we are excluding the 
non-Federal portions of proposed critical habitat (Rio Grande; 119.5 
km, 74.3 mi and Conejos River; 64.9 km, 40.4 mi) in the San Luis Valley

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Management Unit of the flycatcher based on conservation partnerships in 
the San Luis Valley evidenced by the newly completed San Luis Valley 
Regional Habitat Conservation Plan (SLVRHCP) and many additional 
conservation partnerships with numerous entities in the San Luis 
Valley. We are not excluding the federal lands within the San Luis 
Valley Management Unit.
San Luis Valley Regional Habitat Conservation Plan
    The species covered in the SLVRHCP are the flycatcher and a 
candidate species, the western U.S. distinct population segment of the 
yellow-billed cuckoo (Coccyzus americanus). The SLVRHCP covers nearly 
400 stream km (250 mi) constituting 1.17 million ha (2.9 million ac) 
and extends well beyond the stream segments on the Rio Grande and 
Conejos River that were proposed as critical habitat.
    The SLVRHCP covers three categories of activities: (1) Routine 
agriculture activities (grazing, fence construction and maintenance, 
ditch clearing and maintenance, water facility maintenance, new small-
scale water facility construction, and water management and 
administration); (2) small community infrastructure activities 
(vegetation removal from floodways, levee construction and maintenance, 
sediment removal, infrastructure construction, infrastructure 
maintenance, and road and bridge maintenance); and (3) riparian 
conservation and restoration activities (channel shaping and 
stabilization, habitat creation and restoration, weed management, and 
wetland creation and management). Large commercial or residential 
developments, large water development projects, sanitation or 
industrial water impoundments, new highway construction, and projects 
on non-Federal lands requiring a Federal permit are not covered by the 
SLVRHCP.
    The Service cooperated with the SLVRHCP permittees for 9 years in 
development and review of the SLVRHCP. The permit applicants include 
the Rio Grande Water Conservation District (District); Alamosa, 
Conejos, Costilla, Rio Grande, Mineral and Saguache Counties; the 
municipalities of Alamosa, Del Norte, Monte Vista, and South Fork; and 
the State of Colorado Department of Natural Resources. The State of 
Colorado received section 6 planning grants under the Act on behalf of 
the District in 2004, 2005, and 2009 for the District and their 
consultants to complete the HCP and associated documents. The District 
will be the administrator of the SLVRHCP, which was completed in 
November 2012.
    The covered activities are estimated to impact 123 ha (304 ac) that 
will be mitigated at a 1:1 ratio by the applicants. Mitigation will be 
in the form of conservation easements, habitat restoration and 
enhancements, and management agreements. The majority of covered 
activities are expected to impact narrow habitat patches or otherwise 
marginal habitat for the flycatcher. Consequently, mitigation measures 
will conserve, restore, or enhance habitat to a higher quality for 
flycatchers than the impacted habitat. This mitigation strategy will 
provide riparian habitat essential to maintaining all physical or 
biological features or primary constituent elements necessary to 
sustain flycatcher populations.
    As part of implementing the SLVRHCP, the District will actively 
provide outreach to landowners, local communities, private and public 
utilities, and other stakeholders to provide them with the information 
and tools to develop an understanding of this SLVRHCP. Outreach 
objectives include explaining the benefits to landowners and the 
community, reducing the long-term impacts of covered and non-covered 
activities on riparian habitat, and gaining support for SLVRHCP 
mitigation programs. Significant outreach efforts are to be carried out 
by the District within the first 6 months of implementation of the 
SLVRHCP.
    Both compliance and effectiveness monitoring are built into the 
SLVRHCP. Valley-wide habitat monitoring as well as parcel-specific 
habitat monitoring and species monitoring will be conducted and will be 
used to determine if management needs to be adapted to successfully 
mitigate covered activities and maintain habitat into the future.
Additional San Luis Valley Conservation Partnerships
    This section describes the many ongoing conservation partnership 
efforts (in addition to the SLVRHCP) in the San Luis Valley that 
protect and enhance wetland and riparian habitat, and contribute to the 
conservation and enhancement of habitat for the flycatcher. In total, 
the conservation partnerships discussed below cover the entire San Luis 
Valley and the entire extent of the two proposed critical habitat 
units, except for the Federal lands discussed above. Combined, there 
are 2,950.4 ha (7,290.4 ac) of non-federal lands designated as critical 
habitat under conservation easements along the Rio Grande and 724. 4 ha 
(1,797.4 ac) under conservation easements for the Conejos River, 
comprising about 11.2 percent of non-federal lands included in the 
designation within the San Luis Valley. Additionally, there are 984.7 
ha (2,433.2 ac) of non-federal lands designated as critical habitat 
within State Wildlife Areas along the Rio Grande and 64.0 ha (158.1 ac) 
of the Conejos River within State Wildlife Areas, comprising about 3.2 
percent of the non-federal lands included within the designation within 
the San Luis Valley. Other conservation partnerships actions are 
described in the text below.
    The local communities of the San Luis Valley have a history of 
proactive and collaborative conservation dating back to the 
establishment of the Great Sand Dunes National Monument in 1932. These 
efforts have led to the establishment of the Alamosa and Monte Vista 
NWRs, local habitat protection efforts, numerous private conservation 
programs, and the acquisition of the Baca Ranch to allow the creation 
of the Baca NWR and Great Sand Dunes National Park and Preserve. The 
legacy of these ongoing efforts is found in the existing mosaic of 
protected lands that sustain the rare species such as the flycatcher in 
the San Luis Valley, and are enhanced through the SLVRHCP's strategic 
and collaborative conservation approach. In the following discussion, 
we describe ongoing conservation partnerships in four categories: 
conservation programs and initiatives, conservation easements, State 
Wildlife Areas, and riparian and wetlands restoration efforts.
Conservation Programs and Initiatives
Conservation Programs--San Luis Valley Wetlands Focus Area Committee
    The San Luis Valley Wetlands Focus Area Committee (WFAC) was formed 
as an advisory group to the Colorado Department of Wildlife, now 
Colorado Parks and Wildlife (CPW) in 1990. When the CPW created its 
Statewide Colorado Wetlands Program and Wetlands Initiative (now 
Wetland Wildlife Conservation Program), WFAC groups were formed within 
the San Luis Valley to provide a Valley-wide forum for wetlands and 
riparian conservation ideas and research, raise funds, and optimize 
collaboration and avoid duplication amongst conservation groups. The 
WFAC group includes several local conservation organizations: the 
Federal, State, and local land management and wildlife agencies; water 
and soil conservation districts; and numerous local farmers, ranchers, 
and interested citizens. Since a large

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extent of the Valley's water and wetlands are components of private 
agricultural operations, the WFAC works closely with private landowners 
to enhance and sustain wetlands and riparian areas. The collaborative 
work helps to conserve wetlands thus conserving essential riparian 
habitat for the flycatcher.
Conservation Programs--Rio Grande Initiative
    In 2006, the WFAC and the Rio Grande Headwaters Land Trust (RiGHT) 
began a focused effort to protect and improve riparian and wetland 
habitat on private lands along the Rio Grande by implementing 
conservation easements or other means. The Rio Grande Initiative is a 
partnership between RiGHT, Ducks Unlimited, The Nature Conservancy 
(TNC), the Colorado Cattleman's Agricultural Land Trust (CCALT), and 
others. The goal of the Rio Grande Initiative is to work with 
individual landowners to voluntarily protect land and habitat along the 
Rio Grande corridor (see Conservation Easements section below for more 
details).
    Since its initiation, the Rio Grande Initiative partners have 
raised more than $10 million dollars in Federal, State, and private 
funding and have protected over 18 properties and 5,504 ha (13,600 ac) 
of land along the Rio Grande, some of which is within proposed critical 
habitat. Notable conservation successes within the area proposed as 
flycatcher critical habitat area include the River Valley Ranch I (237 
ha, 585 ac) near the Rio Grande-Shriver-Wright SWA, the 415-ha (1,025-
ac) Gilmore Ranch near Alamosa, and the 1,352-ha (3,341-ac) Cross Arrow 
Ranch at the confluence of the Rio Grande and Conejos River. These 
conservation easements will conserve flycatcher habitat.
Conservation Programs--Rio Grande Natural Area
    On October 12, 1996, the Rio Grande Natural Area Act was signed 
into law (Pub. L.109-337; 16 U.S.C. 460). The Rio Grande Natural Area 
Act established conservation along a 53-km (33-mi) stretch of the Rio 
Grande from the southern boundary of the Alamosa NWR to the New Mexico 
State line, extending 0.4 km (0.25 mi) on either side of the river. The 
purpose of the Natural Area is to conserve, restore, and protect the 
natural, historic, cultural, scientific, scenic, wildlife, and 
recreational resources along the Rio Grande. The Natural Area includes 
about 4,000 ha (10,000 ac) of both Federal (BLM) and private land. With 
regards to proposed critical habitat, the Natural Area includes all 
38.9 km (24.2 mi) south of Alamosa NWR, which includes 17.5 km (10.8 
mi) of private land and 21.4 km (13.4 mi) of BLM land, constituting 
1,833.3 ha (4,530.2 ac) of proposed critical habitat.
    The Rio Grande Natural Area Act required assembly of a commission 
to facilitate implementation of the Natural Area Act. The Rio Grande 
Natural Area Commission is composed of nine members including the BLM 
Colorado State Director; Alamosa/Monte Vista/Baca NWR Complex Manager; 
representatives from the Colorado Division of Wildlife (CPW), Colorado 
Division of Water Resources, Rio Grande Water Conservation District; 
and four members of the public.
    The Natural Area Act also calls for the development of Natural Area 
Management Plans. The BLM and the Commission are preparing two 
management plans, one for BLM land and one for private lands. The 
Natural Area Act directs the management plans to include the following:
     Consideration of other Federal, State, and local plans.
     Measures that encourage county governments (Costilla and 
Conejos Counties) to adopt and implement land use policies that are 
consistent with the management of the Natural Area.
     Measures to encourage and assist private landowners in the 
Natural Area with the implementation of the management plan.
     A list of property that should be preserved, restored, 
managed, developed, maintained, or acquired to further the purposes of 
the natural area.
     Policies for resource management to protect the resources 
and natural values of the Natural Area.
    The Rio Grande Natural Area planning and implementation process 
will provide an additional framework for riparian habitat conservation 
and management along the Rio Grande, including the high-quality habitat 
areas south of the Alamosa NWR. Management of the Natural area serves 
to conserve flycatcher habitat in the area we proposed as critical 
habitat.
Conservation Easements
    Conservation easements are restrictions that landowners voluntarily 
place on their properties to protect environmental resources and 
restrict future development. Easements are generally held by a 
qualified conservation organization (for example a land trust) or 
Federal or local government entity, and are usually granted in 
perpetuity. Conservation easements allow continued private ownership 
and use of the land, subject to the specific parameters of the 
easement. Easement terms and management requirements vary between 
properties, and are developed on a case-by-case basis, although, at a 
minimum, the easements preclude development in riparian areas. Of the 
numerous conservation easements throughout the San Luis Valley, several 
include flycatcher habitat. The acreage of conservation easements 
within proposed flycatcher critical habitat is described above.
    As of July 2012, 9,087.8 ac (3,677.8 ha) of riparian habitat within 
proposed critical habitat was protected by conservation easements (ERO 
Resources Corporation 2012). Out of this acreage, 7,290.4 ac (2,950.4 
ha) is on the Rio Grande, and 1,797.4 (727.4 ha) is on the Conejos 
River. Protected riparian habitat within conservation easements on 
private lands constitutes about 11.2 percent of proposed critical 
habitat overall, or 12.7 percent on the Rio Grande and 7.7 percent on 
the Conejos River. These conservation easements provide long-term 
conservation flycatcher habitat in the areas where they occur. A 
further description of these conservation easement holders and the 
amount of land under easement is provided below.
Conservation Easements--Rio Grande Headwaters Land Trust (RiGHT)
    RiGHT focuses on the protection of agricultural land and water 
resources, and is the only locally based land trust that operates in 
the San Luis Valley. Priority areas include the Rio Grande corridor and 
the Rock Creek corridor to the west of the Monte Vista NWR. RiGHT has 
been the lead entity in the Rio Grande Initiative and holds easements 
on about 213.5 ha (527.6 ac) of land within proposed critical habitat.
Conservation Easements--Ducks Unlimited
    Ducks Unlimited currently holds easements on eight properties 
totaling about 225.5 ha (557.1 ac) within proposed critical habitat 
along the Rio Grande corridor. Ducks Unlimited is focusing on the Rio 
Grande corridor to protect its important wetland and riparian habitat 
and is a partner in the Rio Grande Initiative.
Conservation Easements--Other
    Other conservation easements also exist within proposed critical 
habitat. TNC holds an easement on about 400 ha (1,000 ac) of the 
Gilmore Ranch near Alamosa on the Rio Grande. As part of the Rio Grande 
Initiative, the Colorado Cattleman's Agricultural Land Trust holds a 
650-ha (1,600-ac) easement

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within proposed critical habitat in Rio Grande County on the Rio 
Grande. The Natural Resources Conservation Service has several existing 
and numerous potential conservation easements on a variety of 
properties providing riparian habitat in the Valley. Most of these 
easements and potential easements are along the Rio Grande between Del 
Norte and the Conejos River confluence. The existing conservation 
easements cover about 26.9 ha (66.5 ac) of land in proposed critical 
habitat.
State Wildlife Areas
    The State of Colorado has SWAs or other State lands that are 
covered under the SLVRHCP. SWAs are managed specifically for 
conservation of wildlife. SWA land within proposed critical habitat 
includes a total of 1,048.7 ha (2,591 ac), including 984.7 ha (2,433.2 
ac) on the Rio Grande (two SWAs) and 64.0 ha (158.1 ac) on the Conejos 
River (one SWA). CPW does not have any flycatcher-specific management 
plans in their SWA plans, but their goal is to keep the riparian and 
wetland habitat on the SWAs intact and functioning (Basagoitia 2012, 
pers. comm.). This management will provide benefits by conserving 
flycatcher habitat.
Riparian and Wetlands Restoration Efforts
Restoration--Rio Grande Headwaters Restoration Project
    The Rio Grande Headwaters Restoration Project (Restoration Project) 
has been active since 1999. In 2001, the Restoration Project completed 
a study to determine what was needed to improve the river. The focus of 
the study and restoration include the Rio Grande from the upstream 
corporate limit of the Town of South Fork, Colorado, to the Alamosa-
Conejos County line. In 2004, a Rio Grande Watershed Strategic Plan was 
developed to implement needs identified in the 2001 study. The 
Strategic Plan takes a comprehensive approach to the river's functions; 
its goals include maintaining or improving water quality, timing stream 
flows to mimic a natural hydrograph, improving the function and 
reliability of diversion structures, protecting the 100-year floodplain 
from flood damage and development impacts, maintaining or enhancing 
river function to provide recreation opportunity, complementing efforts 
of other agencies and groups, and seeking funding to implement the 
projects. The Restoration Project has raised over $2,000,000 in grants 
for six cost-share riparian stabilization projects at 29 sites within 
the area proposed as critical habitat. These efforts have culminated in 
over 8.1 km (5 mi) of habitat restoration that has benefited the 
flycatcher. A diversion replacement project within proposed critical 
habitat has recently been initiated that will benefit flycatcher 
habitat by restoring 600 m (2,000 feet) of riparian habitat and a 0.8-
ha (2-ac) wetland beneficial to the flycatcher (Rio Grande Headwaters 
Restoration Project 2012, entire).
Habitat Improvement--Partners for Fish and Wildlife
    The Service's Partners for Fish and Wildlife program (PFW) has 
supported habitat protection and enhancement efforts, including 
conservation easements and habitat improvement projects, on numerous 
properties in the San Luis Valley. The PFW program uses Federal money 
to help private landowners restore, enhance, and conserve important 
wildlife habitat. A major focus of this program in the San Luis Valley 
is on conservation of riparian habitats, primarily in areas north of 
the Town of Alamosa. The Service enters into contracts with landowners 
to provide financial assistance in exchange for specified conservation 
measures such as excluding grazing and fencing riparian areas. The 
lengths of the contracts vary from a few years to perpetual easements; 
most contracts are for 10 years.
    Within proposed critical habitat, PFW easements or contracts cover 
approximately 825.6 ha (2,040 ac), which includes 603 ha (1,490 ac) 
along the Rio Grande and 222.6 ha (550 ac) along the Conejos River. 
These projects typically involve habitat management efforts including 
riparian fencing, deferred grazing, and water control structures that 
allow for natural regeneration. Willow plantings are also conducted 
where warranted. Flycatcher habitat is conserved by these PFW 
agreements.
Benefits of Inclusion--San Luis Valley Conservation Partnerships
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    Because the flycatcher occurs within the Rio Grande and Conejos 
River corridors, project proponents with a Federal nexus would likely 
have to evaluate the impacts of their future projects under a section 7 
consultation using the jeopardy standard. The Corps, BLM, NRCS, and 
other Federal agencies have already addressed the flycatcher in past 
section 7 consultations concerning land management actions on federal 
and non-federal lands within the San Luis Valley. We expect these 
agencies would likely consult for future activities that would affect 
flycatcher critical habitat. These consultations are usually resolved 
at an ``informal'' level, as the Federal agencies typically design 
their projects to avoid adverse effects to the flycatcher. All of the 
area being considered for exclusion is either privately owned or is 
owned by a State or other non-Federal entity. In contrast to Federal 
lands, the occurrence of a federal nexus on private lands are less 
frequent and are typically more associated with site-specific actions 
permitted by the Corps or with project funding from the NRCS. As a 
result, this reduces the extent of the potential regulatory benefit of 
including these non-federal areas in the critical habitat designation. 
Therefore, in the case of the flycatcher habitat on non-Federal lands 
(State, local government, and private lands) in the San Luis Valley, we 
believe the incremental benefits of critical habitat designation are 
minimal when compared to the conservation and regulatory benefits 
already derived from the species being listed.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat for the flycatcher in the San Luis Valley may strengthen or 
reinforce some Federal laws such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws.
    The areas being excluded have a long history of conservation, 
including for the benefit of the flycatcher. Therefore, most landowners 
are already aware of the need for the conservation of the species and 
its habitat. In addition, the outreach efforts that are forthcoming 
from the SLVRHCP will provide an enhanced effort for public outreach to

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benefit flycatcher conservation. These existing and future outreach 
efforts minimize the educational benefits that would be gained by 
designating the areas as flycatcher critical habitat.
    In summary, we do not believe that designating flycatcher critical 
habitat within the non-Federal lands of the San Luis Valley along the 
Rio Grande and Conejos River in Colorado will provide meaningful 
additional benefits. There already exists long-term commitment to 
implement habitat improvement and land and water management actions in 
the San Luis Valley, which were recently reinforced with the SLVRHCP. 
The ongoing efforts are the types of actions recommended in the 
Recovery Plan to conserve the flycatcher. Because of these long-term 
stream and riparian habitat improvement commitments, we do not 
anticipate future federally funded actions reversing these habitat 
improvements. As a result of the ongoing habitat conservation efforts, 
there is a low probability of mandatory elements arising from formal 
section 7 consultations and, therefore, any outcome from a critical 
habitat designation would more likely result in discretionary 
conservation recommendations. We also believe that the informational 
benefits have already occurred through past actions and inclusion of 
the flycatcher within the SLVRHCP. Therefore, the incremental benefits 
of a flycatcher critical habitat designation for the San Luis Valley 
would be minimal.
Benefits of Exclusion--San Luis Valley Conservation Partnerships
    The proposed critical habitat segments on the Rio Grande and 
Conejos River have been the focus of conservation related activities 
for a number of years due to the species' listing, ongoing development 
of the SLVRHCP, and additional conservation partnerships in the area as 
described above. Excluding the non-Federal lands along the Rio Grande 
and the Conejos River in Colorado from the critical habitat designation 
will sustain and enhance the conservation partnerships between the 
Service and the applicants for the SLVRHCP. Both the District and the 
Conejos Water Conservancy District submitted public comment letters on 
the proposed critical habitat designation stating that designating 
critical habitat would harm these working relationships. The 
willingness of the District and other applicants to work with the 
Service through the SLVRHCP on ways to mitigate and manage habitat for 
the flycatcher will continue to reinforce incentives for conservation 
efforts and thus contribute towards achieving recovery of the 
flycatcher. We will also learn more about the status of the flycatcher 
on non-Federal lands through implementing the SLVRHCP, providing a 
basis to pursue further recovery actions such as habitat protection, 
restoration, and other beneficial management actions for the 
flycatcher. Without the SLVRHCP, we likely would not have access to 
private lands to conduct surveys if the land was designated as critical 
habitat.
    The efforts and funding to date in development of the SLVRHCP, as 
well as the history of conservation efforts through additional 
partnerships, demonstrate the commitments of the San Luis Valley 
residents to provide for flycatcher conservation and the growth and 
persistence of its habitat. A considerable benefit of excluding non-
Federal lands in the San Luis Valley as flycatcher critical habitat is 
the maintenance and strengthening of ongoing conservation partnerships. 
These partnerships benefit the flycatcher as well as habitat for other 
sensitive and non-listed species by providing opportunities for 
conservation, management, and restoration on non-Federal lands that 
would not exist absent these strong partnerships.
    The success of the CPW management on SWAs has resulted in 
flycatcher habitat protection and the occurrence of one of the largest 
nesting sites within the San Luis Valley Management Unit. Exclusion of 
SWAs or other State land from the designation would maintain, and 
strengthen the partnership between the Service and CPW.
    The flycatcher and its habitat are expected to benefit 
substantially from voluntary landowner management actions that 
implement appropriate and effective conservation strategies. The 
conservation benefits of critical habitat are primarily regulatory or 
prohibitive in nature. Where consistent with the discretion provided by 
the Act, the Service believes it is necessary to implement policies 
that provide positive incentives to non-Federal landowners and land 
managers to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1996, 1-15; Bean 
2002, 1-7). Thus, we believe it is essential for flycatcher recovery to 
build on continued conservation activities such as these with proven 
partners, and to provide positive incentives for other non-Federal land 
managers who might be considering implementing voluntary conservation 
activities but have concerns about incurring incidental regulatory or 
economic impacts.
The Benefits of Exclusion Outweigh the Benefits of Inclusion--San Luis 
Valley Conservation Partnerships
    The benefits of including the non-federal portions of the San Luis 
Valley critical habitat units in the designation are small and are 
outweighed by the regulatory, educational, and ancillary benefits 
already afforded through the SLVRHCP, CPW management, and partnership 
actions. The SLVRHCP provides for conservation and management of the 
areas that contain the physical or biological features essential to 
flycatcher conservation and will help achieve recovery of this species. 
Exclusion of these lands from critical habitat will help preserve the 
partnerships we have developed with the SLVRHCP applicants, other 
stakeholders, and project proponents and may foster future partnerships 
to the benefit of the flycatcher and other species. The SLVRHCP 
applicants and associated stakeholders have informed us that 
designating critical habitat within the SLVRHCP permit area will harm 
the working relationship created by the partnership and undermine the 
conservation efforts that are already underway. Thus, the San Luis 
Valley partnerships provide a greater benefit to the flycatcher than 
would be provided by designating critical habitat.
    After weighing the benefits of including the non-Federal lands 
along the Rio Grande and Conejos River as flycatcher critical habitat 
against the benefit of exclusion, we have concluded that the benefits 
of excluding these segments outweigh those benefits that would result 
from designating this area as critical habitat. We have therefore 
excluded these lands from this final critical habitat designation 
pursuant to section 4(b)(2) of the Act.
Exclusion Will Not Result in Extinction of the Species--San Luis Valley 
Conservation Partnerships
    We find that the exclusion of the non-Federal lands along the Rio 
Grande (119.5 km, 74.3 mi) and Conejos River (64.9 km, 40.4 mi) will 
not lead to the extinction of the flycatcher. The SLVRHCP has committed 
numerous entities to engage in management and conservation efforts that 
are expected to develop, maintain, and manage riparian habitat for the 
benefit of flycatchers. Overall, we expect greater flycatcher 
conservation through these commitments than what could occur through 
project-by-project evaluation implemented through a critical habitat 
designation. As a result of the commitment toward flycatcher habitat 
improvement and conservation, we do

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not expect that exclusion will result in extinction of the flycatcher.
Upper Rio Grande Management Unit
San Ildefonso Pueblo Management Plan
    Please see the end of this section for a discussion about tribes 
from the Little Colorado, San Juan, Verde, Upper Gila, and Upper Rio 
Grande Management Units that submitted Management Plans.
Santa Clara Pueblo Partnership
    Please see the end of this section for a discussion about our 
tribal conservation partnership from the Upper Rio Grande Management 
Unit.
San Juan Pueblo (Ohkay Owingeh) Partnership
    Please see the end of this section for a discussion about our 
tribal conservation partnership from the Upper Rio Grande Management 
Unit.
Lower Rio Grande Management Unit
Elephant Butte Irrigation District Canalization and Conservation 
Project
    In New Mexico, along the lower Rio Grande downstream of Caballo 
Dam, the Elephant Butte Irrigation District (EBID) and the El Paso 
County Water Improvement District No. 1 (EP1) manages the 
water from the Rio Grande stored in Elephant Butte Reservoir for 
agricultural use, and the International Boundary and Water Commission 
(IBWC) (a Federal Agency) is responsible for maintaining levees and 
channel irrigation facilities, and floodway management needed to 
deliver water from the Rio Grande to water rights holders downstream. 
Together, the EBID, EP1, and IBWC are planning a large-scale 
riparian habitat improvement project along the lower Rio Grande from 
Percha Dam to American Dam (termed the lower Rio Grande Elephant Butte 
Irrigation District Canalization and Conservation Project). Within this 
portion of the lower Rio Grande, we proposed a 74.2-km (46.1-mi) 
segment from Caballo Dam to Ft. Selden as flycatcher critical habitat.
    The lower Rio Grande south of Caballo Reservoir is managed by the 
IBWC, whose mission is to provide bi-national solutions to issues that 
arise during the application of United States-Mexico treaties regarding 
boundary demarcation, national ownership of waters, sanitation, water 
quality, and flood control in the border region. Water deliveries to 
downstream water users for irrigation and other purposes are managed by 
EBID (a quasi-municipal agency of the State of New Mexico). EBID 
operates, maintains, and owns the irrigation distribution system, which 
was constructed by the USBR including the canals, laterals, drains, 
waste-ways, operation and maintenance roads on both riverbanks, and 
structures. State statutes provide for the equitable distribution of 
water from the Elephant Butte Reservoir to all of its water users and 
generally govern how EBID operates and manages the water it provides to 
its users.
    Prior to the listing of the flycatcher, IBWC's management of the 
lower Rio Grande emphasized canalization to facilitate efficient water 
deliveries and flood control. As a result, the channel narrowed and 
degraded, with limited areas for overbank flooding to support expansive 
native riparian communities. The vast majority of floodplains, which 
would have formerly supported native riparian vegetation, including 
some flycatcher habitat, are now subject to substantial human impacts 
by agriculture, urbanization, recreation, vegetation encroachment and 
management, grazing, fire, and other stressors.
    The lower Rio Grande Canalization and Conservation Project includes 
30 riparian improvement sites, 12 of which are specifically designed to 
create flycatcher nesting habitat across 69 ha (171 ac). These habitat 
improvement sites are to be established by 2019. Additionally, the 
practice of mowing willow trees will cease, which should also add to 
the distribution and abundance of riparian vegetation. Plus, willow 
trees will be planted in areas with favorable hydrological conditions, 
and flycatcher surveys will occur, as will vegetation monitoring. 
Restoration efforts will also physically reconnect old river channels 
and lower incised banks to the main river channel where appropriate.
    As part of the Canalization and Conservation Project, IBWC will 
work with other partners to implement a flycatcher management plan for 
the lower reach of the Rio Grande that requires flycatcher habitat 
goals be maintained throughout the reach. The goal is to provide 
flycatcher habitat in the Lower Rio Grande Management Unit, while still 
delivering water, as required by IBWC and EBID. IBWC, USBR, 
EP1, and EBID, along with the San Andres NWR, New Mexico State 
Parks (NMSP), the New Mexico Interstate Stream Commission (ISC), and 
New Mexico Audubon have partnered to establish flycatcher habitat in 
this reach of the river. Several planting projects have placed hundreds 
of young cottonwood trees on the floodways between the levees. The 
concerted effort by multiple agencies and groups to improve habitat in 
this reach of the Rio Grande is already providing habitat benefits to 
the flycatcher.
    Although many organizations are currently partnering to implement 
flycatcher habitat improvement efforts, the key factor in creating and 
maintaining flycatcher habitat is the ability to periodically inundate 
the riparian vegetation with water from the Rio Grande. IBWC and other 
partners do not own the water rights necessary to provide water to the 
sites where restoration efforts are occurring. Therefore EBID and 
EP1 are voluntarily working with the National Fish and 
Wildlife Foundation (NFWF) to develop a water transaction program that 
will allow IBWC and other partners to purchase or lease water that can 
be used to flood flycatcher riparian habitat similar to an agricultural 
crop. Because of the importance of water to develop and maintain 
flycatcher habitat, participation by EBID is crucial to the continued 
habitat improvement of this river reach for the benefit of the 
flycatcher. The water transaction program by EBID will allow for a 
greater number of acres to become flycatcher habitat.
    The IBWC management plan will also manage flycatcher breeding 
habitat and implement measures to protect nesting sites from human 
disturbance during the breeding season, and protect against detrimental 
edge effects by not mowing willows in their right-of-ways. With 
riparian habitat restoration and the ability to provide water and 
protection to these sites, the recovery goals for the Lower Rio Grande 
Management Unit can be met.
    The number of flycatcher territories detected annually in this 
reach from 1993 to 2010 ranged from 0 to 9 (Durst et al. 2008; Service 
2012, pp. 33-34). The number of territories detected has been 
relatively stable; however fire and other vegetation changes likely 
reduced the quality habitat at Selden Canyon, as no detections were 
reported in 2010 (Service 2012a, p. 33-34).
    IBWC has sponsored recent flycatcher surveys along the lower Rio 
Grande (Blackburn 2010, p. 1-3; 2011, p. 1-4) resulting in an increase 
in the overall survey efforts, known breeding sites, and estimated 
total number of territories. Blackburn (2010, p. 1-3; 2011, p.1-4) 
identified additional territories on or near Bailey's Point Bar and 
near Crow Canyon. In 2012, a total of 25 territories were detected, 
enough to meet the numerical territory recovery goal in the Lower Rio 
Grande Management Unit (Hill, D. 2012, pers. comm.). This increase may 
reflect survey effort, as well as an increase in riparian habitat 
quality following the

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reduction of grazing and habitat mowing (SWCA Environmental Consultants 
2011, p. 16). Also, dispersal of flycatchers pioneering new breeding 
areas originating from the nearby large population from the Middle Rio 
Grande Management Unit may have also contributed.
Benefits of Inclusion--Canalization and Conservation Project
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Rio Grande within the Lower Rio Grande Management Unit area is 
known to be occupied by flycatchers and has undergone section 7 
consultation under the jeopardy standard related to the lower Rio 
Grande Elephant Butte Irrigation District Canalization and Conservation 
Project. There may be some minor benefits from the designation of 
critical habitat along the lower Rio Grande, primarily because it would 
require Federal agencies to perform additional review of their project 
implementation. While this area was not previously designated as 
flycatcher critical habitat, the IBWC (the primary federal agency 
affecting flycatcher habitat along the lower Rio Grande) has already 
undergone section 7 consultation under the jeopardy standard due to the 
occurrence of flycatchers along the lower Rio Grande. If this segment 
were designated as flycatcher critical habitat, IBWC would likely 
reinitiate consultation on their ongoing management responsibilities. 
Because one of the primary threats to the flycatcher is habitat loss 
and degradation, section 7 consultation process under the Act would 
evaluate effects of the action on flycatcher habitat. With the 
implementation of the flycatcher conservation actions included in the 
Canalization and Conservation Project, which are expected to result in 
more breeding habitat, territories, breeding pairs, and nesting 
success, we concluded the project would not jeopardize the flycatcher 
or adversely modify proposed critical habitat (Service 2012a, pp. 61-
62). We also concluded that these flycatcher conservation actions would 
support the habitat and territory goals established in the Recovery 
Plan. Any future federal projects implemented by other agencies with 
less prominent responsibilities along the lower Rio Grande, such as 
Federal Highway Administration, or from the BLM on surrounding lands, 
would require evaluation using the jeopardy standard under section 7 of 
the Act. However, because flycatchers occur along the lower Rio Grande 
and due to the long-term and extensive flycatcher habitat conservation 
benefits resulting from the EBID's Canalization and Conservation 
Project, the incremental benefits of designating critical habitat from 
Caballo Dam to Leasburg Dam are limited.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    We believe that there would be little educational and informational 
benefit gained from including the Lower Rio Grande within the 
designation because this area is well known as an important area for 
flycatcher management and recovery. For example, the collection of 
federal agencies and stakeholders integral to water and land management 
along the lower Rio Grande are involved in conducting flycatcher 
surveys, have previously initiated section 7 consultation, and have 
planned and are implementing flycatcher conservation actions. 
Consequently, we believe that the informational benefits and support 
for implementing other environment regulations have already occurred 
through past actions even though this area is not designated as 
critical habitat.
Benefits of Exclusion--Canalization and Conservation Project
    The benefits of excluding the lower Rio Grande between Caballo Dam 
to Leasburg from designated critical habitat include: (1) Continued and 
strengthened effective working relationships with IBWC, EBID, Audubon, 
and other stakeholders and partners; (2) meaningful collaboration 
toward flycatcher recovery; and (3) the development of a water 
transaction program that provides irrigation water to flycatcher 
restoration sites that might not otherwise occur. The restoration 
activities and conservation objectives created by IBWC and other non-
federal partners is currently meeting the flycatcher territory recovery 
goal component described in the Recovery Plan, and is expected, with 
improved water availability to vegetation, to meet the habitat-related 
recovery goal for this Management Unit.
    EBID's constituents view critical habitat designation as an 
intrusion on their abilities to manage their water rights. Through 
fostering a cooperative working relationship with EBID, IBWC and others 
conducting surveys and habitat monitoring, and undertaking habitat 
restoration and enhancement projects, are realizing flycatcher 
conservation benefits. Without EBID's support in carrying out these 
restoration efforts and implementing the water transaction program, 
significant conservation benefits to the flycatcher could be lost. For 
these reasons, we believe that fostering our working relationship with 
EBID and their constituents is important to maintain flycatcher 
conservation benefits.
    As a result of the amount of important flycatcher recovery areas 
located on private lands or with non-federal resources, proactive 
voluntary conservation efforts have and will continue to be important 
to achieve flycatcher recovery. As the water manager for the lower Rio 
Grande, EBID's willingness to participate and coordinate the water 
transaction program is crucial to creating successful flycatcher 
restoration sites. Their agreement to work with IBWC, NFWF, and others 
demonstrates that meaningful, collaborative, and cooperative work for 
the flycatcher and its habitat will continue within their jurisdiction. 
The development of the water transaction program may not occur if 
critical habitat were designated. Therefore, we believe that the 
results of these voluntary restoration activities will promote long-
term protection and conserve the flycatcher and its habitat within the 
lower Rio Grande Management Unit. The benefits of excluding this area 
from critical habitat will encourage the continued cooperation and 
development of the water transaction program, which will allow IBWC to 
provide water to the flycatcher restoration sites. If this area is 
designated as critical habitat, we believe it is unlikely that EBID's 
constituents will support the water transaction program.

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    Excluding the lower Rio Grande area that is within the jurisdiction 
of IBWC from the critical habitat designation will provide significant 
benefits to the flycatcher through sustaining and enhancing the working 
relationship between the Service, IBWC, EBID, and other stakeholders. 
The willingness of IBWC and EBID to work with the Service on innovative 
ways to manage the flycatcher and develop flycatcher habitat will 
reinforce our partnership, which is important in order to achieve 
flycatcher recovery. We can often achieve greater conservation through 
voluntary actions than through implementing a critical habitat 
regulation on a project-by-project basis.
    By excluding the Rio Grande south of Caballo Dam in New Mexico from 
critical habitat designation, we are also encouraging new partnerships 
with other landowners and jurisdictions to protect the flycatcher and 
other listed or sensitive species. We consider this voluntary 
partnership in conservation vital to our understanding of the status of 
species on non-Federal lands and necessary for us to implement recovery 
actions such as habitat protection and restoration, and beneficial 
management actions for species.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Canalization 
and Conservation Project
    We have reviewed and evaluated the lower Rio Grande from Caballo 
Dam to Leasburg Dam in New Mexico, and have concluded that the benefits 
of exclusion under section 4(b)(2) of the Act outweigh the benefits of 
including these areas as flycatcher critical habitat. The incremental 
regulatory benefits of including these lands within the critical 
habitat designation are minimized because the regulatory, educational, 
and ancillary benefits that would result from critical habitat 
designation are similar to the benefits already afforded through the 
IBWC management plan and protections associated with the listing of the 
flycatcher. The implementation of the IBWC collaborative conservation 
project provides for significant conservation, management, improvement, 
and protection of the physical or biological features essential to 
flycatcher conservation in order to achieve flycatcher recovery goals.
    The Service has created close partnerships through the development 
of IBWC's restoration plan, which incorporates protections and 
management objectives for the flycatcher and the habitat upon which it 
depends for breeding, sheltering, and foraging activities. The 
conservation strategy identified in IBWC's management plan, along with 
our close coordination with IBWC, EBID and other partners, addresses 
the identified threats to flycatchers and the geographical areas that 
contain the physical or biological features essential to its 
conservation.
    Exclusion of these lands from critical habitat will help preserve 
the partnerships we have developed with local jurisdictions and project 
proponents through the development and ongoing implementation of their 
conservation plan. These partnerships are focused on flycatcher 
conservation and securing conservation benefits that will lead to 
recovery. Furthermore, these partnerships aid in fostering future 
partnerships for the benefit of listed species that do not occur on 
Federal lands and thus are less likely to result in a section 7 
consultation. Because we now have a sustainable flycatcher population 
along the lower Rio Grande, we are relying on the conservation efforts 
of the many stakeholders to create, manage, and maintain flycatcher 
habitat to contribute to reaching recovery goals. We expect that the 
results of implementing these flycatcher conservation actions will 
generate benefits beyond those that could be achieved from project-by-
project evaluation through a critical habitat designation.
    The conservation gains to the flycatcher identified south of 
Caballo Dam are more beneficial than designation of critical habitat 
because of the development of the water transaction program. This 
explicit benefit will not be realized without EBID's voluntary 
participation. The water users (farmers), who are currently supportive 
of the restoration efforts in the southern reach of the Rio Grande, 
will be reluctant to continue participation in the conservation efforts 
if critical habitat is designated. It will be necessary for EBID's 
constituents to support the water transaction program, in order for it 
to be successful. If critical habitat is designated, the constituents 
are unlikely to support the efforts of the water transaction program. 
Our partnership, along with the biological opinion for IBWC's 
canalization project and restoration sites (which includes the 
flycatcher management plan and the water transaction program), ensures 
implementation of the protections and management actions identified 
within their plan. Therefore, the relative benefits of excluding 
critical habitat on these lands are substantial and outweigh the 
benefits of including the area as critical habitat.
    We have determined that the additional regulatory benefits of 
designating these occupied areas as flycatcher critical habitat are 
minimal. Furthermore, the conservation objectives identified by the 
IBWC Plan, in conjunction with our partnership with the EBID and 
others, will provide a greater benefit to the species than critical 
habitat designation. We also conclude that the educational and 
ancillary benefits of designating critical habitat for the flycatcher 
between Caballo and Leasburg Dams would be minor because of the 
partnership established between the Service and IBWC, and the 
management objectives identified in the biological assessment and 
biological opinion. Therefore, in consideration of the relevant impact 
to current and future partnerships, as summarized in the Benefits of 
Exclusion section above, we determined the significant benefits of 
exclusion outweigh the benefits of critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--Canalization 
and Conservation Project
    We determine that the exclusion of the lower Rio Grande between 
Caballo Dam and Leasburg Dam from the designation of critical habitat 
for the flycatcher will not result in extinction of the species because 
current conservation efforts under IBWC's restoration plan adequately 
protects the geographical areas containing the physical or biological 
features essential to flycatcher conservation. In our biological 
opinion, the Service determined that implementation of the IBWC 
Canalization and Conservation Project and associated flycatcher 
restoration plans was not likely to result in jeopardy to flycatcher or 
adversely modify proposed critical habitat (Service 2012a, pp. 61-62), 
and is likely to benefit the species. It is anticipated that the 
implementation of these projects will support reaching the flycatcher 
territory and habitat goals established in the Recovery Plan. 
Therefore, based on the benefits described above, we have determined 
that this exclusion will not result in the extinction of the 
flycatcher, and the Secretary is exercising his discretion under 
section 4(b)(2) of the Act to exclude the entire proposed segment of 
the lower Rio Grande from Caballo Dam to Leasburg Dam from this final 
critical habitat designation.
Tribal Management Plans
    In this section, we first provide an overview of the conservation 
actions described in the flycatcher management plans being implemented 
by the La Jolla and Rincon Band of Luise[ntilde]o Mission

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Indians in California; Navajo Nation in New Mexico and Utah; San Carlos 
Apache and Yavapai-Apache Tribes in Arizona; Southern Ute Tribe in 
Colorado; and Zuni and San Ildefonso Pueblos in New Mexico. These plans 
were either admitted to the supporting record during the open comment 
period for the proposed rule or were already part of our files and 
submitted during the development of the 2005 flycatcher critical 
habitat designation. Based upon our occupancy criteria for this rule, 
all of the streams identified on these tribal lands either are known to 
have flycatcher territories or are expected to be used by migrant 
flycatchers. After an introduction of the conservation efforts of each 
of these tribal lands, discussed in order of the Recovery and 
Management Units, we then collectively analyze the benefits of 
including the tribal lands within the critical habitat designation and 
the benefits of excluding these areas. We conclude with analysis 
comparing the benefits of inclusion with the benefits of exclusion of 
these tribal lands.
    The tribes (Hualapai, Chemehuevi, Fort Mojave, CRIT, and Quechan--
Fort Yuma) included in the planning area for the LCR MSCP are discussed 
above within the evaluation of the LCR MSCP for exclusion under section 
4(b)(2) of the Act.
Coastal California Recovery Unit, San Diego Management Unit
La Jolla Band of Luise[ntilde]o Mission Indians
    The La Jolla Band of Luise[ntilde]o Indians Reservation is located 
in northern San Diego County, California, in the San Diego Management 
Unit, and contains an approximately 11.6-km (7.2-mi) stream segment 
along the San Luis Rey River that was proposed as flycatcher critical 
habitat. The La Jolla Band of Luise[ntilde]o Indians completed a 
Flycatcher Management Plan (La Jolla Band of Luise[ntilde]o Indians 
2005, entire) and confirmed through their letter submitted during the 
proposal's comment period that the plan has ongoing implementation.
    The La Jolla Band of Luise[ntilde]o Indians' Flycatcher Management 
Plan provides guidelines for the protection and management of 
flycatcher habitat. The Tribe's Flycatcher Management Plan describes a 
collection of measures, protections, and efforts they are and will be 
undertaking to protect flycatcher riparian habitat which includes: (1) 
Maintaining permanent staff to address environmental issues, of which a 
Master's level biologist is employed; (2) maintaining open space along 
the San Luis Rey River and to establish this open space as a reserve 
for environmental and cultural purposes; (3) management of native 
vegetation that could improve the quality and abundance of riparian 
habitat, and decrease the risk of wildfire; (4) reducing the impact of 
recreation in riparian areas by continuing to educate tribal members 
and campground visitors through outreach programs, brochures, and 
newsletters; and (5) working to discourage the use of off-road vehicles 
in riparian areas through education, movement or closure of roads, and 
development of tribal ordinances.
Rincon Band of Luise[ntilde]o Mission Indians
    The Rincon Band of Luise[ntilde]o Mission Indians Reservation is 
located in northern San Diego County, California, in the San Diego 
Management Unit, and contains an approximately 4.3-km (2.7-mi) stream 
segment along the San Luis Rey River proposed as willow flycatcher 
critical habitat. The Rincon Band of Luise[ntilde]o Indians completed a 
Flycatcher Tribal Resource Conservation and Management Plan (Rincon 
Band of Luise[ntilde]o Mission Indians 2005, entire) and confirmed 
through their letter submitted during the proposed rule's comment 
period, the plan's ongoing implementation toward flycatcher 
conservation.
    The Rincon Band of Luise[ntilde]o Mission Indian's Management Plan 
addresses potential threats to flycatcher habitat through 
implementation of a variety of protective measures including: (1) 
Management of native vegetation that could improve the quality and 
abundance of riparian habitat, and decrease the risk of wildfire; (2) 
removal of all trash and debris from the San Luis Rey River; (3) 
excluding activities in the floodplain, such as mining and livestock 
grazing, which could remove or reduce the quality of riparian habitat; 
(4) exclusion of unauthorized recreational uses and off-road vehicle 
use from the riparian area; and (5) education of the public through 
development of signs, boundaries, and other measures to prevent 
unauthorized recreational use.
    Additionally, the Tribe is currently coordinating with the Service 
to develop a Reservation-wide HCP to provide conservation benefits to 
federally listed, unlisted, and rare species, including the federally 
endangered flycatcher.
Lower Colorado Recovery Unit, Little Colorado Management Unit
Zuni Pueblo
    The Zuni Department of Natural Resources (2012, entire), on behalf 
of The Zuni Pueblo (Zuni), developed and submitted a Flycatcher 
Management Plan to the Service in October 2012. Zuni and the Service 
have a common interest in promoting healthy ecosystems and protecting 
the flycatcher and its habitat. Zuni described that their cultural and 
spiritual beliefs are tied to wetlands and riparian areas, and, 
therefore, have committed to continue to manage riparian corridors 
benefiting all riparian obligate species, including the flycatcher.
    The Zuni's Flycatcher Management Plan describes their approach to 
managing the flycatcher and its habitat on tribal land, which includes 
a 55.4-km (34.4-mi) segment of the Zuni River and a 35.8-km (22.2-mi) 
segment of the Rio Nutria proposed as critical habitat in McKinley and 
Cibola Counties, New Mexico. This Management Plan was developed in 
accordance with the Recovery Plan (Service 2002, entire), which is the 
primary resource for conservation practices.
    The Zuni Department of Natural Resources has actively managed known 
flycatcher habitat in order to conserve and protect the continued 
presence of flycatchers on Zuni Pueblo. Zuni has supported research 
studies to improve their understanding of flycatcher territory 
abundance, site fidelity, year-to-year movements, and survival. Zuni 
has protected these riparian areas with known territories by preventing 
major land altering and development activities; implementing seasonal 
buffers when needed; providing education to tribal members; and 
managing cattle through annual review of grazing, rotational grazing 
practices, and livestock exclusions. Zuni has also used introduction of 
beavers to elevate ground water tables, thereby increasing the amount 
of water available for riparian plants that flycatcher rely upon.
    Zuni will continue to survey for flycatchers in known areas and 
also other habitats that exhibit suitable habitat characteristics. 
Their objectives by continuing these surveys is to be able to conserve 
and protect the flycatcher and its habitat from possible land altering 
actions such as over utilization, habitat manipulation, fire, or 
mechanical or chemical treatments.
    Zuni has also begun to develop 12 different riparian habitat areas 
that may be used by nesting flycatchers. A 49-ha (120-ac) wetland-
riparian habitat area is being established with cottonwood and

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willow trees by using treated affluent from the wastewater treatment 
plant. This habitat is being developed partially to replace areas where 
vegetation needed to be reduced in order to reduce hazardous fuel 
loads. Zuni has created 5 of the 12 habitat sections and continue to 
see improvement in the growth of cottonwood and willow. It is their 
objective that with the continued development of these habitats, 
breeding flycatchers will use the area.
Upper Colorado Recovery Unit, San Juan Management Unit
Navajo Nation
    The Navajo Nation submitted a management plan that recognizes the 
flycatcher as a species in need of protection on the Navajo Nation 
(Navajo Nation 2012, entire). Their plan uses conservation techniques 
recommended in the Recovery Plan and applies to all appropriate streams 
administered by the Navajo Nation, including a 3.5-km (2.2-mi) segment 
proposed as critical habitat along the San Juan River within San Juan 
County, New Mexico, and a 51.6-km (32.1-mi) segment along the San Juan 
River in San Juan County, Utah (43.5 km, 27.0 mi of the south bank on 
the eastern portion of the segment and 8.1 km, 5.1 mi of both banks of 
the remaining western portion of the segment). The Navajo Nation 
Department of Fish and Wildlife (NNDFW) described that they will review 
their flycatcher management plan every 5 years for effectiveness, and, 
in consideration of the current status of the flycatcher under Navajo 
and Federal law, they will revise and extend the plan accordingly.
    The NNDFW has authority with regard to endangered and threatened 
species protection and all temporary and permanent developments must 
receive clearance from NNDFW. The Navajo Nation evaluates a project's 
potential impact on protected wildlife or their habitat by using their 
Natural Heritage Database and various tribal and Federal wildlife 
protection regulations. The Navajo Nation's regulatory process divides 
their land into six separate land status categories based on their 
biological sensitivity and uses these categories to manage actions in a 
way that minimizes impacts to sensitive species and habitats.
    Proposed flycatcher critical habitat segments along the San Juan 
River falls into areas the Navajo Nation has delineated as either as a 
biological preserve or a highly sensitive area (Navajo Nation 2012, p. 
28). These areas are provided the greatest degree of protection from 
permanent development and temporary disturbances. Biological preserves 
are landscapes of high wildlife value and little or no current 
development or disturbance, or are particularly important for one or 
more protected species. Permanent or temporary development within 
biological preserves is prohibited unless it is compatible with the 
management of those areas as wildlife habitat. Highly sensitive 
habitats are areas that contain a high degree of habitat or resources 
importance for one or more protected species and have been relatively 
undisturbed by development. Permanent development is not prohibited, 
but those developments must demonstrate that impacts to protected 
species will be minimal, and the NNDFW strongly urges relocating 
projects to less sensitive habitats if possible.
    Although NNDFW makes a strong effort to avoid impacts to riparian 
habitats through project evaluation, some necessary developments may 
occur and efforts will be made to reduce, minimize, or mitigate 
potential project impacts. When a project could disturb nesting 
flycatchers or their habitat, NNDFW requires the project sponsor to 
adhere to protocol surveys and avoidance restrictions. Projects with 
the potential to disturb flycatchers or affect its habitat require two 
years of surveys. NNDFW prohibits activities within 0.4 km (0.25 mi) of 
a known nest or 0.4 km (0.25 mi) of potential nesting habitat (if a 
nest is not known) during the breeding season. Alteration of riparian 
habitat within 0.4 km (0.25 mi) of a known breeding area is prohibited 
year-round. When riparian habitats will be affected NNDFW seeks 
mitigation to enhance or improve similar habitats elsewhere. Of 
particular importance to NNDFW is enhancement of riparian habitats for 
the benefit of tribally or federally protected species, and any such 
projects get high priority.
    Existing recreational use on the Navajo Nation by boaters, campers, 
or hikers is not a primary stressor to flycatcher habitat. Recreation 
primarily occurs along stream segments in canyon, where habitat for 
flycatcher territories is not expected.
    The introduction of nonnative species, including those for weed or 
invasive species management, is currently prohibited by NNDFW policies 
and will be both a criminal and civil offense in the Navajo Nation Fish 
and Wildlife Code proposed amendments (pending approval by the Navajo 
Nation Council) (Navajo Nation 2012, p. 25). The NNDFW recognizes the 
potential impacts to riparian habitat from the tamarisk leaf beetle, 
and mitigating the adverse effects through the implementation of 
projects such as the planting of willows in affected riparian habitats, 
will be a priority.
    The NNDFW does not anticipate any prescribed burns in potential 
flycatcher habitat, and would not approve a prescribed burn in known 
flycatcher habitat without consultation with the Service.
    The Navajo Nation described that while livestock grazing is a 
traditional way of life for the Navajo People, the Navajo Nation 
recognizes that management is needed to address impacts that grazing 
has on vegetation flycatchers rely upon. The Nation can withdraw 
riparian habitat from grazing use and has previously worked with other 
Navajo agencies to reduce and eliminate grazing in important habitats 
along the San Juan River. Efforts are underway by Navajo policy makers 
and agencies to address past grazing impacts on the Navajo Nation and 
to improve protection and enforcement of Navajo resources and 
ecosystems. For example, this year the Navajo Departments of Resource 
Enforcement and Agriculture, in the Division of Natural Resources, 
partnering with local chapters (municipal subdivisions of the Navajo 
government), have been conducting roundups to reduce overgrazing by 
stray, feral, and unpermitted livestock. Additionally, the Navajo 
Nation and the BIA have been conducting public outreach regarding 
grazing impacts and the necessity of immediate and proactive steps to 
be taken to reduce grazing pressure and restore productivity of Navajo 
Nation rangelands.
Southern Ute Tribe
    The Southern Ute Tribal Flycatcher Management Plan (Management 
Plan), developed by the Southern Ute Division of Wildlife Resource 
Management (2012, entire), was adopted by their Tribal Council in July 
2012. The Tribe manages its lands within the Reservation in a manner 
that protects and conserves natural resources, including habitats for 
endangered and threatened species.
    The Southern Ute's Management Plan describes their comprehensive 
and integrated approach in managing the flycatcher and its habitat on 
tribal land. This includes the 25.9-km (16.1-mi) segment of the Los 
Pinos River proposed as flycatcher critical habitat in La Plata County, 
Colorado. This Management Plan can be amended when determined necessary 
by the Department and Council to reflect new information such as the 
flycatcher's biology, distribution, or abundance.

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    The Southern Ute Division of Wildlife Resource Management is 
involved in internal tribal project review. Prior to review, all land 
use, management, and development activities on tribal lands require 
review and comment by tribal resource experts and formal approval by 
Tribal Council. As described in their Management Plan, all projects 
that could adversely affect sensitive resources, such as flycatcher 
habitat, are mitigated to the maximum extent practicable.
    A primary goal of the Southern Ute Tribe, as reflected in their 
Management Plan, is to protect flycatcher habitat and territories, 
focusing on maintaining the complex vegetation structure and hydrologic 
conditions, which represent and support flycatcher habitat. Loss of 
habitat will be minimized by locating land-use and development outside 
of flycatcher habitat areas. Management and protection of habitat 
include such strategies as establishing seasonal buffers around 
territories; designating Tribal Conservation Areas; minimizing 
recreation impacts; suppressing and reducing occurrence of wildfire; 
and managing cattle grazing through exclusion, fencing, or conservative 
use.
    The Management Plan indicates that flycatcher habitat improvements 
will also be a goal along the Los Pinos River. Habitat creation and 
enhancement efforts will focus on restoring native plant communities 
through planting and improving the hydrologic conditions that favor the 
establishment of native plants. The Tribe will pursue grants for 
habitat improvements, seek improvement of in-stream flow, and explore 
introduction of beavers in order to raise groundwater elevation.
    The Southern Ute's Management Plan also describes that they will 
continue to conduct surveys for flycatcher and conduct research in 
support of flycatcher conservation. The Tribe will ensure that all 
surveyors have the appropriate training to conduct flycatcher surveys 
and will conduct period surveys throughout the Reservation for 
flycatcher territories. They will maintain their data in electronic 
databases and coordinate and share non-sensitive information with the 
Service and others. They will continue to support research to better 
understand flycatcher distribution and other actions that can improve 
tribal conservation and management of the flycatcher.
Gila Recovery Unit, Verde Management Unit
Yavapai-Apache Nation
    The Yavapai-Apache Nation completed a Flycatcher Management Plan in 
2005, and updated their plan in 2012 (Yavapai Apache Nation 2012, 
entire). The Yavapai-Apache Nation Tribal Council approved the 
implementation of their updated Management Plan in September 2012. The 
Yavapai and Apache people describe that they have valued and protected 
the Verde River, and the 2.8-km (1.7-mi) portions of the stream on 
Yavapai-Apache tribal lands proposed as flycatcher critical habitat 
within Yavapai County, Arizona, since time immemorial.
    The Nation continues to preserve those portions of the Verde River 
under its jurisdiction along with the plants and animals associated 
with the River. The Nation has a common interest with the Service in 
promoting healthy ecosystems for endangered and threatened species, 
including the flycatcher.
    The Management Plan specifically addresses and presents assurances 
for implementation of flycatcher habitat conservation. The Nation will 
take steps to protect flycatcher habitat along the Verde River through 
zoning, implementing tribal ordinances and code requirements, and 
carrying out measures identified in the Recovery Plan.
    The purpose of the Nation's Flycatcher Management Plan is to 
promote the physical and biological features that will maintain 
flycatcher habitat. Their strategy is not to allow any net loss or 
permanent impacts to flycatcher habitat by implementing measures from 
the Recovery Plan. Recreation and access to riparian areas will be 
managed to ensure no net loss of habitat. Fire within riparian areas 
will be suppressed and also managed by reducing fire risks. The Tribe 
will cooperate with the Service to monitor and survey habitat for 
breeding and migrating flycatchers, conduct research, and perform 
habitat management, cowbird trapping, or other beneficial flycatcher 
management activities.
    Since 2005, the Yavapai-Apache Nation has concluded that through 
implementation of their Flycatcher Management Plan, there has been no 
net loss of flycatcher habitat. Since 2005, no cattle grazing has 
occurred within the Verde River corridor. If any future grazing is 
permitted, it will be conducted appropriately with fences, and in a 
manner to protect flycatcher habitat quality. Also, no new access roads 
or recreation sites have been created. Similarly, any new housing areas 
have been directed to avoid construction within the river corridor.
    The Yavapai-Apache Nation has conducted continued education, 
information gathering, and partnering. The Nation has emphasized the 
importance of protecting the Verde River within tribal youth education 
programs. The Nation has also installed measurement devices to evaluate 
the depth of the Verde River groundwater in order to address river 
flows necessary to maintain or improve the riparian habitat quality. 
The Yavapai-Apache Nation has also continued to strengthen its 
partnership with the Service by hosting a meeting on the Service's 
Verde River conservation strategies. The Nation has committed to 
cooperatively discussing and examining future projects with the Service 
that could impact the flycatcher or its habitat.
Gila Recovery Unit, Upper Gila Management Unit
San Carlos Apache Tribe
    The San Carlos Apache Tribe Flycatcher Management Plan, developed 
by the SCATRWD (2012, entire), was adopted by their Tribal Council in 
2005, and was updated and adopted by the Council in September 2012. The 
Tribe describes that it highly values its wildlife and natural 
resources, which it is charged to preserve and protect under their 
Tribal Constitution. Consequently, the Tribe has managed wildlife 
habitat on its tribal lands, including endangered and threatened 
species habitat. San Carlos Apache tribal land includes the 31.3-km 
(19.5-mi) segment of the Gila River upstream of the conservation space 
of San Carlos Lake proposed as flycatcher critical habitat in Graham 
County, and a small disconnected portion (1 km, 0.6 mi) of the San 
Pedro River north of Aravaipa Creek in Pinal County Arizona.
    Please note that as a result of new information we received from 
comments, we have now updated our land ownership information, and have 
correctly identified that the BIA owns the conservation space or 
lakebed of San Carlos Lake. Please see San Carlos Reservoir within this 
Exclusion section for our separate 4(b)(2) exclusion analysis of the 
conservation space of San Carlos Lake, which is owned by the BIA.
    The purpose of their Management Plan is to provide a comprehensive 
and integrated approach in managing the flycatcher and its habitat, 
with the overall goal of protecting and securing areas of suitable and 
potentially suitable

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flycatcher habitat on San Carlos Apache tribal land. In addition, it 
serves as a guide to evaluate projects that may impact the flycatcher 
and its habitat. Strategies for managing flycatcher habitat are based 
on guidelines outlined in the Recovery Plan. This Management Plan can 
be amended when determined necessary by the Department and Council to 
reflect new information on the flycatcher's biology, survey 
methodologies, or tribal goals and objectives for flycatcher 
management.
    Through the implementation of their Management Plan, tribal 
ordinances and codes, the Tribe will protect and manage known 
flycatcher habitat, including areas proposed as critical habitat along 
the Gila River. The San Carlos Recreation and Wildlife Department will 
monitor riparian habitat, survey for flycatchers (in accordance with 
current protocols), and manage suitable and potentially suitable 
flycatcher habitat. The Tribe assures no net flycatcher habitat loss, 
permanent modification, or adverse impacts will occur as described in 
the Recovery Plan. The Recovery Plan will also be a reference guide for 
any habitat management activities or projects. The Tribe, through the 
San Carlos Recreation and Wildlife Department, will confer with tribal 
and Federal agencies, when appropriate, before performing management 
activities to control or replace salt cedar with native willow, 
cottonwood, or mesquite depending on the capability of the site, in 
order to avoid or minimize detrimental impacts.
    Since the Plan's development in 2005, the San Carlos Apache Tribe 
has consistently conducted annual flycatcher surveys and is committed 
to continue future surveys. A database has been developed to maintain 
survey data allowing the Tribe to evaluate flycatcher populations and 
trends over multiple years. Flycatcher locations are electronically 
mapped to assess density and habitat use.
    The results of the Tribe's flycatcher surveys have assisted in 
identifying potential project impacts in order to avoid and minimize 
effects to flycatchers and their habitat. The Recreation and Wildlife 
Department, a clearinghouse for all project reviews, has evaluated 
multiple projects since 2005, some of which were associated with 
Federal funding and resulted in informal and formal section 7 
consultations with the Service. In 2009, the Federal Highway 
Administration consulted with the Service on two bridge improvement 
projects. Using survey data, tribal, FHWA, and Service biologists were 
able to determine the location and proximity of flycatcher territories 
to the construction site in order to assess the potential impacts, and 
measures were included in the section 7 biological opinions to reduce 
and minimize effects to flycatcher habitat.
    The San Carlos Apache's Soil and Moisture Conservation Program 
(SMCP) has been pursuing two of the Tribe's many objectives for natural 
resource health: noxious weed removal and restoring native vegetation. 
In 2005, the SMCP initiated an effort to eradicate or reduce salt cedar 
in riparian areas where it was not yet a dominant portion of the 
habitat. The goals were to improve native vegetation, wildlife 
diversity, riparian health, and culturally important plants without 
using harsh, intrusive methods of weed removal. The Tribe consulted the 
Recovery Plan during project planning to guide habitat improvement in 
flycatcher breeding habitat.
Rio Grande Recovery Unit, Upper Rio Grande Management Unit
San Ildefonso Pueblo
    The San Ildefonso Pueblo, located in Rio Arriba County, New Mexico, 
completed and adopted a 2011 addendum to their 2005 Integrated Resource 
Management Plan, focusing specifically on flycatcher habitat management 
(San Ildefonso Pueblo 2012, entire). The San Ildefonso Pueblo described 
that their motivation to repair and protect their land is strong, with 
their culture and tradition obligating them to be stewards of the land, 
water, and wildlife, including the 7.7 km (4.8 mi) of the Rio Grande 
proposed as flycatcher critical habitat.
    The San Ildefonso Pueblo's addendum provides the management goals 
for long-term management of the Tribe's natural resources, including 
the flycatcher's habitat, based on the Recovery Plan. Their flycatcher 
management goals are to: (1) Restore water-related elements to improve 
quality, distribution, and abundance of riparian habitat; (2) retain 
riparian habitat and minimize vegetation removal; (3) manage livestock 
grazing through better fencing to improve the quality and quantity of 
riparian habitat; (4) protect riparian habitat from recreation impacts; 
(5) improve abundance of native plant species; (6) suppress fires that 
may occur in riparian areas; (7) coordinate with others to improve 
flycatcher populations; and (8) minimize threats to migratory 
flycatchers.
    The San Ildefonso Pueblo is collaborating with nearby pueblos and 
agencies on improving stream function and riparian habitat. They 
entered into an agreement in 2005 with the nearby pueblos and the Corps 
to protect riparian habitat, in part, by conducting a watershed 
feasibility study on tribal lands. The Pueblo has also collaborated 
with other agencies, such as the BIA and Service, on conducting 
flycatcher surveys and evaluation of riparian rehabilitation management 
project proposals and environmental assessments (70 FR 60886; October 
19, 2005, p. 60958).
Benefits of Inclusion--Tribal Lands Implementing Flycatcher Management 
Plans
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The streams that are being evaluated that occur within these tribal 
lands are known to be occupied by flycatchers and therefore, if a 
Federal action or permitting occurs, there is a catalyst for evaluation 
under section 7 of the Act. Our section 7 consultation history across 
the flycatcher's range shows that since listing in 1995, four formal 
consultations have occurred for actions conducted on tribal lands that 
resulted in adverse effects to flycatchers. No formal flycatcher 
consultations have been conducted with the BIA, a likely source of 
federal funding for Native American tribes. The two most recent formal 
section 7 consultations were with the Federal Highway Administration 
implementing bridge improvements on tribal lands in Arizona. We have 
conducted informal consultations with agencies implementing actions on 
tribal lands, provided tribes technical assistance on project 
implementation, and the Corps has coordinated with pueblos on projects; 
however, overall, since listing in 1995, formal section 7 consultations 
have been rare on tribal lands. Because of how tribes and pueblos have 
chosen to manage and conserve their lands and the lack of past section 
7 consultation history, we do not anticipate that tribal actions would 
considerably change in the future, generating a noticeable increase in 
section 7 consultations that would cause impacts to flycatchers and 
flycatcher habitat. Therefore, with

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migratory and territorial flycatchers using these tribal lands and few 
formal section 7 consultations completed, the effect of a critical 
habitat designation on these lands is minimized.
    Were we to designate critical habitat on these tribal lands, our 
section 7 consultation history indicates that there may be some, but 
few, regulatory benefits to the flycatcher. As described above, even 
with flycatchers occurring on these tribal lands, the frequency of 
formal flycatcher-related section 7 consultations has been rare. 
Projects initiated by Federal agencies in the past that were associated 
with maintenance of rights-of-way or water management such as those 
initiated by Federal Highway Administration or the USBR may occur on 
tribal lands in the future. When we review projects addressing the 
flycatcher pursuant to section 7 of the Act, we commonly examine 
conservation measures associated with the project for consistency with 
strategies described within the Recovery Plan. Where there is 
consistency with managing habitat and implementing conservation 
measures recommended in the Recovery Plan (as is the case for these 
tribes), it would be unlikely that a consultation would result in a 
determination of adverse modification of critical habitat. Therefore, 
when the threshold for adverse modification is not reached, only 
additional conservation recommendations could result out of a section 7 
consultation, but such measures would be discretionary on the part of 
the Federal agency.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management efforts on areas of high value for certain 
species. Any information about the flycatcher that reaches a wide 
audience, including parties engaged in conservation activities, is 
valuable. These tribes and pueblos are currently working with the 
Service to address flycatcher habitat and conservation, participate in 
working groups, and exchange management information. Because these 
tribes and pueblos have developed flycatcher specific Management Plans, 
have been involved with the critical habitat designation process, and 
are aware of the value of their lands for flycatcher conservation, the 
educational benefits of a flycatcher critical habitat designation are 
minimized.
    Another possible benefit of the designation of critical habitat is 
that it may strengthen or reinforce some Federal laws such as the Clean 
Water Act. These laws require analysis of the potential for proposed 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
flycatcher habitat-related projects. However, areas where nesting, 
migrating, dispersing, or foraging flycatchers occur, as is the case 
here, may also provide benefits when projects are evaluated for receipt 
of funding.
    Therefore, because of the implementation of tribal management plan 
conservation, rare initiation of formal section 7 consultations, the 
occurrence of territorial and migrant flycatchers on tribal lands, and 
overall coordination with tribes on flycatcher-related issues, it is 
anticipated that there may be some, but limited, benefits from 
including these tribal lands in a flycatcher critical habitat 
designation. The principal benefit of any designated critical habitat 
is that activities in and affecting such habitat require consultation 
under section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid destruction or adverse 
modification of critical habitat. However, with tribes and pueblos 
implementing measures that conserve flycatcher habitat combined with 
the rarity of Federal actions resulting in formal section 7 
consultations, the benefits of a critical habitat designation are 
minimized.
Benefits of Exclusion--Tribal Lands Implementing Flycatcher Management 
Plans
    The benefits of excluding these tribal lands from designated 
critical habitat include: (1) The advancement of our Federal Indian 
Trust obligations and our deference to tribes to develop and implement 
tribal conservation and natural resource management plans for their 
lands and resources, which includes the flycatcher; (2) the 
conservation benefits to the flycatcher and its habitat that might not 
otherwise occur; and (3) the maintenance of effective collaboration and 
cooperation to promote the conservation of the flycatcher and its 
habitat, and other species.
    During the development of the flycatcher critical habitat proposal 
(and coordination for other critical habitat proposals) and other 
efforts such as development of the Recovery Plan, we have met and 
communicated with various tribes and pueblos to discuss how they might 
be affected by the regulations associated with flycatcher management, 
flycatcher recovery, and the designation of critical habitat. As such, 
we established relationships specific to flycatcher conservation. As 
part of our relationship, we have provided technical assistance to 
these tribes and pueblos to develop measures to conserve the flycatcher 
and its habitat on their lands. These measures are contained within the 
management plans that we have in our supporting record for this 
decision. These proactive actions were conducted in accordance with 
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'' (June 5, 
1997); the relevant provision of the Departmental Manual of the 
Department of the Interior (512 DM 2); and Secretarial Order 3317, 
``Department of Interior Policy on Consultation with Indian Tribes'' 
(December 1, 2011). We believe that these tribes and pueblos should be 
the governmental entities to manage and promote flycatcher conservation 
on their lands. During our communication with these tribes and pueblos, 
we recognized and endorsed their fundamental right to provide for 
tribal resource management activities, including those relating to 
riparian habitat.
    We received tribal management plans specific to the flycatcher and 
its habitat from eight tribes and pueblos (we address an additional 
five tribes that developed management plans within the LCR MSCP 
exclusion analysis). All of the proposed critical habitat segments we 
identified on lands managed by tribes and pueblos that provided 
management plans are where migratory flycatchers have been recorded (or 
are anticipated to occur) or where territories have also been detected. 
Tribes have expressed that their lands, and specifically riparian 
habitat, are connected to their cultural and religious beliefs, and as 
a result they have a strong commitment and reverence toward its 
stewardship and conservation. Many tribes recognize that their 
management of riparian habitat and conservation of the flycatcher are 
common goals they share with the Service, and their Management Plans

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are based on strategies found in the Recovery Plan. Some of the common 
Management Plans strategies are maintaining riparian conservation 
areas, preserving habitat, improving habitat, or having no net loss of 
riparian habitat. Tribes also have project-by-project review processes 
in place that allow evaluation and implementation of conservation 
measures to minimize, or eliminate adverse impacts. Some tribes have 
natural resource departments, which have experienced biologists, 
conduct flycatcher surveys, and maintain databases on the quality of 
habitat throughout tribal lands and the status and occurrence of 
migratory and territorial flycatchers. Having this information 
available to tribes creates effective conservation through any project 
review process. The implementation of their Management Plans has been 
coordinated and approved through appropriate tribal processes, such as 
tribal councils. Overall, these commitments toward management of 
flycatcher habitat likely accomplish greater conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis.
    The designation of critical habitat on these tribal or pueblo lands 
would be expected to adversely impact our working relationship with 
these tribes. During our discussions with these tribes and from 
comments we received on the proposed designation of critical habitat, 
many informed us that critical habitat would be viewed as an intrusion 
on their sovereign abilities to manage natural resources in accordance 
with their own policies, customs, and laws. For example, the Rincon 
Tribe states that ``A critical habitat designation on the Reservation 
would have an unfortunate and substantial negative impact on the 
working relationship the Service and the Rincon band have established'' 
(Mazzetti 2011, p. 3). The perceived restrictions of a critical habitat 
designation could have a damaging effect on coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the flycatcher and other species. To this end, we found 
that tribes would prefer to work with us on a government-to-government 
basis. The La Jolla Band of Luise[ntilde]o Indians wrote that ``* * * 
we believe that proper consultation and partnering, rather than 
regulation, will best achieve the desired result of conservation,'' and 
``La Jolla and the Service, in partnership with the BIA, have worked 
hard to erase the perception of past negative issues, and establish 
this cooperative relationship'' (Peck 2011, p. 2). For these reasons, 
we believe that our working relationships with these tribes would be 
better maintained if we excluded their lands from the designation of 
flycatcher critical habitat. We view this as a substantial benefit 
since we have developed a cooperative working relationship with the 
tribes and pueblos for the mutual benefit of flycatcher conservation 
and other endangered and threatened species.
    We indicated in the proposed rule that our final decision regarding 
the exclusions of tribal lands under 4(b)(2) of the Act would consider 
tribal management and the recognition of their capability to 
appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (76 
FR 50542; August 15, 2011, p. 50584). We also acknowledged our 
responsibilities to work directly with tribes in developing programs 
for healthy ecosystems, that tribal lands are not subject to the same 
controls as Federal public lands, our need to remain sensitive to 
Indian culture, and to make information available to tribes (76 FR 
50542; August 15, 2011, p. 50596). We identified all tribal land 
included within the proposal as areas we were considering for exclusion 
and our continued coordination with tribes and pueblos (76 FR 50542; 
August 15, 2011, pp. 50582-50583).
    We coordinated and communicated with tribes and pueblos throughout 
the revision of flycatcher critical habitat by providing them 
information on: Implementation of section 4(b)(2) of the Act; the 
Recovery Plan; Management Plan templates, guidance, and review; 
critical habitat schedules, related documents, and public hearings; and 
our interest in consulting with them on a government-to-government 
basis at their request. We also followed up our correspondence with 
telephone calls and electronic mail to assist with any questions. 
During the comment period, we received input from many tribes and BIA 
offices expressing the view that designating flycatcher critical 
habitat on tribal land would adversely affect the Service's working 
relationship with all tribes. Many noted that beneficial cooperative 
working relationships between the Service and tribes have assisted in 
the conservation of listed species and other natural resources. They 
indicated that critical habitat designation on these tribes or pueblos 
would amount to additional Federal regulation of sovereign Nations' 
lands, and would be viewed as an unwarranted and unwanted intrusion 
into tribal natural resource programs. We conclude that our working 
relationships with these tribes on a government-to-government basis 
have been extremely beneficial in implementing natural resource 
programs of mutual interest, and that these productive relationships 
would be compromised by critical habitat designation of these tribal 
lands.
    In addition to flycatcher management plans, we anticipate future 
management plans to include conservation efforts for other listed 
species and their habitats. We believe that many tribes and pueblos are 
willing to work cooperatively with us and others to benefit other 
listed species, but only if they view the relationship as mutually 
beneficial. Consequently, the development of future voluntarily 
management actions for other listed species may be compromised if these 
tribal lands are designated as critical habitat for the flycatcher. 
Thus, a benefit of excluding these lands would be future conservation 
efforts that would benefit other listed species.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Tribal Lands 
Implementing Flycatcher Management Plans
    The benefits of including these tribes and pueblos in the critical 
habitat designation are limited to the incremental benefits gained 
through the regulatory requirement to consult under section 7 and 
consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness, potential additional grant 
funding, and the implementation of other law and regulations. However, 
as discussed in detail above, we believe these benefits are minimized 
because they are provided for through other mechanisms, such as (1) the 
advancement of our Federal Indian Trust obligations; (2) the 
conservation benefits to the flycatcher and its habitat from 
implementation of flycatcher management plans; and (3) the maintenance 
of effective collaboration and cooperation to promote the conservation 
of the flycatcher and its habitat.
    The benefits of excluding these areas from being designated as 
flycatcher critical habitat are more significant and include 
encouraging the continued implementation of tribal management and 
conservation measures such as monitoring, survey, habitat management 
and protection, and fire-risk reduction activities that are planned for 
the future or are currently being implemented. These programs will 
allow the tribes to manage their natural resources to benefit riparian 
habitat for the

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flycatcher, without the perception of Federal Government intrusion. 
This philosophy is also consistent with our published policies on 
Native American natural resource management. The exclusion of these 
areas will likely also provide additional benefits to the flycatcher 
and other listed species that would not otherwise be available without 
the Service's maintaining a cooperative working relationship with other 
tribes and pueblos. In conclusion, we find that the benefits of 
excluding these tribal lands (La Jolla and Rincon Band of 
Luise[ntilde]o Mission Indians in California; Navajo Nation in New 
Mexico and Utah; San Carlos Apache and Yavapai-Apache Tribes in 
Arizona; Southern Ute Tribe in Colorado; and Zuni and San Ildefonso 
Pueblos in New Mexico) from critical habitat designation outweigh the 
benefits of including these areas.
Exclusion Will Not Result in Extinction--Tribal Lands Implementing 
Flycatcher Management Plans
    As noted above, the Secretary, under section 4(b)(2) of the Act, 
may exclude areas from the critical habitat designation unless it is 
determined, ``based on the best scientific and commercial data 
available, that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned.'' We have 
determined that exclusion of these tribes and pueblos from the critical 
habitat designation will not result in the extinction of the 
flycatcher. First, Federal activities on these areas that may affect 
the flycatcher will still require consultation under section 7 of the 
Act. Section 7(a)(2) of the Act requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of listed species. Therefore, even 
without critical habitat designation on these lands, activities that 
occur on these lands cannot jeopardize the continued existence of the 
flycatcher. Even so, our record demonstrates that formal section 7 
consultations rarely occur on tribal lands, which is likely as a result 
of existing conservation planning. Second, each of these tribes and 
pueblos have committed to protecting and managing flycatcher habitat 
according to their management plans and natural resource management 
objectives. We believe this commitment accomplishes greater 
conservation than would be available through the implementation of a 
designation of critical habitat on a project-by-project basis. With the 
implementation of these conservation measures, based upon strategies 
developed in the Recovery Plan, we have concluded that this exclusion 
from critical habitat will not result in the extinction of the 
flycatcher. Accordingly, we have determined that these tribes and 
pueblos should be excluded under subsection 4(b)(2) of the Act because 
the benefits of excluding these lands from critical habitat for the 
flycatcher outweigh the benefits of their inclusion, and the exclusion 
of these lands from the designation will not result in the extinction 
of the species.
Tribal Conservation Partnerships, Southern California
    We determined approximately 11.2 km (7.0 mi) of stream segments 
owned, administered by, or set aside for the sole and exclusive use of 
certain Southern California tribes (Ramona Band of Cahuilla (0.4, km, 
0.3 mi); the Pala Band of Luise[ntilde]o Mission Indians of the Pala 
Reservation (8.3 km, 5.3 mi); the Barona Group of Capitan Grande Band 
of Mission Indians and the Viejas (Baron Long) Group of Capitan Grande 
Band of Mission Indians, which jointly manage the Capitan Grande Band 
of Diegueno Mission Indians Reservation (0.9 km, 0.3 mi); and the Iipay 
Nation of Santa Ysabel (1.6 km, 1.0 mi)) contain the physical or 
biological features essential to the flycatcher conservation, and 
therefore meet the definition of critical habitat under the Act. While 
none of these southern California tribes submitted a formal management 
plan identifying specific flycatcher conservation measures, our 
relationship and partnership with these tribes is important in order to 
cooperate towards flycatcher recovery, provide technical assistance on 
implementing flycatcher conservation actions, and share information on 
flycatcher distribution and abundance (Service 2002, Appendix N). 
During the comment periods, some of these tribes did provide some 
information about conservation and educational efforts, which we 
identify in each tribe's introduction (see below).
    When conducting our analysis under section 4(b)(2) of the Act, with 
regard to these tribal lands, we considered several factors, including 
Executive Order 13175, Presidential Memorandum (74 FR 57879; November 
9, 2009), Secretarial Order 3206, our existing and future partnerships 
with tribes, and existing conservation strategies or actions that 
tribes are currently implementing. We also took into consideration any 
conservation actions that are planned as a result of ongoing 
government-to-government consultations with tribes. Under section 
4(b)(2) of the Act, the Secretary is exercising his discretion to 
exclude approximately 11.2 km (7.0 mi) of stream segments comprised of 
tribal lands. As described in our analysis below, this conclusion was 
reached after considering the relevant impacts of specifying these 
areas as critical habitat.
    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the U.S. Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian tribes with respect to 
Indian lands, tribal trust resources, and the exercise of tribal 
rights. Pursuant to these authorities, lands have been retained by 
Indian tribes or have been set aside for tribal use. These lands are 
managed by Indian tribes in accordance with tribal goals and objectives 
within the framework of applicable treaties and laws. Secretarial Order 
3317, ``Department of Interior Policy on Consultation with Indian 
Tribes'' (December 1, 2011), outlines the policies and the 
responsibilities of the Department of Interior in matters affecting 
tribal interests. In accordance with Secretarial Order 3317; 
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'' (June 5, 
1997); and the relevant provision of the Departmental Manual of the 
Department of the Interior (512 DM 2), we believe that fish, wildlife, 
and other natural resources on tribal lands are better managed under 
tribal authorities, policies, and programs, than through Federal 
regulation wherever possible and practicable. We also recognize our 
unique responsibility to promote tribal sovereignty and self-
governance. Based on this philosophy, we believe that, in most cases, 
designation of tribal lands as critical habitat would provide very 
little additional benefit to the flycatcher. Furthermore, we believe 
designating these tribal lands would have an impact on Federal policies 
promoting tribal sovereignty and self-governance because designation is 
often viewed by tribes as an unwarranted and unwanted intrusion into 
tribal self-governance, thus compromising the government-to-government 
relationship important to achieving our mutual goals of managing for 
healthy ecosystems upon which the viability of endangered and 
threatened species populations depend.
    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical

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habitat based on economic impacts, impacts to National security, or 
other relevant impacts if the Secretary determines that the benefits of 
such exclusion outweigh the benefits of designating the area as 
critical habitat, unless such exclusion will result in the extinction 
of the species. In the decision Center for Biological Diversity, v. 
Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that a 
positive working relationship with Indian tribes is a relevant impact 
that can be considered when weighing the relative benefits of a 
critical habitat designation (also see Center for Biological Diversity 
v. U. S. Fish and Wildlife Service, No. 09-CV-2216 W (S.D. Cal. Sept, 
26, 2011)). In the case of the flycatcher, critical habitat designation 
would have an adverse impact on our relationship with the affected 
tribes. Most tribes we consulted expressed concern about the intrusion 
into tribal sovereignty that critical habitat designation represents. 
Comments received from tribes reaffirmed this concern and stated they 
would view critical habitat designation on their lands as an unwanted 
intrusion, which would have a negative impact on tribal sovereignty and 
self-governance and on the relationship between the tribe and the 
Service. This response was consistent with responses the Service 
received from Indian tribes in past designations (for example, revised 
critical habitat designation for the arroyo toad (76 FR 7246, February 
9, 2011)). In addition, exclusion of tribal lands would also have the 
benefit of promoting a positive relationship between the Service and 
the tribes (in accordance with Secretarial Order 3206), with a very 
small reduction in the benefits of designation (primarily the loss of 
section 7 consultation to consider adverse modification of critical 
habitat).
Coastal California Recovery Unit; Santa Ana Management Unit
The Ramona Band of Cahuilla
    The Ramona Band of Cahuilla, California, is located in northern 
Riverside County, in the Santa Ana Management Unit, and contains an 
approximately 0.4-km (0.3-mi) stream segment along Bautista Creek that 
meets the definition of flycatcher critical habitat. Tribal lands of 
the Ramona Band of Cahuilla, California, along Bautista Creek were not 
within the geographical area known to be occupied by the flycatcher at 
the time of listing, but have since had documented occupancy and are 
currently considered occupied and will be subject to the consultation 
requirements of the Act in the future.
    Although currently there is no flycatcher management plan for these 
tribal lands, the Service, BIA, and tribe are currently coordinating to 
discuss flycatcher management on the reservation and will work together 
to promote conservation of the species and its habitat. The Ramona Band 
of Cahuilla, California, has developed draft conservation measures that 
benefit the flycatcher and its habitat and has stated, ``the Ramona 
Band of Cahuilla invites the Department to work with the tribe to 
devise and adopt its plan'' (Gomez 2012, p. 2).
Coastal California Recovery Unit; San Diego Management Unit
Pala Band of Luise[ntilde]o Mission Indians of the Pala Reservation
    The Pala Band of Luise[ntilde]o Mission Indians of the Pala 
Reservation, California, is located in northern San Diego County, 
California, in the San Diego Management Unit. Approximately 8.3 km (5.2 
mi) of the San Luis Rey River that meets the definition of flycatcher 
critical habitat is on tribal land, which includes tribal reservation 
lands and pending fee-to-trust lands, of the Pala Band of 
Luise[ntilde]o Mission Indians of the Pala Reservation, California. 
Tribal lands of the Pala Band of Mission Indians along the San Luis Rey 
River were within the geographical area known to be occupied by the 
flycatcher at the time of listing, are currently considered occupied, 
and will be subject to the consultation requirements of the Act in the 
future.
    The tribe developed a management plan in 2005, which is currently 
being implemented to guide management and land use on the reservation. 
Although the Tribe has not developed a management plan specifically 
addressing the flycatcher, they have developed a management plan for 
the federally endangered arroyo toad (Anaxyrus californicus), which 
provides ancillary benefits to the flycatcher such as: (1) Maintenance 
of designated open space and waterways along the San Luis Rey River; 
(2) discouraging development within the San Luis Rey River; and (3) 
removal of nonnative species.
    Additionally, in 2010, the Tribe was awarded a Tribal Wildlife 
Grant to develop a tribal Habitat Conservation Plan (THCP), in 
cooperation with the Service. The purpose of the THCP is to protect the 
Tribe's natural resources, through the permitting of any incidental 
take occurring during land development, in return for providing 
coverage to listed species, including the flycatcher, and other covered 
species by minimizing or mitigating for impacts to these species of 
their habitat. The Tribe is currently coordinating with the Service in 
the initial stages of the THCP development.
    Also, The Pala Environmental Protection Agency has developed an 
education program for tribal members to ensure awareness of habitat and 
resource constraints on the Reservation (Smith 2011, p. 4).
Barona Group of Capitan Grande Band of Mission Indians of the Barona 
Reservation, California and the Viejas (Baron Long) Group of Capitan 
Grande Mission Indians of the Viejas Reservation, California (Capitan 
Grande Reservation)
    The Barona Group of Capitan Grande Band of Mission Indians and the 
Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians 
jointly manage the Capitan Grande Reservation. The Capitan Grande 
Reservation is located in San Diego County, California, in the San 
Diego Management Unit, and contains an approximately 0.9 km (0.6 mi) 
stream segment along the San Diego River that meets the definition of 
flycatcher critical habitat. Tribal lands jointly managed by the Barona 
Group of Capitan Grande Band of Mission Indians of the Barona 
Reservation, California and the Viejas (Baron Long) Group of Capitan 
Grande Mission Indians of the Viejas Reservation, California, along the 
San Diego River were not within the geographical area known to be 
occupied by the flycatcher at the time of listing, but have since had 
documented occupancy and are currently considered occupied and will be 
subject to the consultation requirements of the Act.
    Although currently there is no flycatcher management plan for the 
Capitan Grande Reservation, the Service, BIA, and both Tribes are 
currently coordinating to discuss flycatcher management on the 
reservation and will work together to promote conservation of the 
species and its habitat. The Tribes have also been working closely with 
the BIA on a fuel reduction project for fire safety purposes, which 
provide an ancillary benefit to the flycatcher by reducing the 
likelihood of fire that might affect flycatcher habitat.
    Additionally, as discussed in comments we received from the Barona 
Group of Capitan Grande Band of Mission Indians and the Viejas (Baron 
Long) Group of Capitan Grande Mission Indians, the Tribes have not 
developed this stream segment, nor do they have any intention to. They 
described that this portion of the San Diego River is

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not inhabited and is very remote, and use by outside parties is not 
permitted and is only accessed for hunting and cultural activities by 
tribal members.
Coastal California Recovery Unit; Salton Management Unit
The Iipay Nation of Santa Ysabel
    The Iipay Nation of Santa Ysabel, California Reservation is located 
in eastern San Diego County, California, in the Salton Management Unit, 
and contains an approximately 1.6-km (1.0-mi) stream segment along San 
Felipe Creek that meets the definition of flycatcher critical habitat. 
Tribal lands of the Iipay Nation of Santa Ysabel, California, along San 
Felipe Creek were not within the geographical area known to be occupied 
by the flycatcher at the time of listing, but have since had documented 
occupancy and are currently considered occupied and will be subject to 
the consultation requirements of the Act in the future.
    Although currently there is no flycatcher management plan for the 
Iipay Nation of Santa Ysabel, the Service, BIA, and Tribe are currently 
coordinating to discuss flycatcher management on the reservation and 
will work together to promote conservation of the species and its 
habitat. The Iipay Nation of Santa Ysabel, California, has coordinated 
and collaborated with the Service by attending tribal coordination 
quarterly meetings. The meetings facilitate routine communication among 
the Service, BIA, and tribal governments on upcoming rulemakings, 
species reviews, consultation with other Federal agencies, or any other 
endangered species issues that may be of interest or concern tribes. 
These meetings also provide a forum to discuss any fish or wildlife 
resource management issues or concerns tribal governments may have and 
would like to discuss with or seek the technical assistance of the 
Service.
Benefits of Inclusion--Southern California Tribal Partnerships
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    However, for some species, and in some locations, the outcome of 
these analyses will be similar, because effects to habitat will often 
also result in effects to the species. While some of these stream 
segments on southern California tribal lands were known to be occupied 
by flycatchers at the time of listing and others were not, all of them 
have since had documented occupancy and are currently considered 
occupied by our criteria established within this rule with either the 
known occurrence of territories or the likelihood of being used by 
migrating flycatchers, and therefore will be subject to the 
consultation requirements of the Act in the future. Though a jeopardy 
and adverse modification analysis must satisfy two different standards, 
any modifications to proposed actions resulting from a section 7 
consultation to minimize or avoid impacts to the flycatcher would be 
habitat based, as the flycatcher is primarily dependent on a properly 
functioning hydrological regime. For example, because the stream 
segments we identified as essential in southern California are 
considered occupied, any impact to riparian habitat would directly 
affect the species because it is wholly dependent on riparian habitat 
for breeding, sheltering, feeding and rearing.
    Another possible benefit of including these southern California 
tribal lands as critical habitat is the public education regarding the 
potential conservation value of an area that may help focus 
conservation efforts on areas of high conservation value for certain 
species. Any information about the flycatcher and its habitat that 
reaches a wide audience, including parties engaged in conservation 
activities, is valuable. The inclusion of tribal lands in the 
flycatcher proposed critical habitat rule can be beneficial to the 
species because the proposed rule identifies those lands that are 
essential to the conservation of the flycatcher and which may require 
special management considerations or protection. The process of 
proposing and finalizing revised critical habitat provides the 
opportunity for peer review and public comment on habitat we determined 
meets the definition of critical habitat. This process is valuable to 
land owners and managers in prioritizing conservation and management of 
identified areas.
    However, in the case of the flycatcher, the educational benefits 
have largely been realized by the previous efforts including the 
previous critical habitat designation published in the Federal Register 
on October 19, 2005 (70 FR 60886); our October 12, 2004, proposed 
critical habitat rule (69 FR 60706); the Recovery Plan (Service 2002, 
entire); our first flycatcher critical habitat designation, published 
July 22, 1997 (62 FR 39129), and August 20, 1997 (62 FR 44228); the 
final flycatcher listing rule (60 FR 10694, February 27, 1995). In 
addition, because of our efforts coordinating with these southern 
California tribes on the proposed rule, we believe educational benefits 
have largely been realized on lands controlled by or set aside for the 
sole and exclusive use of tribes. In an effort to demonstrate our 
commitment to work closely with the tribes as a partner in protecting 
species while also respecting tribal status, the Service is conducting 
ongoing coordination with all the affected southern California tribes. 
We believe our ongoing coordination with the tribes should provide 
sufficient future education about the flycatcher and its habitat, 
facilitate development of management plans (for reservations that do 
not currently have management plans), and promote flycatcher 
conservation on tribal lands.
    An additional benefit to designating critical habitat is to ensure 
that listed species, such as the flycatcher, have essential habitat 
available that provides for breeding, sheltering, feeding and rearing 
to achieve recovery goals. In keeping with our tribal trust 
responsibility, Secretarial Order 3206 states that when designating 
critical habitat, we shall evaluate and document the extent to which 
the conservation needs of listed species can be achieved by limiting 
the designation to other lands. For the flycatcher, the Recovery Plan 
identifies a minimum number of territories per Management Unit that 
must be met for the reclassification and recovery of the species 
(Service 2002, p. 84). A minimum number of 50 territories must be met 
for the Santa Ana Management Unit, 125 territories for the San Diego 
Management Unit, and 25 for the Salton Management Unit (Service 2002, 
p. 84).
    Within the Santa Ana Management Unit, approximately 3,815 ha (9,451 
ac) of lands were identified as essential to the flycatcher. The Ramona 
Band of Cahuilla, located within this management unit, only consists of 
1.8 ha (4.4 ac) of land identified as essential to the flycatcher. 
Within the San Diego Management Unit, approximately 3,827 ha (9,459 ac) 
of lands were identified as essential to the flycatcher. The Barona 
Group of Capitan Grande Band of Mission Indians of the Barona 
Reservation, the Viejas (Baron Long) Group of Capitan Grande Mission 
Indians of the Viejas Reservation, and the Pala Band of Luise[ntilde]o 
Mission Indians of the Pala Reservation, located within this management 
unit, only consists of 283 ha (700 ac) of land

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identified as essential to the flycatcher. Within the Salton Management 
Unit, approximately 312 ha (772 ac) of lands were identified as 
essential to the flycatcher. The Iipay Nation of Santa Ysabel, located 
within this management unit, only consists of 9.0 ha (22.1 ac) of land 
identified as essential to the flycatcher. Therefore, the proposed 
tribal lands represent a very small amount of the essential flycatcher 
habitat available in these Management Units.
    The designation of flycatcher critical habitat may also trigger 
some of the provisions in other secondary laws such as State 
environmental laws if they analyze the potential for projects to 
significantly affect the environment. The additional protections 
associated with critical habitat may be beneficial in areas not 
currently conserved or addressed by management plans. Critical habitat 
may signal the presence of sensitive habitat that could otherwise be 
missed in the review process for these other environmental laws. 
However, we believe that fish, wildlife, and other natural resources on 
tribal lands are better managed under tribal authorities, policies, and 
programs than through Federal regulation wherever possible and 
practicable.
    The stream segments we identified as essential on these southern 
California tribal lands are considered occupied. As a result, we find 
that the incremental regulatory benefits of critical habitat 
designation on these tribal lands may be minimal. Additionally, we 
believe the educational benefits of critical habitat designation on 
these southern California tribal lands may have been realized through 
publication of the listing rule for the flycatcher, previous critical 
habitat designations, the proposed rule to revise critical habitat, and 
Recovery Plan. Therefore, we find the limited incremental regulatory 
and educational benefits of critical habitat designation to be largely 
redundant with that provided by listing, previous critical habitat 
designations, and past recovery planning efforts.
Benefits of Exclusion--Southern California Tribal Partnerships
    Under Secretarial Order 3206, American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Act, we recognize that 
we must carry out our responsibilities under the Act in a manner that 
harmonizes the Federal trust responsibility to tribes and tribal 
sovereignty while striving to ensure that tribes do not bear a 
disproportionate burden for the conservation of listed species, so as 
to avoid or minimize the potential for conflict and confrontation. In 
accordance with the Presidential memorandums of April 29, 1994, and 
November 9, 2009, we believe that, to the maximum extent possible, 
tribes are the appropriate governmental entities to manage their lands 
and tribal trust resources, and that we are responsible for 
strengthening government-to-government relationships with tribes. 
Because of the unique government-to-government relationship between 
Indian tribes and the United States, it is important for us to 
establish and maintain an effective working relationship and mutual 
partnership with these southern California tribes to promote the 
conservation of the flycatcher and other sensitive species. Maintaining 
positive working relationships with tribes is key to implementing 
natural resource programs of mutual interest, including habitat 
conservation planning efforts.
    During the public comment period, we received comments from tribes 
expressing their view that critical habitat designation is an 
unwarranted and unwanted intrusion into tribal self-governance. This 
sentiment has been expressed by other tribes in previous rulemakings 
(such as the 2007 proposed critical habitat designation for peninsular 
bighorn sheep (72 FR 57739; October 10, 2007), 2009 proposed critical 
habitat designation for Casey's June beetle (74 FR 32857; July 09, 
2009), and 2009 proposed revised critical habitat designation for 
arroyo toad (74 FR 52612; October 13, 2009). Critical habitat 
designation on these southern California tribes would potentially 
damage our working relationship with the tribes. We believe excluding 
these southern California tribes from critical habitat will help 
preserve the relationships we have worked to develop and are currently 
building with the tribes, and foster future partnerships.
    Therefore, we believe significant benefits would be realized by 
forgoing designation of critical habitat on tribal lands managed by 
these southern California tribes. These benefits include: (1) 
Continuation and strengthening of our effective working relationships 
with the tribes to promote conservation of the flycatcher and its 
habitat; (2) allowing for continued meaningful collaboration and 
cooperation in working toward recovering this species, including 
conservation benefits that might not otherwise occur; and (3) 
encouragement of other tribes to complete management plans in the 
future on other reservations for this, and other federally listed and 
sensitive species, and engage in meaningful collaboration and 
cooperation.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Southern 
California Tribal Partnerships
    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of these southern California tribal lands as 
flycatcher critical habitat. Including these tribal lands in the final 
revised critical habitat designation for the flycatcher would likely 
provide minimal additional protection under section 7(a)(2) of the Act 
when there is a Federal nexus, and the designation will also not likely 
add benefits as an educational tool for tribal members regarding the 
flycatcher and the physical and biological features essential to its 
conservation. We believe past and future coordination with these 
southern California tribes will provide sufficient education regarding 
flycatcher habitat conservation needs. We also anticipate limited 
ancillary benefit from other environmental laws if these areas are 
designated as critical habitat because of the listing of the flycatcher 
as an endangered species and the educational awareness of these tribes. 
Absent critical habitat on tribal lands, future projects requiring 
Federal funding, authorization, or permits would still be subject to 
consultation under section 7(a)(2) of the Act to ensure such projects 
will not jeopardize the continued existence of the flycatcher; 
therefore, we believe the additional limited regulatory incremental 
benefit of designating critical habitat on these southern California 
tribal lands is minimized. In addition, the proposed tribal lands as 
essential to the flycatcher represents a very small portion of 
essential habitats in each effected management unit. Therefore, in 
keeping with our tribal trust responsibilities as stated in Secretarial 
Order 3206, we believe that the conservation needs of the flycatcher 
can be achieved by limiting the designation to other non-tribal lands.
    Conversely, the benefits of excluding these southern California 
tribal lands as flycatcher critical habitat are significant. Exclusion 
of these lands from critical habitat will help preserve the partnership 
we have developed with the tribes and strengthen those we are building 
with other tribes, and foster future partnerships and development of 
management plans. These tribes and the BIA emphasized through comment 
letters their belief that designation of critical habitat on tribal 
land undermines tribal sovereign governmental authority and interferes 
with the cooperative government-to-government trust relationship 
between the tribes and the United States. We are committed to working 
with our tribal

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partners to further the conservation of the flycatcher and other 
endangered and threatened species. The partnerships we have and are 
developing with these southern California tribes will help facilitate 
cooperation towards flycatcher recovery, implementation of flycatcher 
conservation actions, and the sharing information on flycatcher 
distribution and abundance. Therefore, in consideration of the relevant 
impact to our government-to-government relationship with these southern 
California tribes and our current and future conservation partnerships, 
we determined the significant benefits of exclusion outweigh the 
benefits of critical habitat designation.
    In summary, we find that the exclusion of these southern California 
tribal lands from this final revised critical habitat will preserve our 
partnership with the tribe and foster future collaborative efforts to 
conserve and recover the flycatcher. These partnership benefits are 
significant and outweigh the limited potential regulatory and 
educational benefits of including 11.2 km (7.0 mi) of stream within 
these southern California tribal lands as flycatcher critical habitat.
Exclusion Will Not Result in Extinction of the Species--Southern 
California Tribal Partnerships
    We determined that the exclusion of 11.2 km (7.0 mi) of stream 
along these southern California tribal lands from this revised final 
designation of flycatcher critical habitat will not result in 
extinction of the species. The jeopardy standard of section 7(a)(2) of 
the Act and routine implementation of conservation measures through the 
section 7 consultation process due to flycatcher and other federally 
listed species occupancy provide assurances that this species will not 
go extinct as a result of exclusion from critical habitat designation. 
Additionally, the combined amount of these tribal lands and 
individually within their Management Units represents a small portion 
of the overall amount of stream segments designated within the Santa 
Ana, San Diego, and Salton Management Units. Therefore, based on the 
above discussion the Secretary is exercising his discretion to exclude 
approximately 11.2 km (7.0 mi) along stream segments within these 
southern California tribal lands from this final revised critical 
habitat designation.
Tribal Conservation Partnerships, New Mexico
Rio Grande Recovery Unit, Upper Rio Grande Management Unit
    Both the Ohkay Owingeh (formerly referred to as the San Juan 
Pueblo) and the Santa Clara Pueblo occur adjacent to each other along 
the upper Rio Grande in New Mexico. Because they share similar 
locations, habitat conditions, issues, and concerns, and they can 
cooperate and implement similar projects from similar sources, our 
exclusion analysis for these two pueblos is combined below. Neither of 
these pueblos submitted a flycatcher specific management plan, because 
they manage their lands in a holistic manner. However, they both have 
established conservation partnerships with the Service and have 
implemented conservation and recovery actions for the improvement of 
riparian habitat and the flycatcher. As a result, in order to reduce 
replication of similar text, we have combined our exclusion analysis 
for these pueblos below.
Ohkay Owingeh Pueblo (San Juan)
    Ohkay Owingeh Pueblo is located along the Rio Grande just north of 
Espanola in Rio Arriba County, New Mexico, and adjoins the lands of 
Santa Clara Pueblo. The Ohkay Owingeh Pueblo includes the southern or 
downstream end of the Velarde reach of the Rio Grande, and comprises 
the largest contiguous area of generally intact riparian woodland, as 
well as the largest riparian area under the control of a single 
landowner, within the Velarde reach. A total of about 16.6 km (10.3 mi) 
of the Rio Grande are located within the Pueblo and over 450 ha (1100 
acres) of riparian habitat are still extant within the Pueblo 
boundaries. We proposed a 9.3-km (5.8-mi) segment of the Rio Grande on 
Ohkay Owingeh Pueblo as flycatcher critical habitat.
    While the Ohkay Owingeh Pueblo does not have a flycatcher specific 
Management Plan, they have implemented flycatcher habitat management 
and protection measures. We have consolidated information on the past, 
present, and future voluntary measures, habitat improvement projects, 
and management to conserve the flycatcher and its habitat on lands of 
Ohkay Owingeh Pueblo.
    Based on their traditional beliefs and ties to the bosque (or 
riparian area), the Ohkay Owingeh Pueblo continues to protect, 
conserve, and improve the riparian habitat the flycatcher relies upon. 
The Pueblo has invested a significant amount of ongoing time and effort 
to address the needs and recovery of the flycatcher. In addition, based 
on the long-term goals of restoring additional wetland and native 
habitat, the Pueblo has shown that it is managing its resources to meet 
its traditional and cultural needs, while addressing the conservation 
needs of the flycatcher. Currently, both the Ohkay Owingeh and Santa 
Clara Environmental Affairs Department employs tribal members who work 
on holistic habitat improvement and management, which includes 
endangered and threatened species and their habitat.
    The long-term goal of riparian management on Ohkay Owingeh Pueblo 
is to make significant additions of wetland areas for breeding 
flycatchers, as well as implement innovative management techniques, 
decrease fire hazards by restoring native vegetation, share information 
with other habitat managers, utilize habitat managment projects in the 
education of the tribal community and surrounding community, and 
provide a working and training environment for the people of the 
Pueblo.
    In June of 1993, the flycatcher was documented on the west side of 
the Rio Grande at Ohkay Owingeh Pueblo as a biological assessment was 
being prepared for the proposed NM 74 Bridge project. The project 
proposed to replace an existing bridge and two-lane road section with a 
newly located bridge and two-lane road with shoulders. Subsequent 
evaluations indicated that a viable population of flycatchers was 
utilizing the area.
    The presence of the flycatcher prompted the Pueblo to manage and 
improve riparian habitat and associated wetlands for the flycatcher. 
Habitat within the Pueblo is much degraded relative to historic 
conditions for two main reasons: (1) River channelization that has 
caused drying of the floodplain desiccation, cessation of overbank 
flooding, and disruption of river function processes; and (2) intensive 
invasion by nonnative trees, primarily Russian olives. The increasing 
frequency and severity of fires in the Rio Grande riparian area, 
accompanied by changes in vegetation and the water regime, underscored 
the urgency the need to reduce habitat stressors and improve stream 
function and riparian habitat.
    The Ohkay Owingeh Pueblo immediately began management and 
conservation projects to benefit the flycatcher following the bridge 
project. One ha (2 ac) of native riparian vegetation were planted on 
the reclaimed old roadway; 0.1 ha (0.22 ac) of riparian vegetation were 
planted

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adjacent to the new bridge; 0.4 ha (1 ac) of riparian woodland was 
restored adjacent to the project; and wetland restoration, which 
included open water and saturated soils, was developed at three sites 
encompassing another 0.4 ha (1 ac).
    Since 1999, the Pueblo has initiated or completed a variety of 
habitat improvement and conservation projects, including further 
wetland creation and expansion, flycatcher habitat enhancement with 
vegetation and open water, and management to improve the occurrence of 
native riparian habitat. These projects were funded through various 
programs of the Environmental Protection Agency, Wildland Urban 
Interface Collaborative Forest Restoration Program, Endangered Species 
Act Collaborative Program, Service Partners for Fish and Wildlife 
Program, and the State of New Mexico. In total, these projects 
addressed 301 ha (744 ac) of habitat on the Pueblo with direct and 
indirect benefits to the flycatcher. The project implementations 
include conservation, monitoring, and management for the flycatcher 
into the future. These efforts contribute to the long-term goals of 
recovery for the flycatcher. In addition to the habitat work, the 
Pueblo supports flycatcher surveys and nest monitoring on the Pueblo 
lands.
    In 2004, the Pueblo sponsored a multi-organization riparian 
restoration conference on their lands and are collaborating with nearby 
pueblos and agencies on improving stream function and riparian habitat. 
Their management efforts and flycatcher conservation were highlighted 
at the conference. As such, the Service and its partners gained 
valuable information about restoring flycatcher habitat and management 
techniques that can be applied to other riparian areas. In 2005, they 
formalized this effort by entering into an agreement with the nearby 
pueblos and the Corps to protect and improve riparian habitat, in part, 
by conducting a watershed feasibility study on tribal lands.
Santa Clara Pueblo
    Santa Clara Pueblo, is located in Rio Arriba County, New Mexico, 
and adjoins the lands of Ohkay Owingeh Pueblo. The Santa Clara, Ohkay 
Owingeh, and San Ildefonso Pueblos form nearly a contiguous segment of 
the Rio Grande. The Santa Clara Pueblo encompasses more than 21,449 ha 
(53,000 ac) of diverse vegetative communities, including approximately 
714 ha (1,764 ac) of riparian habitat along the Rio Grande. We proposed 
a 10.2-km (6.4-mi) segment of the Rio Grande on Santa Clara Pueblo as 
flycatcher critical habitat.
    While the Santa Clara Pueblo does not have a flycatcher specific 
Management Plan, they have implemented flycatcher habitat management 
and protection measures. We have consolidated information on the past, 
present, and future voluntary measures, restoration projects, and 
management to conserve the flycatcher and its habitat.
    The Rio Grande is an integral part of the Santa Clara Pueblo's 
history, culture, and continued preservation as a homeland. They view 
all of their natural resources, including the Rio Grande riparian area, 
as important to the survival of the Santa Clara people. Many of the 
various vegetative communities within the Pueblo and the innumerable 
wildlife species they support have significant traditional and 
spiritual value to the tribal people.
    In June of 1993, the flycatcher was documented on the west side of 
the Rio Grande north of the NM 74 Bridge as a biological assessment was 
being prepared for the proposed bridge project. The project proposed to 
replace an existing bridge and two-lane road section with a newly 
located bridge and two-lane road with shoulders. Subsequent evaluations 
indicated that a viable population of flycatchers was utilizing the 
area and was nesting on the site at Ohkay Owingeh Pueblo, but adjacent 
to Santa Clara Pueblo. We have determined in the criteria described in 
this rule, that the upper Rio Grande through the Santa Clara Pueblo is 
occupied by flycatchers because of the detections of flycatcher 
territories throughout the length of the Rio Grande, and its migratory, 
dispersal, and foraging behavior.
    Over the last 11 years, the Santa Clara Pueblo has restored 
riparian habitat for the good of the entire landscape and associated 
wetlands for the flycatcher. The Santa Clara Pueblo has partnered with 
the Service, BIA, USFS, New Mexico Natural Resource Department, and New 
Mexico Association of Conservation Districts. Habitat within the Pueblo 
is degraded relative to historic conditions for two main reasons: (1) 
River channelization that has caused drying of the floodplain, 
cessation of overbank flooding, and disruption of river function 
processes; and (2) intensive invasion by nonnative trees, primarily 
Russian olives. The increasing frequency and severity of fires in the 
Rio Grande riparian habitat, accompanied by changes in vegetation and 
the water regime, underscores the urgency of to reduce habitat 
stressors and improve the quality of riparian habitat.
    In 2006 and 2008, the Santa Clara Pueblo received a Tribal Wildlife 
Grant from the Service to help develop multi-storied riparian 
vegetation. These projects occurred at two separate locations (Big Rock 
Pond and Barrancos Arroyo), but both focused on reducing hazardous 
fuels, removal of trash, and wetland and riparian habitat expansion and 
enhancement. The Barrancos Arroyo Project resulted in planting over 
30,000 native shrubs, trees, and herbaceous wetland plants. In 2008, 
the Santa Clara Pueblo received a ``Habitat Enhancement Award'' from 
the New Mexico Riparian Council due to the Pueblo's outstanding 
riparian habitat improvement work.
    As mentioned above, in 2005 the Santa Clara Pueblo, along with the 
adjacent pueblos of Ohkay Owingeh and San Ildefonso partnered with the 
Corps by entering into an agreement to protect and improve riparian 
habitat, in part, by conducting a watershed feasibility study. This 
feasibility study, explores ways to holistically developed projects to 
improve the function of the river and reduce impacts of flooding that 
is anticipated to improve overall riparian habitat conditions, 
including those for the flycatcher.
Benefits of Inclusion--Ohkay Owingeh and Santa Clara Pueblo
    As discussed above under Application of Section 4(b)(2) of the Act, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat.
    The Rio Grande within the upper Rio Grande Management Units is 
known to be occupied by flycatchers and therefore, if a Federal action 
or permitting occurs, there is a catalyst for evaluation under section 
7 of the Act. Our section 7 consultation history at the pueblos of 
Ohkay Owingeh and Santa Clara shows that since listing, no formal 
section 7 consultations addressing the flycatcher have occurred 
implementing federal actions. We have conducted informal consultations 
with agencies implementing actions or providing funding on the pueblos, 
provided the technical assistance on project implementation, and the 
Corps has coordinated with the pueblos along the upper Rio Grande on 
projects. However, overall, since listing in 1995, no formal

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section 7 consultations have occurred at the pueblos of Ohkay Owingeh 
and Santa Clara. Effects to the flycatcher from federal projects have 
all resulted in insignificant and discountable conclusions because 
conservation measures have focused on habitat improvement and 
management for the flycatcher and its habitat. Because of how the 
Pueblo has chosen to manage and conserve their lands and the lack of 
past section 7 consultation history, we do not anticipate that actions 
by the pueblos would considerably change in the future, generating a 
noticeable increase in section 7 consultations that would cause impacts 
to flycatchers and flycatcher habitat. Therefore, with migratory and 
territorial flycatchers using the pueblos and no formal section 7 
consultations completed, the effect of a critical habitat designation 
on these lands is minimized.
    Should we designate critical habitat on the pueblos, our previous 
section 7 consultation history indicates that there could be some, but 
likely few, regulatory benefits to the flycatcher. As described above, 
even with flycatchers occurring on the pueblos, no formal flycatcher-
related section 7 consultations have occurred. Projects initiated by 
Federal agencies in the future could be associated with actions 
associated with maintenance of rights-of-way, water management, or 
implementation of grants or funding of habitat improvement projects. 
When we review projects addressing the flycatcher pursuant to section 7 
of the Act, we commonly examine conservation measures associated with 
the project for consistency with strategies described within the 
Recovery Plan. Where there is consistency with managing habitat and 
implementing appropriate conservation measures, it would be unlikely 
that a consultation would result in a determination of adverse 
modification of critical habitat. Therefore, when the threshold for 
adverse modification is not reached, only additional conservation 
recommendations could result from a section 7 consultation, but such 
measures would be discretionary on the part of the Federal agency. 
Because of how the pueblos have chosen to manage and conserve their 
lands and the lack of a past formal section 7 consultation history, we 
do not anticipate that the pueblos' actions would considerably change 
in the future, generating a noticeable increase in section 7 
consultations that would cause impacts to flycatchers and flycatcher 
habitat. Therefore, with migratory and territorial flycatchers using 
these tribal lands and no previous formal section 7 consultations 
completed, the effect of a critical habitat designation on these lands 
is minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
flycatcher that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also strengthen or reinforce some Federal laws such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    The pueblos are very familiar with the flycatcher and their habitat 
needs, and are working with the Service to address flycatcher 
management and recovery. Further, Pueblo lands were included in the 
proposed designation in 2004 and during this current designation 
process. Representatives from the pueblos have attended meetings with 
the Service discussing the flycatcher, its habitat and recovery, and 
critical habitat. Thus, the educational benefits that might follow 
critical habitat designation, such as providing information to the 
pueblos on areas that are important for the long-term survival and 
conservation of the species, may have already been provided. For these 
reasons, we believe there is little educational benefit or support for 
other laws and regulations attributable to critical habitat beyond 
those benefits already achieved from listing the flycatcher under the 
Act.
Benefits of Exclusion--Ohkay Owingeh and Santa Clara Pueblo
    The benefits of excluding the pueblos of Ohkay Owingeh and Santa 
Clara from designated critical habitat include: (1) The advancement of 
our Federal Indian Trust obligations and our deference to tribes to 
develop and implement tribal conservation and natural resource 
management plans for their lands and resources, which includes the 
flycatcher; (2) the conservation benefits to the flycatcher and its 
habitat that might not otherwise occur; and (3) the maintenance of 
effective collaboration and cooperation to promote the conservation of 
the flycatcher and its habitat, and other species.
    During the development of the flycatcher critical habitat proposal 
(and coordination for other critical habitat proposals) and other 
efforts such as development of the Recovery Plan, we have met and 
communicated with the pueblos to discuss how they might be affected by 
the regulations associated with flycatcher management, flycatcher 
recovery, and the designation of critical habitat. As such, we 
established relationships specific to flycatcher conservation. As part 
of our relationship, we have provided technical assistance to develop 
measures to conserve the flycatcher and its habitat on their lands. 
These proactive actions were conducted in accordance with Secretarial 
Order 3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the 
relevant provision of the Departmental Manual of the Department of the 
Interior (512 DM 2); and Secretarial Order 3317, ``Department of 
Interior Policy on Consultation with Indian Tribes'' (December 1, 
2011). We believe that the pueblos of Ohkay Owingeh and Santa Clara 
should be the governmental entities to manage and promote flycatcher 
conservation on their lands. During our communication with the pueblos 
of Ohkay Owingeh and Santa Clara, we recognized and endorsed their 
fundamental right to provide for tribal resource management activities, 
including those relating to riparian habitat.
    We have coordinated and collaborated with the pueblos of Ohkay 
Owingeh and Santa Clara on the management and recovery of the 
flycatcher and their habitat and have established a conservation 
partnership. The pueblos have expressed that their lands, and 
specifically riparian habitat, are connected to their cultural and 
religious beliefs, and as a result they have a strong commitment and 
reverence toward its stewardship and conservation. Many tribes and 
pueblos recognize that their management of riparian habitat and 
conservation of the flycatcher are common goals they share with the 
Service. The pueblos' management actions are evidence of their 
commitment toward measures to improve habitat consistent with 
strategies found in the Recovery Plan. Some of the common management 
plans strategies are maintaining riparian conservation areas, 
preserving habitat, improving habitat, reducing occurrence of fire, and 
conducting flycatcher surveys. The Ohkay Owingeh and Santa Clara 
Environmental Affairs Departments implement conservation measures to 
improve riparian habitat conditions. Having information on the

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distribution and abundance of flycatchers available to pueblos creates 
effective conservation through any project review process.
    The designation of critical habitat on the pueblos of Ohkay Owingeh 
and Santa Clara would be expected to adversely impact our working 
relationship. During our discussions with the pueblos and from comments 
we received on the proposed designation of critical habitat, they 
informed us that critical habitat would be viewed as an intrusion on 
their sovereign abilities to manage natural resources in accordance 
with their own policies, customs, and laws. The perceived restrictions 
of a critical habitat designation could have a more damaging effect to 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the flycatcher and other species. To 
this end, we found the pueblos of Ohkay Owingeh and Santa Clara would 
prefer to work with us on a government-to-government basis. For these 
reasons, we believe that our working relationships with would be better 
maintained if they were excluded from the designation of flycatcher 
critical habitat. We view this as a substantial benefit since we have 
developed a cooperative working relationship for the mutual benefit of 
flycatcher conservation and other endangered and threatened species.
    We indicated in the proposed rule that our final decision regarding 
the exclusions of tribal lands under 4(b)(2) of the Act would consider 
tribal management and the recognition of their capability to 
appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (76 
FR 50542, August 15, 2011, p. 50584). We also acknowledged our 
responsibilities to work directly with tribes in developing programs 
for healthy ecosystems, that tribal lands are not subject to the same 
controls as Federal public lands, our need to remain sensitive to 
Indian culture, and to make information available to tribes (76 FR 
50542, August 15, 2011, p. 50596). We identified all tribal land 
included within the proposal as areas we were considering for exclusion 
and our continued coordination with tribes and pueblos (76 FR 50542, 
August 15, 2011, pp. 50582-50583).
    We coordinated and communicated with the pueblos of Ohkay Owingeh 
and Santa Clara throughout the revision of flycatcher critical habitat 
by providing them information on: Implementation of section 4(b)(2) of 
the Act; the Recovery Plan; Management Plan templates, guidance, and 
review; critical habitat schedules, related documents, and public 
hearings; and our interest in consulting with them on a government-to-
government basis at their request. We also followed up our 
correspondence with telephone calls and electronic mail to assist with 
any questions. During the comment period, we received input from many 
tribes and pueblos and BIA offices expressing the view that designating 
flycatcher critical habitat on tribal land would adversely affect the 
Service's working relationship with all tribes. Many noted that 
beneficial cooperative working relationships between the Service and 
tribes have assisted in the conservation of listed species and other 
natural resources. They indicated that critical habitat designation on 
these tribes or pueblos would amount to additional Federal regulation 
of sovereign Nations' lands, and would be viewed as an unwarranted and 
unwanted intrusion into tribal natural resource programs. We conclude 
that our working relationships with the pueblos of Ohkay Owingeh and 
Santa Clara on a government-to-government basis has been extremely 
beneficial in implementing natural resource programs of mutual 
interest, and that these productive relationships would be compromised 
by a critical habitat designation of these lands.
    We have an effective working relationship with the pueblos of Ohkay 
Owingeh and Santa Clara, which was established and has evolved through 
informal consultations. We believe that the pueblos of Ohkay Owingeh 
and Santa Clara are willing to work cooperatively with us and others to 
benefit other listed species, but only if they view the relationship as 
mutually beneficial. Consequently, the development of future voluntary 
management actions for other listed species may be compromised if these 
lands are designated as critical habitat for the flycatcher. Thus, a 
benefit of excluding these lands is future conservation efforts that 
would benefit other listed species.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Ohkay Owingeh 
and Santa Clara Pueblo
    The benefits of including the pueblos of Ohkay Owingeh and Santa 
Clara in the critical habitat designation are limited to the 
incremental benefits gained through the regulatory requirement to 
consult under section 7 and consideration of the need to avoid adverse 
modification of critical habitat, agency and educational awareness, and 
the implementation of other law and regulations. However, as discussed 
in detail above, we believe these benefits are minimized because they 
are provided for through other mechanisms, such as (1) the advancement 
of our Federal Indian Trust obligations; (2) the conservation benefits 
to the flycatcher and its habitat from implementation of flycatcher 
conservation actions; and (3) the maintenance of effective 
collaboration and cooperation to promote the conservation of the 
flycatcher and its habitat.
    The benefits of excluding the pueblos of Ohkay Owingeh and Santa 
Clara from being designated as flycatcher critical habitat are more 
significant and include encouraging the continued implementation of 
tribal management and conservation measures such as monitoring, survey, 
habitat management and protection, and fire-risk reduction activities 
that are planned for the future or are currently being implemented. 
Overall, these conservation actions and management of flycatcher 
habitat likely accomplishes greater conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis (especially when these formal 
section 7 consultations rarely occur). These programs will allow the 
pueblos to manage their natural resources to benefit riparian habitat 
for the flycatcher, without the perception of Federal Government 
intrusion. This philosophy is also consistent with our published 
policies on Native American natural resource management. The exclusion 
of these areas will likely also provide additional benefits to the 
flycatcher and other listed species that would not otherwise be 
available without the Service's maintaining a cooperative working 
relationship. In conclusion, we find that the benefits of excluding the 
pueblos of Ohkay Owingeh and Santa Clara from critical habitat 
designation outweigh the benefits of including these areas.
Exclusion Will Not Result in Extinction of the Species--Ohkay Owingeh 
and Santa Clara Pueblo
    We have determined that exclusion of the pueblos of Ohkay Owingeh 
and Santa Clara will not result in extinction of the species. First, 
Federal activities on this area that may affect the flycatcher will 
require evaluation under section 7 of the Act, because the flycatcher 
occurs on these lands. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of listed species. 
Therefore, even without critical habitat designation on this land, 
federal activities that occur on these lands cannot jeopardize the

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continued existence of the flycatcher. Second, the pueblos are 
committed to protecting and managing Pueblo lands and species found on 
those lands according to their tribal, cultural, and natural resource 
management objectives, which provide conservation benefits for the 
species and its habitat. In short, the pueblos are committed to greater 
conservation measures on their land than would be available through the 
designation of critical habitat. Accordingly, we have determined that 
the pueblos of Ohkay Owingeh and Santa Clara should be excluded under 
section 4(b)(2) of the Act because the benefits of exclusion outweigh 
the benefits of inclusion and will not cause the extinction of the 
species.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the flycatcher during two comment 
periods. The first comment period associated with the publication of 
the proposed rule (76 FR 50542) opened on August 15, 2011, and closed 
on October 14, 2011. We also requested comments on the proposed 
critical habitat designation and associated draft economic analysis and 
draft environmental assessment during a comment period that opened on 
July 12, 2012, and closed on September 10, 2012 (77 FR 41147). We did 
receive one request for a public hearing from Globe County. We held a 
public hearing on August 16, 2012, in San Carlos, Arizona. We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule, draft economic analysis, and draft environmental 
assessment during these comment periods.
    During the two comment periods, we received over 240 comment 
letters on the proposed critical habitat designation, draft economic 
analysis, or draft environmental assessment. During the August 16, 
2012, public hearing, no individuals or organizations made comments on 
the designation of revised critical habitat for the flycatcher. All 
substantive information provided during comment periods has either been 
incorporated directly into this final determination or addressed below. 
Comments we received were grouped into several general issues 
specifically relating to the proposed critical habitat designation for 
the flycatcher and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from five 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the subspecies occurs, or familiarity with the 
principles of conservation biology. Of the five individuals contacted, 
four responded. The peer reviewers that submitted comments supported 
the science used to develop the proposal and provided us with comments, 
which are included in the summary below and incorporated into the final 
rule, as appropriate. We received comments from the peer reviewers 
during the comment period on our proposed rule. Peer reviewer comments 
are addressed in the following summary and incorporated into the final 
rule as appropriate.
    Comment (1): Peer reviewers commented that we made good use of the 
current data, published and gray literature, expert opinion, and the 
Recovery Plan (Service 2002, entire). Peer reviewers agreed with our 
justification to designate critical habitat as river segments, our 
definition of a large population, and that small populations in close 
proximity equaled a large population. With one clarification (see 
below), peer reviewers agreed with our rationale to use a 35-km (22-mi) 
radius to determine the degree of connectivity to assign smaller 
separate flycatcher breeding sites and the distance from large 
populations to evaluate for designation of areas as critical habitat. 
All reviewers who provided input agreed with our approach to use the 
Recovery Plan and expert opinion to select critical habitat segments 
where few or no territories were known. Additionally, all peer 
reviewers agreed with our identification of the importance of migration 
habitat and how we included it within the designation. Peer reviewers 
agreed with how we identified and categorized special management 
considerations or protections (see below for a clarifying comment) as 
well as our description of the lateral extend of critical habitat.
    Our Response: We believe we have considered and applied to this 
designation the best available scientific and commercial information 
regarding the flycatcher.
    Comment (2): One peer reviewer discussed the 35-km (22-mi) radius 
to determine connectivity, provided information on results of 
flycatcher movements in New Mexico, and commented on our use of the 
term ``regularly.'' The reviewer discussed that along the Middle Rio 
Grande in New Mexico, researchers have not witnessed the type of 
breeding flycatcher movements within years or between years reported in 
Paxton et al. (2007, p. 76). Shifts in territories may occur; however 
the statement in the proposal that flycatchers ``regularly'' will 
disperse or move to new breeding sites 30 to 40 km (18 to 25 mi) away 
within a particular basin within the same year may be an overstatement. 
The reviewer wrote that based on the detection and establishment of 
flycatcher territories along the Middle Rio Grande, flycatchers do not 
appear to regularly disperse more than a few kilometers or miles, and 
in general are not likely to disperse more than 16 to 24 km (10 to 15 
mi). Therefore, a reduction in the geographic extent of population 
connectivity should be considered.
    Our Response: In order to determine the connectivity of small 
separate flycatcher breeding sites and the distance from large 
populations to evaluate for critical habitat, we used the known 
between-year movements of banded adult and juvenile flycatchers 
reported from USGS (Paxton et al. 2007, p. 76). This study is the most 
comprehensive banding and movement study conducted on the flycatcher, 
occurring over a decade and involving the banding and tracking of over 
1,500 flycatchers (Paxton et al. 2007, p. 1). From one season to the 
next, flycatchers have returned very near to the area previously used 
(50 m (150 feet)) and have moved as far away as 444 km (275 mi). 
However, more common were movements toward the lower end of these two 
extremes. As opposed to using the word ``regularly'' as the peer 
reviewer noticed, we could have more accurately described that 
``locations with breeding habitat that are within 30 to 40 km (18 to 25 
mi) of each other will have higher meta-population connectivity, and 
there is a higher probability of colonization of new habitats that are 
within this distance (Paxton et al. 2007, p. 76).'' As a result of this 
change in wording, we believe the flycatcher movements detected in New 
Mexico are more accurately captured and the intent of our statement is 
clearer.
    Further, the shorter between-year distances detected on the Rio 
Grande in New Mexico may be a result of the recent success of nesting 
flycatchers at those sites. As USGS reported, ``the higher a 
flycatcher's productivity in one year, the more likely it was to return 
to the same territory the following year. Those individuals that had 
higher than normal reproductive success and showed territory fidelity 
continued to

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reproduce above average, while those that did poorly and moved tended 
to do better than in the previous year (Paxton et al. 2007, p. 76).''
    Comment (3): One peer reviewer discussed that it may be appropriate 
to describe the relative importance of the list of special management 
considerations and protections. The reviewer was concerned that because 
we referred to the elimination or reduction of exotic plants, this 
could be construed as having additional importance for flycatcher 
conservation. The reviewer described that the research does not support 
any difference in flycatcher health, reproductive success, or 
survivorship when comparing nesting flycatcher use of native vegetation 
to habitat dominated with exotic tamarisk.
    Our Response: We agree with the reviewer that the science 
demonstrates that flycatchers can be equally successful in both 
suitable exotic tamarisk and native vegetation (Sogge et al. 2005, p. 
1). Many of the previous beliefs associated with adverse impacts of 
tamarisk on reducing water supply and impacting wildlife populations 
were largely overstated or inaccurate (Shafroth et al. 2010, pp. viii-
xi).
    As a result, it is not our intention to suggest that removal or 
elimination of tamarisk is a preferred flycatcher management need. On 
the contrary, we believe that because of the sustained interest in the 
removal of tamarisk, our inclusion of this item is to provide measures 
that reduces the implementation of poorly designed projects, reduces 
temporal impacts to flycatcher habitat, and identifies strategies and 
considerations that would result in successful projects with improved 
overall habitat quality.
    For a number of reasons, we believe that flycatcher habitat that is 
comprised of tamarisk requires special management considerations and 
protections. Tamarisk can be more flammable than native vegetation, and 
there may be widespread future impacts to flycatcher habitat associated 
with the tamarisk leaf beetle. In order to address these issues, where 
flycatcher habitat is comprised of tamarisk, it is important to 
understand that reducing the proportion of tamarisk may be largely 
dependent on reducing land or water management stressors that may be 
preventing native vegetation from flourishing. As a result, our special 
management considerations and protections emphasize retaining native 
and exotic vegetation, while improving the distribution, abundance, and 
quality of flycatcher habitat by improving hydrologic conditions and 
reducing land management stressors. We encourage implementing 
strategies found in the Recovery Plan (Service 2002, Appendices H and 
K).

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Accordingly, we provided notice about our proposed rule to all six 
States where critical habitat was proposed (California, Nevada, 
Arizona, Utah, New Mexico, and Colorado). Comments we received from 
States regarding the proposal to designate revised critical habitat for 
the flycatcher are addressed below. We received comments from State 
agencies of Arizona, Nevada, New Mexico, and Colorado. We also received 
a comment from Utah Governor's office. Two State agencies (AGFD and New 
Mexico Department of Game and Fish) expressed specific support for the 
Service's approach to designating critical habitat for the flycatcher.
    Comment (4): The Service has failed to cooperate or consult with 
State and local agencies prior to designating critical habitat for the 
flycatcher as required under sections 2(c)(2) and 7(a)(2) of the Act. 
``Consultation with affected States,'' where required by statute but 
not defined by Congress, means something more than the invitation of 
comments from the public; the commenter cited California Wilderness 
Coalition v. United States Dept. of Energy, 631 F.3d 1072, 1087 (9th 
Cir. 2011) in support of this argument.
    Our Response: During this designation process, we requested 
information from, and coordinated development of, the proposed critical 
habitat designation with appropriate State resource agencies in 
Arizona, Utah, Nevada, California, New Mexico, and Colorado. The 
Service received substantial information from a variety of partners, 
including the States, to help us refine the final critical habitat 
designation. The final rule has been adjusted, accordingly, including 
modifying boundaries of critical habitat units, based on information 
provided from peer review and public comments on site specific 
biological expertise on the flycatcher. A summary of comments from 
States is provided below.
    Comment (5): We received several comments from State resource 
agencies presenting site-specific information on areas that should or 
should not be considered as critical habitat and areas that we should 
consider for exclusion.
    Our Response: The information received from our State resource 
agency partners was very helpful, and enabled us to refine our 
understanding of habitat essential to the conservation of the species, 
and in the case of occupied habitat, habitat that contains physical or 
biological features that may require special management considerations 
or protections. We based the proposed rule on the best available 
information at that time; we requested technical input from a variety 
of partners, including the States, to help us refine the final critical 
habitat designation. The final rule has been adjusted accordingly, 
including modifying boundaries of critical habitat units, based on our 
partners' site-specific biological expertise with the species (see 
Summary of Changes from Proposed Rule section).
    Comment (6): Although reevaluation of recovery goals is not 
included in the proposed rule, the New Mexico Department of Game and 
Fish suggests establishing recovery goals in the future for the Pecos 
River and designating Rattlesnake Springs, Eddy County, New Mexico, as 
critical habitat.
    Our Response: The Recovery Plan does not currently have recovery 
goals or a management unit established for the Pecos River, therefore, 
we did not propose any areas in the Pecos River drainage as critical 
habitat. The small population of flycatcher territories at Rattlesnake 
Springs continues to be monitored by the New Mexico Department of Game 
and Fish and Carlsbad Caverns National Park. Although this location is 
not included within units where goals have been established, these 
areas and territories are still subject to consultation under the 
jeopardy provisions of section 7 of the Act and may play a role in 
recovery with regards to source population and population stability.
    Comment (7): The Colorado Department of Natural Resources urges an 
assessment of the genetic status and distribution of the flycatcher. 
Further, other commenters noted that there are questions associated 
with the northern portion of the flycatcher's range and the boundaries 
of the range of the southwestern subspecies.
    Our Response: We are familiar with this issue, and the collection 
and analysis of genetic information from breeding flycatchers and 
history of adjustment of the northern boundary in Utah and Colorado is 
discussed within the proposed rule. Following the analysis of 
flycatcher genetic material across the northern part of the bird's 
range (Paxton 2000, pp. 3, 18-20), the northern boundary of this 
southwestern subspecies in Utah and Colorado was reduced (Service 2002, 
Figure 3). As a result, the southwestern subspecies'

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range only occurs in the southernmost portions of Utah and Colorado. 
This is consistent with morphological characteristics of museum 
specimens, where Behle (1985, pp. 54-57) argued that flycatchers in 
northernmost Utah were E. t. adastus, those in the extreme southern 
part of the State were E. t. extimus.
    The U.S. Geological Survey has continued to collect genetic 
information to help refine the northern boundary of the subspecies' 
range in Utah, Colorado, and New Mexico (Paxton et al. 2007a, entire). 
They reconfirmed the genetic markers that identify differences among 
flycatcher subspecies, with breeding sites clustering into two groups 
separated approximately along the currently recognized boundary. A 
complication in refining the subspecies' northern boundary is that this 
region is sparsely populated with breeding flycatchers, and therefore 
only minimal information is available (Paxton et al. 2007a, p. 16). We 
encourage the survey and detection of flycatcher territories and 
collection of genetic samples to further our understanding of this 
area, but we currently recognize the northern geographic boundary of 
the flycatcher as described in the Recovery Plan (Service 2002, Figures 
3, 4).
    Comment (8): The Utah Governor's office recommended that the 
Service analyze the habitat value of Kanab Creek from the Highway 89 
Bridge to the Stateline, as Utah Division of Wildlife Resources' 
surveys detect flycatchers using this segment and some flycatchers have 
remained through the breeding season.
    Our Response: Kanab Creek occurs within the Middle Colorado 
Management Unit. From 2000 to 2007, a single site was surveyed seven 
times (Sogge and Durst 2008). No flycatcher territories were detected 
in 6 years, and two territories were detected in 2002 (Sogge and Durst 
2008). Our methodology focused on identifying areas of habitat that are 
important for reaching the numerical territory and habitat-related 
goals described in the Recovery Plan. We proposed just over 74 km (46 
mi) along the Colorado River as flycatcher critical habitat within the 
Middle Colorado River Management Unit. We believe these areas are 
capable of reaching the 25 territory goal established in the Recovery 
Plan.
    We expect that in some Management Units, critical habitat will not 
be designated in all locations where flycatcher habitat occurs or may 
occur, or where territories have been detected. While this portion of 
Kanab Creek has had nesting flycatcher habitat, the reliability and 
abundance of flycatcher habitat and territories appears to be limited. 
Although we did not designate it as critical habitat, it can still 
contribute to flycatcher recovery and is subject to evaluation of 
Federal actions under the jeopardy standards of section 7 of the Act.
    Comment (9): The NDOW recommended that the Service consider 
excluding the proposed critical habitat areas within the Pahranagat NWR 
from the final critical habitat designation.
    Our Response: We have reevaluated the habitat at the Pahranagat NWR 
and our final designation is reduced from the amount that was proposed 
(see Summary of Changes from Proposed Rule section). The remaining area 
is owned and managed by the Service. In general, we found there are 
benefits to including federally owned area in the designation of 
critical habitat because of the Federal agencies' obligation to consult 
under section 7 of the Act on activities that may adversely modify 
critical habitat. The consultation requirement provides some benefit to 
flycatcher conservation. We expect that ongoing conservation efforts in 
this area will continue with or without critical habitat designation, 
limiting the benefits of excluding the area. Consequently, we have not 
determined that the benefits of excluding these areas outweigh the 
benefits of including these areas.
    Comment (10): AGFD supports exclusion of Upper Alamo Lake Area from 
designation of critical habitat, including sections of the Bill 
Williams, Santa Maria, and Big Sandy Rivers that are included under the 
existing Alamo Lake State Wildlife Area Management Plan.
    Our Response: We identified this area as an area for possible 
exclusion in our proposed rule based on the existence of a management 
plan. We continue to acknowledge that excluding this area would provide 
benefits to our partnership with AGFD. The Alamo State Wildlife Area 
has a successful management plan that provides for maintenance of 
flycatcher habitat and other species. Although recreation and wildlife 
at Alamo Lake is managed by the AGFD under agreement with the Corps, 
the conservation space of Alamo Lake and Alamo Dam is owned and the dam 
operated by the Corps. Alamo Dam is operated primarily for flood 
control (as compared to water storage and delivery for other 
reservoirs) and typically remains at low levels, permitting occupancy 
of flycatcher habitat. The Corps has consulted with the Service in the 
past on dam operations and the potential effects to the flycatcher. To 
date, those operations have supported the maintenance of flycatcher 
territories at Alamo Lake and downstream along the Bill Williams River. 
The Corps maintains an obligation to consult under section 7 of the Act 
on their current operations, and those uncertain future operations or 
activities that may adversely modify critical habitat. As a result, the 
consultation requirement provides some benefit to flycatcher 
conservation. In addition, we expect that ongoing conservation efforts 
in this area will continue with or without critical habitat 
designation, limiting the benefits of excluding the area. Consequently, 
after reviewing the best available information, we have determined that 
the benefits of including these Federal lands as critical habitat 
outweigh the benefits of excluding this area.
    Comment (11): Multiple commenters questioned the proposed 
designations on the Paria and San Juan Rivers. Specifically, one 
commenter asserted that the habitat along the Paria and San Juan Rivers 
is not suitable for breeding populations of flycatchers and should not 
be incorporated into a critical habitat designation. Survey notes 
indicated that these segments are ephemeral and dominated by exotic 
vegetation. Survey hours resulted in only rare observations of migrant 
flycatchers, and the Utah Governor's office contends there is no 
evidence of willow flycatcher occupancy ever on the Utah portion of the 
San Juan River and specifically questioned the rationale for 
designating the San Juan River as critical habitat when no nesting 
areas occur on the river.
    Our Response: The Paria and San Juan Rivers are a part of the Upper 
Colorado Recovery Unit, primarily occurring throughout the Four Corners 
area of Utah, Colorado, Arizona, and New Mexico. We recognize that 
limited information exists for this area, and, through our proposed 
rule, we sought additional information. We have results from site-
specific, project-related surveys, but we are not familiar with any 
comprehensive or long-term surveys along these streams. The flycatcher 
has been detected in this area in the past (likely as a migrant), no 
nesting flycatchers have been detected here.
    The Flycatcher Recovery Team discussed that the low number of 
breeding sites and territories within the Upper Colorado Recovery Unit 
is probably a function of relatively low survey effort rather than an 
accurate reflection of the bird's actual numbers and distribution 
(Service 2002, p. 64) and that much willow riparian habitat occurs 
along drainages within this Recovery Unit and remains to be surveyed 
(Service 2002, p. 64).

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    Because the flycatcher is an endangered species, recognized by both 
the Service and the State of Utah, it is expected that their 
distribution and abundance is diminished. The absence of detecting 
recent flycatcher territories along the San Juan River in Utah is 
believed to be partly due to its rarity as an endangered species and 
also to the relatively low survey effort (Service 2002, p. 64). Unitt's 
(1987, p. 150) document, titled ``Empidonax traillii extimus: An 
Endangered Subspecies,'' summarized some of the recent Utah historical 
distribution, describing flycatcher summer nesting season occurrence 
along the Virgin, San Juan, and Colorado Rivers.
    In contrast to our 2005 designation of flycatcher critical habitat, 
where we did not propose or designate critical habitat in the Upper 
Colorado Recovery Unit, the objective of this revision was to propose 
critical habitat in a distribution and abundance to meet Recovery Plan 
goals. The Recovery Team established goals of 25 flycatcher territories 
in both the San Juan and Powell Management Units, the only Management 
Units within the Upper Colorado Recovery Unit.
    Although these segments of the Paria River and the San Juan River 
were not within the geographical area known to be occupied by 
flycatchers at the time of listing, these areas may be able to sustain 
flycatcher habitat and territories and therefore are essential to 
flycatcher conservation in order to help meet recovery goals in these 
Management Units. These areas were identified as having substantial 
recovery value in the Recovery Plan and are anticipated to provide 
flycatcher habitat for metapopulation stability, gene connectivity 
through these portions of the flycatcher's range, protection against 
catastrophic population loss, and population growth and colonization 
potential. As a result, these river segments and associated flycatcher 
habitats are anticipated to support the strategy, rationale, and 
science of flycatcher conservation in order to meet territory and 
habitat-related recovery goals.
    We agree that tamarisk occurs within these streams, but as 
described in the proposed and this final rule, tamarisk (and Russian 
olive) provides suitable habitat for flycatchers in either monotypic 
stands or mixed with native vegetation. While flycatcher habitat is 
most commonly associated with perennial streams, flycatcher territories 
do occur along intermittent streams that can go dry during the breeding 
season.
    Comment (12): We also received a comment that the Paria River is 
unsuitable due to the presence of two roads, an operating farm, and an 
active gravel pit. The heavily traveled Cottonwood Road directly abuts 
the Paria River segment for 6 km (4 mi). Flycatcher territories were 
lost when bridges were built across riparian areas (Service 2002, p. 
37), and the lateral presence of these roads is far more intrusive than 
a bridge. Given that the Service has not studied the effects of a road 
on potential habitat, the commenter believed it would be arbitrary for 
the Service to designate the Paria River segment. The comment stated 
that the farm and gravel pit on 2.4 km (1.5 mi) greatly reduce the size 
of the entire segment, and the continuing human activity in the narrow 
corridor renders the Paria River segment unsuitable. Therefore, the 
Paria River lacks the listed primary constituent elements and is 
unsuitable due to the narrow canyon and human disturbance.
    Our Response: While human activities can negatively impact willow 
flycatcher habitat, some willow flycatcher territories persist within 
urban areas and adjacent to human disturbance. Therefore, the presence 
of the road, gravel pit, and farm do not preclude the Paria River from 
consideration as critical habitat.
    Comment (13): The Utah Governor's office also expressed concern 
about the potential economic impacts of designating critical habitat 
along the San Juan River in San Juan County, Utah (San Juan Management 
Unit). Specifically, the entities state that existing land use 
activities include river rafting and camping, livestock grazing, oil 
and gas exploration and production, sand and gravel extraction, 
irrigated farming, habitat management of wildland fire fuels, and 
mining. In addition, private property values could be affected.
    Our Response: Potential economic impacts associated with these 
activities are discussed in the draft economic analysis. Specifically, 
recreation-related enterprises and agricultural activity undertaken by 
the Navajo Nation are discussed in paragraphs 353 through 355 of the 
draft economic analysis. Potential impacts to development activities on 
the Navajo Reservation (utilities, transportation, sewer management, 
and residential development) are discussed in paragraph 432. Additional 
potential transportation impacts are discussed in paragraph 501. 
Finally, oil and gas development in this management unit are discussed 
extensively in Chapter 8. Our evaluation found that all of these 
activities will only result in baseline costs (associated with the 
listing of the flycatcher, and incremental impacts in this area are 
limited to administrative costs.
    Comment (14): State agencies from Colorado and New Mexico, the 
USBR, and other commenters asked the Service to exclude the area on the 
Rio Grande within Elephant Butte Reservoir in Sierra and Socorro 
Counties, New Mexico, under section 4(b)(2) of the Act. The reasons for 
exclusion as outlined by USBR fall under four categories: (1) Treaty 
obligations and national security considerations; (2) benefits of a 
management plan; (3) water storage and persistence of primary 
constituent elements; and (4) economic value of water deliveries. 
Further, the Colorado Department of Natural Resources commented that 
the designation of critical habitat on the Rio Grande could affect the 
Rio Grande Compact between New Mexico, Texas, and Colorado.
    Our Response: As part of the revised critical habitat, the Service 
proposed a 211-km (131-mi) segment of the Rio Grande, within the Middle 
Rio Grande Management Unit, that includes a 45.7-km (28.4-mi) portion 
within Elephant Butte Reservoir. Over time, as the lake at Elephant 
Butte has declined, there has been an increase of willows and other 
trees in the delta of Elephant Butte Reservoir, and also an increase in 
flycatcher territories within the reservoir pool and north of the 
reservoir pool where the habitat is supported by the low-flow 
conveyance channel. The area within and north of Elephant Butte 
Reservoir supports the largest known population of flycatchers in the 
range of the subspecies. In our proposed rule, we also identified this 
location as an area we were considering for exclusion under section 
4(b)(2) of the Act due to potential impact on water operations. After 
reviewing the best available scientific information, we have determined 
that the benefits of including the Elephant Butte Reservoir as critical 
habitat outweigh the benefits of excluding this area in the final 
designation, as discussed in the following paragraphs.
    With regard to treaty obligations and national security 
considerations, USBR provided information describing their commitments 
for water delivery, including deliveries to Mexico. They assert that 
designation of critical habitat would impact their ability to meet 
these commitments and lead to national security issues. We have no 
information which suggests that designation of critical habitat in this 
area would preclude USBR from meeting their commitments under these 
treaties, nor do we have any indication from the Department of Defense 
that designation

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in this area may present a national security concern.
    USBR provided a conservation plan for the flycatcher during the 
comment period for the proposed critical habitat designation. The plan 
includes provisions to monitor flycatcher populations and their 
habitat, to maintain at least 100 territories, and to proceed with 
future habitat creation and restoration plans over the next 10 years. 
However, we are not aware that the provisions or measures in the plan 
have been implemented and shown to be effective. We expect to consult 
under section 7 with USBR on the ongoing operations of the reservoir 
and their management plan within two years to address any discretionary 
actions by USBR that may affect the flycatcher. The results of this 
consultation and ongoing management efforts could affect what is 
considered critical habitat in this area in any future critical habitat 
analysis. As a consequence, we may revise critical habitat in the 
future as our resources allow.
    With regard to water storage and elements of essential physical and 
biological features, USBR provided information documenting that 
habitats and their primary constituent elements are temporary and 
dependent on the level of the reservoir and, as such, these areas 
should not be considered essential to the conservation of the species. 
The proposed critical habitat rule explains that the dynamic nature of 
riparian vegetation, dependent as it is on hydrological conditions, is 
an important characteristic of flycatcher habitat. This is also true of 
dynamic habitats along reservoirs that vary in water elevation stage. 
As a result, the shoreline areas of reservoirs can provide the 
essential physical and biological features that define flycatcher 
critical habitat. Therefore, it would not be appropriate to exclude the 
area from consideration as critical habitat based solely on the premise 
that some elements of the habitat may be temporary in nature.
    Finally, USBR provided extensive information documenting the 
economic value of the water deliveries they facilitate including both 
the value of the water itself and the value of the water in income to 
users. There is no disputing the economic value of the water 
deliveries; however, there is no information to suggest that 
designation of critical habitat will disrupt those water deliveries. 
Specifically on point, the economic analysis investigated this issue 
and determined that any impacts to water resources from Elephant Butte 
Reservoir would be associated with baseline costs (costs attributable 
to listing the flycatcher as an endangered species), not the 
incremental impact of critical habitat designation. The rationale for 
this conclusion is that, because the area is currently occupied, 
consultation under the jeopardy standard is required with or without 
critical habitat, and that project modifications that may be required 
to avoid adverse modification are not likely to differ practically from 
project modifications that may be required to avoid jeopardy. In total, 
the economic analysis found that $25,000 in incremental impacts may 
occur at Elephant Butte Reservoir associated with the administrative 
costs of completing consultations under the adverse modification 
standard. Consequently, we determined that the benefits of including 
this area from designation of critical habitat outweigh the benefits of 
excluding the area, and thus, this area is included in the final 
designation of critical habitat.
    Although the Secretary chose not to exercise his discretion to 
exclude the Rio Grande within Elephant Butte Reservoir in its entirety 
under section 4(b)(2) of the Act, we did reevaluate the Rio Grande 
within the Middle Rio Grande Management Unit and found that the most 
downstream portions of the river segment within Elephant Butte 
Reservoir in the Middle Rio Grande Management Unit did not meet our 
criteria for, and therefore, our definition of, flycatcher critical 
habitat. We found that the 31.4-km (19.5-mi) downstream portion of the 
proposed segment within the active storage pool of Elephant Butte 
Reservoir contains some of the elements of physical or biological 
features of flycatcher habitat along the reservoir edge. However, in 
the Middle Rio Grande Management Unit, the habitat features in this 
most downstream portion are not essential to flycatcher conservation 
because the number of flycatcher territories and amount of habitat in 
the farther upstream portion (about 180 km, 112 mi) of this segment 
have already far exceeded the recovery goals for this management unit. 
As a result, the most downstream portion of the Rio Grande in Elephant 
Butte Reservoir is not necessary for the conservation of flycatcher, as 
the Unit without this portion meets the quantity of habitat and 
territories identified as essential for this Management Unit (refer to 
our Criteria Used To Identify Critical Habitat section). Therefore, we 
are not including this portion in the designation for this Management 
Unit (see Summary of Changes from Proposed Rule).
    Comment (15): The New Mexico Interstate Stream Commission states 
that a key assumption of the economic analysis is that critical habitat 
will not require changes in water level operations or loss of storage 
capacity. The commenter states that this assumption is illogical, 
incorrect, and inconsistent with Office of Management and Budget (OMB) 
guidelines for Federal agencies conducting an economic analysis of 
proposed regulations, which are required to apply the ``best assessment 
of the way the world would look absent the proposed action.'' The 
commenter states that no evidence or logic is evident in the report 
that supports the assumptions that the operating pool will not require 
changes in water level operations or loss of storage capacity.
    Our Response: The commenter is correct that the assumption in the 
economic analysis that water operations will not change as a result of 
critical habitat designation for flycatcher is key to the analysis. 
However, the reasons for this assumption are articulated in Chapter 3 
of the economic analysis. The reasons are repeated here. First, in 
areas where flycatcher presence is known, an extensive consultation 
history exists with regard to impacts of flycatcher on water 
management, with at least 35 formal consultations on water actions 
being conducted on flycatcher since 1996. Several habitat conservation 
plans (HCPs) already exist for flycatcher related to water management 
issues, some covering large river stretches, including the Lower 
Colorado Multi-Species Conservation Program. On the Middle Rio Grande, 
a long-term biological opinion has been issued addressing flycatcher 
and the Rio Grande silvery minnow, and a large Middle Rio Grande 
Endangered Species Collaborative Program exists. On the Kern, Salt, and 
Verde Rivers, HCPs have been developed related to operations of water 
management facilities. All of the existing plans have included 
conservation actions for the flycatcher, and many have included habitat 
mitigation, but none to date has required changes to water operations 
for flycatcher such that downstream flow to water users have been 
affected. Due to the extensive history of management of flycatcher 
through incidental take permit development, the economic analysis 
assumes that, in areas where flycatcher territories have been detected, 
water managers will pursue an incidental take permit or statement for 
current operations as part of an HCP or section 7 biological opinion.
    The 2005 economic analysis considered the potential for flycatcher 
conservation to result in changes to dam operations in order to avoid 
adverse effects on flycatcher habitat. However,

[[Page 467]]

management agencies have asserted in some cases that they lack legal 
discretion to release water for flycatcher management purposes. For 
example, in Defenders of Wildlife v. Norton, 257 F. Supp. 2d 53 (D.D.C. 
2003), the Federal district court held that USBR lacked discretion to 
provide water for species in the Colorado Delta because USBR was 
precluded from changing Colorado River operations by the Colorado River 
compact. Other court cases addressing section 7 consultation between 
USBR and the Service have upheld the use of off-site mitigation, as is 
often contemplated in incidental take permits for the flycatcher, and 
allowed USBR to raise the level of the lake above existing flycatcher 
habitat (see Southwest Center v. U.S. Bureau of Reclamation, 143 F.3d 
515, (9th Cir. 1998) and Southwest Center for Biological Diversity v. 
U.S. Bureau of Reclamation, 6 F. Supp. 2d 1119 (D.Az. 1997)). Based on 
these findings, it appears unlikely that flycatcher conservation 
efforts, regardless of critical habitat designation, will result in 
changes in dam operations beyond those conservation activities outlined 
in an incidental take permit. Therefore, the analysis does not estimate 
the potential magnitude of impacts associated with changes in dam 
operations, such as maintaining water levels at an elevation at or 
below flycatcher habitat areas, or the cost of replacing water 
supplies, either under the baseline or incrementally due to critical 
habitat designation.
    As noted in Chapter 2 of the draft economic analysis, the Service 
states that in a scenario where a section 7 consultation resulted in 
both a jeopardy and adverse modification finding under each different 
standard, it is likely that conservation measures by the Federal agency 
that might be required to avoid jeopardy would be similar to those 
required to avoid adverse modification. As noted in Chapters 2 and 3 of 
the draft economic analysis, the Service found no instances where 
actual project modifications were previously required to avoid 
destruction or adverse modification of critical habitat in a review of 
the past consultation record for flycatcher both with and without 
critical habitat. As such, in areas where flycatcher territories have 
been detected or flycatcher presence is known, this analysis assumes 
that a future HCP or section 7 consultation will be developed or 
undertaken, but that resulting conservation efforts will not differ 
than those that would have occurred absent critical habitat. That is, 
quantified incremental impacts of future consultations in the areas 
either occupied by the species, or where the species is otherwise 
currently managed for, are assumed to be limited to the additional, 
minor administrative costs of considering the potential for the project 
to adversely modify critical habitat.
    Comment (16): The New Mexico Interstate Stream Commission states 
that the costs incurred by water officials, including developing new 
State or local law, ordinances, or policy to protect sensitive habitat 
within the storage pool at Elephant Butte Reservoir are not addressed 
in the economic analysis.
    Our Response: The economic analysis includes estimated costs of 
efforts to manage flycatchers at Elephant Butte Reservoir of $10.1 to 
$84.7 million. To calculate this, we use the reservoir's large storage 
capacity and the cost per acre-foot of management efforts, developed as 
part of biological opinions and HCPs developed elsewhere, as a proxy. 
While the analysis does not attempt to parse out the costs by specific 
use, the per-acre-foot cost was developed from estimates that 
incorporated program management costs. In Chapter 3, the final economic 
analysis now acknowledges that some costs may be associated with the 
development of law, ordinances, or policies by managing agencies 
related to flycatcher management. Because the population of flycatchers 
is very large at Elephant Butte, and agencies are already aware and 
conducting consultations on the flycatcher both at the Reservoir and in 
areas downstream, and because the Service does not anticipate that 
requirements to protect critical habitat will differ from requirements 
to protect the species in areas that are already being managed for the 
species, costs are attributed to the baseline, as they would be 
anticipated to occur even absent critical habitat for flycatcher.
    Comment (17): The New Mexico Interstate Stream Commission states 
that Elephant Butte Reservoir is a known and highly valued recreational 
area that attracts regional visitors seeking boating, camping, fishing, 
and other recreational activities that are supported by well-
established marinas and commercial businesses at the reservoir and 
nearby towns. Designation of the proposed critical habitat will reduce 
the surface water area available for boaters and water content for fish 
species within the reservoir, imposing a direct and negative economic 
impact on visitation and revenues. The value of this lost recreation 
was provided in earlier public comment by USBR and should be included 
in the economic analysis. Furthermore, lost recreational revenue 
associated with the designation of riparian habitat along the Middle 
Rio Grande riparian corridor and the Upper Rio Grande Basin should be 
included in the economic analysis.
    Our Response: USBR estimates that recreation users spend, in 
aggregate, between 1 and 2 million user-days at Elephant Butte each 
year and spend approximately $26.28 per day in the region. The Agency 
states that if the surface water elevation is lowered, fewer recreation 
user days will occur. We have not included this estimate in our 
economic analysis, because the Service does not anticipate that the 
surface water elevation of the reservoir will decrease as a result of 
the presence of the flycatcher or designated critical habitat (see 
paragraphs 99 and 176 through 178 of the draft economic analysis).
    Comment (18): The New Mexico Interstate Stream Commission inquired 
about the Rio Fernando within the Upper Rio Grande Management Unit and 
sought clarification on stream conditions and the importance of this 
area for flycatcher recovery.
    Our Response: Flycatcher territories were detected along the Rio 
Fernando in 2008, and are still known to occur. Although this stream 
segment is relatively short, there is sufficient habitat to support 
several nesting pairs. Within the Upper Rio Grande Management Unit, the 
recovery goal is 75 territories and the known single year high is 39 
territories, detected in 2000. The Rio Grande, Rio Grande del Rancho, 
and Coyote Creek were identified within this Management Unit as having 
substantial recovery value in the Recovery Plan (Service 2002, p. 92). 
These three segments, along with the essential Rio Fernando segment, 
are anticipated to provide flycatcher habitat for metapopulation 
stability, gene connectivity through this portion of the flycatcher's 
range, protection against catastrophic population loss, and population 
growth and colonization potential. As a result, these river segments 
and associated flycatcher habitat are anticipated to support the 
strategy, rationale, and science of flycatcher conservation in order to 
meet territory and habitat-related recovery goals.
    Comment (19): The New Mexico Department of Agriculture suggested 
that the Service provide an analysis that recognizes the agricultural 
industry in the environmental assessment.
    Our Response: The impacts envisioned in the comment letter related 
to the availability of irrigation water. While the economic analysis 
does not include a chapter specifically titled ``agriculture,'' Chapter 
3 discusses

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potential impacts on water management, including irrigation diversions, 
in great detail. We do not anticipate changes in the amount of water 
available as a result of the listing or designation. Rather, the water 
projects have historically obtained incidental take permits by 
completing HCPs that generally involve acquiring mitigation lands and 
various management activities. Because changes in flow are not 
anticipated, impacts to downstream agricultural users are not 
anticipated.
    Comment (20): The New Mexico Department of Agriculture disagrees 
with the statement in the draft environmental assessment that 
``potential impacts to the quality of the environment are not likely to 
be highly controversial'' and, instead, suggests the ``potential 
impacts * * * may result in varying degrees of controversy.''
    Our Response: The environmental assessment acknowledges prior 
controversy. The Service believes that, with the combination of 
exclusions and voluntary conservation measures in place, the likely 
impacts of the proposed designation would not be highly controversial. 
The Service understands that, given the prior history of designation, 
some level of controversy may result.

Comments From Federal Agencies

    Comment (21): One commenter stated that they oppose the designation 
of critical habitat on military lands.
    Our Response: Within this revision, we identified important streams 
for flycatcher habitat and recovery to propose as critical habitat at 
Vandenberg Air Force Base within the Santa Ynez Management Unit and 
Marine Corps Base Camp Pendleton and Naval Weapons Station Seal Beach 
Detachment Fallbrook (Fallbrook Naval Weapons Station) within the San 
Diego Management Unit. After the identification of these lands, we 
evaluated the conservation and management of these lands by these 
military installations as provided in their INRMPs. We described and 
evaluated the conservation measures for each of these installations in 
our proposal and this final rule and concluded that each provides a 
benefit to the flycatcher and its habitat. As a result, we conclude 
that the areas we identified as important for the flycatcher habitat 
are exempt from critical habitat designation under section 4(a)(3) of 
the Act (see Application of Section 4(a)(3) of the Act section above).
    Comment (22): A Federal agency suggested that the Cienega Creek 
segment in southern Arizona within the Santa Cruz Management Unit 
should be expanded to include the entirety of the creek from the 
headwaters downstream because this is high-quality habitat where 
flycatchers have been documented.
    Our Response: The BLM provided us new information during the 
comment period about a breeding flycatcher detected on Empire Gulch (a 
tributary to the headwaters of Cienega Creek) and habitat quality for 
breeding and migrating flycatchers along Cienega Creek. We discussed 
these comments with the BLM, incorporated their recommendations into 
our proposal within our July 12, 2012, amendments to the proposed rule 
(76 FR 41147, p. 41151), and subsequently have included two short 
segments of Empire Gulch and a longer segment of Cienega Creek in our 
final designation (see Critical Habitat Unit Descriptions, Gila 
Recovery Unit section above).
    Comment (23): A commenter stated that under the recent consultation 
for Nationwide Aerial Application of Fire Retardant on USFS lands, 
retardant use within flycatcher critical habitat on national forests 
would be avoided. The commenter stated that, although the proposed 
critical habitat was not considered in that analysis, it too will 
likely be avoided by the same size buffer zones. However, the commenter 
believes that newly designated critical habitat identified in the final 
rule will need to be reviewed by the individual national forests at 
that time to determine if there would need to be any exceptions or 
modifications to the standard buffer zones. The commenter states that 
the national forests will consult as appropriate at that time, and the 
new areas will then be included in fire retardant avoidance maps prior 
to the upcoming fire season.
    Our Response: We appreciate the commenter's information and 
willingness to incorporate this final critical habitat designation into 
consideration of fire retardant use on USFS lands. We look forward to 
working with the USFS for future discussion of fire retardant use and 
avoidance of its use on National Forest System lands that might affect 
this revised critical habitat designation for the flycatcher.
    Comment (24): One commenter noted that the NPS is currently 
conducting a special resource study of the San Gabriel River watershed 
and the San Gabriel Mountains regarding the formation of the San 
Gabriel Region National Recreation Area in California. The purpose of 
such action would be to increase recreational opportunities in the 
area, including riding, cycling, hiking and picnicking. The Service 
should consider the impacts of critical habitat designation on the 
proposed National Recreation Area.
    Our Response: The NPS's study, including its recommendations, is 
scheduled to be transmitted to Congress this year. At this time, given 
the uncertainty associated with the various alternatives proposed in 
the study and likely action taken by Congress, we are unable to 
estimate the potential effects of the designated critical habitat on 
recreational opportunities arising from a National Recreation Area. 
However, a discussion of the study and possible action by Congress has 
been added to Chapter 10 of the final economic analysis.
    Comment (25): The Corps requested we exclude the South Fork Kern 
River (including upper Lake Isabella) and Canebrake Creek, California, 
located within the South Fork Kern River Wildlife Area, as well as 
Hafenfeld and Sprague Ranches, from the revised critical habitat 
designation, because current management of Lake Isabella Reservoir 
benefits flycatcher habitat and a designation could impact the 
management purpose of the reservoir for flood control and water supply. 
The commenter indicated that the Sprague and Hafenfeld properties are 
managed under a conservation easement or management plan to benefit 
flycatchers. The commenter also noted that Lake Isabella Reservoir is 
managed in compliance with all terms and conditions of the Service's 
2000 biological opinion on long-term operations of Lake Isabella 
Reservoir that addressed effects to the flycatcher and its critical 
habitat designated at that time.
    Our Response: On the basis of the conservation easement and 
management plan in place with private partnerships, the Sprague Ranch 
and Hafenfeld Ranch have been excluded from this final designation (see 
Exclusions section above).
    However, the South Fork Kern Wildlife Area is owned by the Corps 
and managed by the USFS. In contrast to the non-federally owned Sprague 
Ranch and Hafenfeld Ranch, there is additional benefit to including the 
federally owned portions of the South Fork Kern River in the 
designation of critical habitat because of the Federal agencies 
obligation to consult under section 7 of the Act on activities that may 
adversely modify critical habitat. The Corps has consulted with the 
Service in the past on dam operations, the potential effects to the 
flycatcher, and implemented reasonable and prudent measures described 
in those associated biological opinions.

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Conservation measures included off-site land conservation efforts 
rather than modifying reservoir operations. The Corps maintains an 
obligation to consult under section 7 of the Act on their current 
operations, and those uncertain future operations or activities that 
may adversely modify critical habitat. As a result, the consultation 
requirement provides some benefit to flycatcher conservation. We expect 
that ongoing conservation efforts in this area will continue with or 
without critical habitat designation, limiting the benefits of 
excluding the area. Consequently, after reviewing the best available 
information, we have determined that the benefits of including this 
area as critical habitat outweigh the benefits of excluding this area.
    Furthermore, Canebrake Creek lies within a California Department of 
Fish and Game Ecological Reserve and is well upstream and not within 
the jurisdiction of the Corps' management of Lake Isabella Reservoir. 
There is no management plan specifically addressing flycatcher habitat 
in this area, thus we have determined that the benefits of including 
Canebrake Creek outweigh the benefits of excluding this area.
    Comment (26): The USFS identified a camping area at Luna Lake in 
the San Francisco Management Unit and requested that it be excluded 
from the designation due to the lack of primary constituent elements.
    Our Response: This recreation site had not previously been 
considered in the draft economic analysis. We have added a discussion 
of the site and its use to section 10.4 of the draft economic analysis. 
In addition, this area was found not to be essential for conservation 
of the flycatcher and has been removed from the final designation (see 
Summary of Changes from the Proposed Rule section above).
    Comment (27): Several individuals state that current management 
strategies for grazing operations within the Tonto National Forest 
provide sufficient rest to allow for conservation of riparian habitat. 
One comment also states that some areas within the middle Salt River 
region are not suitable for grazing.
    Our Response: The Service believes that carefully managed and 
closely monitored, light-to-conservative levels of grazing within 
critical habitat during the non-growing season may be compatible with 
flycatcher recovery (Service 2002, Appendix G). Thus, complete loss of 
grazing opportunities is not anticipated. Section 4.3 of the draft 
economic analysis describes the estimation of economic impacts 
associated with grazing. Communication with Federal land managers 
identified allotments that are unlikely to face future grazing 
restrictions or riparian exclusions, due to either manmade (e.g., 
fencing, roads, or seasonal use) or natural (e.g., steep canyons or 
unsuitable habitat) features. No impacts are anticipated in these 
areas.
    Comment (28): The USFS provided detailed information on grazing 
allotment management and conservation strategies as relevant to the 
flycatcher economic analysis.
    Our Response: The draft economic analysis identified allotments 
that were unlikely to face future grazing restrictions or riparian 
exclusions, due to either manmade (e.g., fencing, roads, or seasonal 
use) or natural (e.g., steep canyons or unsuitable habitat) features, 
through communication with land managers at the USFS and the BLM. The 
information provided in public comment by this entity is consistent 
with the information and assumptions used in the draft economic 
analysis.
    Comment (29): As holders of the grazing permit for the Dagger 
Allotment in the Tonto National Forest, Cherry Creek Cattle Company 
commented that there is no evidence to indicate that grazing poses a 
threat to the species. They stated they have yet to be shown a case in 
which cattle have negatively affected the bird's welfare. Instead, 
there are case studies that demonstrate that the flycatcher actually 
benefits from the presence of water improvements and insect populations 
that are a result of grazing activity. An example is a study of the U-
Bar Ranch in the Gila River Valley, where the highest density of the 
species occurred in an area with grazing present.
    Our Response: The Recovery Plan (2002, pp. 35-36, 114-116) 
discusses the issues, impacts, and evidence regarding the compatibility 
of grazing with flycatcher life history. The Service believes that 
carefully managed and closely monitored, light-to-conservative levels 
of grazing within critical habitat during the non-growing season may be 
compatible with flycatcher recovery (Service 2002, Appendix G).
    Comment (30): Multiple individuals commented on the economic impact 
of historical closures of recreational areas along the Salt River and 
Tonto Creek by the USFS for the protection of the flycatcher. These 
areas were popular locations that generated local spending and jobs 
related to the provision of fuel, lodging, food, and equipment. They 
estimate annual lost expenditures by recreational users of $47,123,599. 
No information is provided regarding the derivation of this estimate.
    Our Response: Section 10.3.11 of the draft economic analysis 
provides a detailed discussion of the costs associated with reduced 
recreational opportunities in the Tonto National Forest. We estimate 
lost direct expenditures of approximately $400,000 annually (2010 
dollars) based on data provided by the USFS on the number of fishing 
and hunting trips taken prior to the closures, the availability of 
substitute locations, and published estimates of average trip 
expenditures in each county in Arizona. These costs are attributed to 
the listing of the species (baseline), not the designation of critical 
habitat (incremental), because USFS began implementing these seasonal 
restrictions prior to the original designation of critical habitat in 
these areas.
    Comment (31): The USFS states that camping along the shoreline of 
Lake Roosevelt, and fishing along the Salt River and the Tonto Creek 
confluence and Roosevelt Lake, could be affected by the designation.
    Our Response: As discussed above, section 10.3.11 of the draft 
economic analysis provides a detailed discussion of the costs 
associated with reduced recreational opportunities on the Salt River, 
Tonto Creek, or Lake Roosevelt. The USFS has been implementing seasonal 
restrictions at Roosevelt Lake since 1998. Thus, the designation of 
critical habitat is not expected to result in additional, incremental 
impacts to recreational users. We have excluded Roosevelt Lake from the 
final designation of flycatcher critical habitat under section 4(b)(2) 
of the Act as a result of the implementation of SRP's Roosevelt Dam HCP 
and the supporting management conducted by the USFS (see Exclusions 
section below).
    Comment (32): The USFS identified an area of the Los Padres 
National Forest located within the proposed Santa Ynez Management Unit 
as heavily used for recreation. Specifically, it writes that the area 
between Live Oak picnic area and the Gibraltar Dam experiences heavy 
recreational use for picnics and swimming, especially in the summer 
when several thousand visitors may enter this area in one day. In 
addition, the three developed recreation sites require annual 
maintenance such as fire hazard reduction and clearing of the hardened 
crossings after high winter flows. The USFS is concerned that the 
designation of critical habitat could curtail use or maintenance of 
these popular sites. Finally, the agency notes that there are no 
records of flycatchers in the area.
    Our Response: Future formal section 7 consultation on the 
recreational

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activities taking place in this area is unlikely. If the USFS requests 
technical assistance or informal consultation, we are unlikely to 
recommend modifications to these activities, because the stream segment 
in question is used for migratory purposes, rather than nesting. 
Furthermore, there may be a benefit to continued recreation at the site 
in terms of educating visitors about the flycatcher and its habitat 
needs. If technical assistance or informal consultation occurs, the 
majority of the costs would be attributed to the baseline scenario 
because the area is considered to be occupied by the species. In 
addition, Federal agencies are aware of the potential presence of the 
species because the Santa Ynez River segment was previously designated 
as critical habitat. We have added a discussion of this site to chapter 
10 of the final economic analysis.
    Comment (33): USBR commented that the ``Fisheries'' section of the 
environmental assessment should not focus on just the Colorado River 
fisheries, as several other river systems such as the Rio Grande have 
conflicting uses between the fisheries and flycatcher. The discussion 
does not represent the full issues associated with conflicts between 
existing fish such as the Rio Grande silvery minnow (Hybognathus 
amarus) and the flycatcher.
    Our Response: Along the middle Rio Grande, revised flycatcher 
critical habitat overlaps with critical habitat for the Rio Grande 
silvery minnow, which is only found in the section of the Rio Grande 
between Cochiti Dam and Elephant Butte Reservoir (68 FR 8088, February 
19, 2003). Both the flycatcher and silvery minnow have experienced loss 
of habitat from stream modifications along the river system that 
include agriculture development, water diversion, impoundments, and 
livestock grazing (68 FR 8088, February 19, 2003, pp. 8088-8089, 8127). 
Because of potential conflicting interests between current and future 
water users and protected species, a collaborative group called the 
Middle Rio Grande Endangered Species Collaborative Program was 
developed. This group consists of local, regional, tribal, and Federal 
organizations whose goals are to alleviate jeopardy for the protected 
species while still providing for current and future water users 
(Middle Rio Grande Endangered Species Collaborative Program 2010).
    USBR has overseen several restoration projects, funded by the 
Middle Rio Grande Endangered Species Collaborative Program, to enhance 
habitat for both the silvery minnow and the flycatcher. Several groups, 
including the Santa Domingo Pueblo (Service 2008) and the Pueblo of San 
Felipe (Service 2007b), have been funded to remove nonnative plants and 
refurbish habitats along the Rio Grande. These projects provide proper 
water flow and bank stabilization for the silvery minnow while also 
creating native habitat structure for the flycatcher.
    Comment (34): We received a suggestion to add the U.S. Department 
of Agriculture and NPS to the list of agencies likely to enter into 
section 7 consultations with the Service under the No Action 
Alternative in the draft environmental assessment.
    Our Response: The USFS is the Federal bureau within the U.S. 
Department of Agriculture that would be likely to consult with the 
Service, and this agency is already listed. We have added the NPS to 
this list and noted other places in the environmental assessment where 
actions by the NPS could be considered in section 7 consultations for 
flycatcher critical habitat.

Comments Related to Tribal Lands

    Comment (35): A variety of comments from tribes and others stated 
that they oppose the designation of critical habitat on tribal lands. 
We also received some comments that we did not adequately coordinate 
with tribes based on our government-to-government relationship.
    Our Response: It is important for the Service to work and 
communicate with tribes and pueblos potentially impacted by the 
designation of critical habitat. We support and recognize tribal 
sovereign authority and each tribe's inherent power to manage and 
control their natural resources. In accordance with Secretarial Order 
3206 and the Service's Native American Policy, we consult with tribes 
when actions taken under the Act may affect tribal lands, tribal trust 
resources, or the exercise of American Indian tribal rights as defined 
in the Secretarial Order.
    Prior to our publication of the proposed revision of flycatcher 
critical habitat, the Service's Regional Directors sent letters to the 
leader of each tribe and pueblo that could be affected by the rule, 
provided information about our intention to propose revised flycatcher 
critical habitat, and offered the opportunity to initiate government-
to-government consultations regarding the process. We also explained 
our exclusion policies under section 4(b)(2) of the Act and provided 
other relevant information to assist tribes and pueblos in cooperating 
in this process. We also communicated informally with tribal 
representatives, including making presentations at tribal wildlife 
conferences in Arizona and New Mexico about the upcoming critical 
habitat revision and our related policies. In California, the Service 
attended meetings with all seven tribes that could be affected by 
critical habitat.
    Following publication of our August 15, 2011, proposal (76 FR 
50542), and throughout the process to revise critical habitat, we 
continued communicating with tribes and pueblos verbally and in 
writing. We contacted each tribe and pueblo formally in writing, and 
informally via telephone and electronic mail; offered government-to-
government consultation at their request; and provided a copy of the 
proposal. In September 2011, we sent a letter to the leader of each 
tribe and pueblo with an updated draft flycatcher management plan 
template, flycatcher literature, and further guidance on how to develop 
and implement a flycatcher management plan for our consideration for 
exclusion under section 4(b)(2) of the Act. We followed up this letter 
with electronic messages and phone calls to tribes and pueblos 
providing additional management plan guidance. We later provided tribes 
and pueblos an update on our schedule for completion of the 
designation, opportunities for submitting management plans, an offer of 
technical assistance on management plans, and information about seeking 
exclusion from the critical habitat designation.
    Following our July 12, 2012, notice of availability for the draft 
economic analysis and draft environmental assessment (77 FR 41147), we 
again sent a letter to the leader of each tribe and pueblo, dated July 
30, 2012, to notify them of the opportunity to comment on the process, 
offer government-to government consultation, and inform them of the 
dates and locations of the public hearing and open house meeting. 
Representatives from local Service field offices in Arizona, 
California, Colorado, and New Mexico contacted tribes and pueblos in 
person, during meetings, and through electronic mail and telephone 
calls to inform them about the proposed rule and offered help with 
development of flycatcher management plans. Representatives from the 
BIA also coordinated with the Service to provide their guidance and 
assistance. In many cases, the Service assisted tribes in the 
development of flycatcher management plans.
    In November 2011, we met with a representative from the San 
Ildefonso Pueblo in New Mexico at their request. We also met with and 
had teleconferences with representatives

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from the GRIC of Arizona in October 2012. We had additional meetings 
with all of the tribes in California. While preparing to publish the 
proposed rule, we made presentations to tribal wildlife conferences, 
attended by tribal staff in New Mexico and Arizona about the 
development of the upcoming critical habitat proposal and our exclusion 
process.
    Overall, we provided detailed correspondence and coordination, and 
communicated with the 19 tribes and pueblos where we proposed critical 
habitat. We also provided more general correspondence to other nearby 
tribes not included in the proposed designation and coordinated with 
them at their request. We subsequently excluded, under section 
(4)(b)(2) of the Act, all of the 19 tribes and pueblos that were 
included within the proposed designation (see Exclusions section). We 
intend to keep working to improve our relationships with tribes and the 
BIA following the tenets of Secretarial Order 3206 and Executive Order 
13175.
    Comment (36): The Southern Ute Indian Tribe, Fort Mojave Indian 
Tribe, Pueblo de San Ildefonso, Yavapai-Apache Nation, Hualapai 
Department of Natural Resources, Navajo Nation, Pueblo of Zuni, and the 
San Carlos Apache Tribe each submitted to the Service a copy of their 
respective management plans for the flycatcher. Many included 
amendments or revisions to ensure adequate conservation for the 
flycatcher and its habitat.
    Our Response: We appreciate these efforts, and appropriate sections 
of this rule and economic analysis have been revised to reflect 
conservation efforts reflected in the respective plans.
    Comment (37): The Barona Group of Capitan Grande Band of Mission 
Indians of the Barona Reservation, California, stated that our 
description of the portion of the ``San Diego River (upper)'' area 
being considered for exclusion from this critical habitat designation 
was confusing. The Tribe noted that the area being considered for 
exclusion is described as 4.7 km (2.9 mi) and 82.4 ha (203.7 ac) in the 
supplementary table (on page 2 of 5), under the heading ``Areas 
Considered for Exclusion,'' but the area, as shown on the proposed map, 
is nearly identical to that of 37 ha (92 ac) excluded from critical 
habitat for the arroyo toad (Anaxyrus californicus).
    Our Response: The Service inadvertently included in these 
calculations lands not within the boundary of the Capitan Grande Band 
of Diegueno Mission Indians Reservation (Capitan Grande Reservation), 
which is jointly managed by the Barona Group of Capitan Grande Band of 
Mission Indians of the Barona Reservation, California, and the Viejas 
(Baron Long) Group of Capitan Grande Band of Mission Indians of the 
Viejas Reservation, California, in the proposed rule for the 
flycatcher. We have revised the boundaries of this segment to 
appropriately reflect the area of tribal lands considered for critical 
habitat to an approximately 0.9 km (0.6 mi) stream segment of the San 
Diego River (upper) and consisting of approximately 9.0 ha (22 ac) of 
the Capitan Grande Reservation. See Summary of Changes from the 
Proposed Rule above for further discussion.
    Comment (38): The Viejas (Baron Long) Group of Capitan Grande Band 
of Mission Indians of the Viejas Reservation, California, expressed 
concern that the Service and the BIA did not make a greater effort to 
comply with directives obligating Federal agencies to consult with 
tribes when taking actions that impact tribes, particularly those 
involving tribal lands and the management of biological resources. The 
Tribe cited Secretarial Order 3206 and Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments (Nov. 9, 
2000), as outlining the Service's responsibility to communicate with 
Tribes regarding actions that may affect tribal lands as far in advance 
as practicable. According to the Tribe, the Service's track record on 
the proposed designation fails to meet these obligations, and, had such 
notification and consultation occurred, the Service would have obtained 
sufficient information to exclude the tribe from the proposed 
designation. The Tribe requested full consultation going forward, 
expressed appreciation of the Service's recent efforts in this regard, 
and anticipates that intergovernmental discussions will continue.
    Our Response: The Service makes every effort to coordinate with 
tribes well in advance of taking any action which may affect tribes or 
tribal lands. The Service met with both tribes on June 16, 2011, prior 
to publication of the proposed rule; have kept in contact with the 
tribes via email concerning the possible development of management 
plans for the flycatcher; and have met with the tribes at quarterly 
meetings. We appreciate the feedback provided by the Viejas (Baron 
Long) Group of Capitan Grande Band of Mission Indians of the Viejas 
Reservation, California, and will continue to foster effective 
communications with tribes.
    Comment (39): The Pala Band of Luise[ntilde]o Mission Indians of 
the Pala Reservation, California, expressed concern regarding the 
proposed Gregory Canyon Landfill, just west of the Pala Reservation, 
because the construction and operation of a landfill at this location 
would segregate the San Luis Rey population of flycatcher into east and 
west subpopulations and that the effect on gene flow caused by such 
segregation should be included in the analysis of the designation in 
this area. The Tribe believes it is highly likely that the mountain 
stream in Gregory Canyon provides habitat that the flycatcher would use 
as an adjunct to the primary riparian corridor, extending its use by 
the species up the canyon, and that this location should be designated 
critical habitat for the flycatcher.
    Our Response: We agree that Gregory Canyon provides riparian 
habitat that the flycatcher may use. However, Gregory Canyon was not 
identified as necessary for recovery in the Recovery Plan, and we do 
not believe the area is essential to the conservation of the species; 
therefore, we did not propose the area as critical habitat. In 
developing the critical habitat determination, the Service used the 
Recovery Plan, as well as information from peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, and other unpublished 
materials and expert opinion or personal knowledge.
    Comment (40): The Ramona Band of Cahuilla, California, indicated 
that they have developed a draft conservation measure regarding the 
species that will serve as the appropriate resource management plan for 
the Ramona Indian Reservation and other tribal lands. The Ramona Band 
of Cahuilla stated that it invites the Service to work with the Tribe 
to devise and adopt its plan.
    Our Response: We appreciate the Tribe's invitation and look forward 
to working cooperatively with the Ramona Band of Cahuilla, California, 
in the development and adoption of their management plan for the 
flycatcher.
    Comment (45): The Barona Band of Mission Indians comments that the 
draft economic analysis does not explain why uniquely tribal values 
described in the report are not monetized, and, therefore, the report 
provides an incomplete assessment of costs and renders the economic 
analysis legally inadequate.
    Our Response: The draft economic analysis is unable to monetize 
impacts for which economic data are not readily available in published 
academic literature or from other sources. Furthermore, new primary 
research, such as complex surveys eliciting values for the unique 
amenities provided to tribes by reservation lands, is beyond

[[Page 472]]

the scope of this analysis. The uniquely tribal values described in the 
draft economic analysis are difficult to define in scope and scale, and 
necessary economic data are not readily available. To address the 
Barona Band of Mission Indians' concern that such values will not be 
considered in the rulemaking process, however, we include a note 
regarding these ``uniquely tribal values'' into exhibit 6-1 of the 
draft economic analysis, so that unquantified values can be considered 
in combination with quantified administrative costs.
    Comment (46): Maps show that flycatchers are present on GRIC lands 
in Arizona; however, there are no critical habitat designations on 
lands managed by the GRIC. The GRIC Tribal Historic Preservation Office 
supports designation of lands as critical habitat for the flycatcher.
    Our Response: While we believe it is reasonable to anticipate that 
migrating or dispersing flycatchers occur along the section of the 
lower Gila River where the GRIC occurs, we are not currently aware of 
flycatcher territories on these lands. We have not proposed critical 
habitat on GRIC lands. At the Tribe's request, we are available to 
provide our technical assistance about flycatchers, flycatcher habitat, 
management, and surveys.
    Comment (47): The GRIC indicates that the economic analysis fails 
to properly assess direct and ancillary benefits of the rulemaking. 
Specifically, the Community raises the following concerns: (1) 
Regarding direct benefits, the draft economic analysis fails to conduct 
an adequate assessment of these benefits. Even in the case where 
benefits are not quantifiable, options such as conducting a threshold 
analysis or doing additional research, outlined in Circular A-4, were 
not properly considered. As a result, the draft economic analysis does 
not indicate that any direct or indirect benefit results from the 
proposed designation. (2) Regarding ancillary benefits, the draft 
economic analysis provides no monetary, or non-monetary quantification 
for the listed ancillary benefits, and no discussion of their relative 
importance. In addition, many of the ancillary benefits are not a 
result of the designation, are overstated or duplicative.
    The Santa Clara Pueblo also disagree with the inclusion of certain 
categories of benefits as ancillary to the proposed critical habitat 
because these benefits are already realized absent the designation.
    Our Response: The OMB Circular A-4 (p. 10) states, ``For all * * * 
major rulemakings, you should carry out a BCA [benefit-cost analysis]. 
If some of the primary benefit categories cannot be expressed in 
monetary units, you should also conduct a Cost-Effectiveness Analysis 
(CEA). In unusual cases where no quantified information on benefits, 
costs and effectiveness can be produced, the regulatory analysis should 
present a qualitative discussion of the issues and evidence.'' Both 
benefit-cost analysis and cost-effectiveness analysis require 
measurement of the effectiveness of the regulation in quantitative 
terms. Benefit-cost analysis simply takes the next step of monetizing 
the value to the public of the improvements.
    The primary purpose of this critical habitat designation is to 
support the long-term conservation of the flycatcher. As described in 
section 11.1 of the draft economic analysis, quantification and 
monetization of this conservation benefit require information on the 
incremental change in the probability of conservation resulting from 
the designation. Such information is not available, and as a result, 
quantification of the primary benefit of critical habitat designation 
is not possible. The Service does not believe that conducting 
additional research on the benefits of flycatcher conservation is 
within the scope of this economic analysis.
    Section 11.1.3 of the draft economic analysis discusses potential 
ancillary benefits. Although economic literature does exist that 
monetizes similar benefits, these studies are necessarily site-
specific. For example, using benefits transfer techniques to estimate 
changes in residential property value based on the existing economic 
literature would require knowledge of the characteristics of the 
specific lands preserved as a result of the designation of critical 
habitat, including proximity to residential properties and the amount 
of existing open space in the area. Without knowing where lands will be 
preserved (e.g., through mitigation fees) as a result of this 
designation, it is impossible to estimate such benefits. Similarly, 
quantifying benefits associated with improved water quality would 
require information regarding baseline water quality, hydrologic and 
chemical modeling to estimate changes in water quality, and risk 
analysis to determine avoided human health risk based on changes to 
water quality. These types of analyses are beyond the scope of the 
draft economic analysis. As a result, ancillary benefits associated 
with the designation of critical habitat are discussed qualitatively. 
Specifically, section 11.3 and exhibit 11-1 in the draft economic 
analysis provide a list and discussion of the potential ancillary 
benefits associated with the proposed critical habitat. This exhibit 
indicates which benefits may occur in each management unit, in order 
for the Service to compare to costs when determining exclusions. It 
also indicates whether such benefits are likely to occur in the 
baseline, or result incrementally from the designation of critical 
habitat.
    Comment (48): The GRIC and another commenter state that the 
economic analysis fails to assess potential impacts to the GRIC from 
potential changes to downstream water availability from the San Carlos 
Reservoir.
    Our Response: As stated in Chapter 3 of the economic analysis, 
water users that receive deliveries from the San Carlos Reservoir could 
be affected by critical habitat designation if reservoir operations are 
modified such that less water is available for irrigation or other 
community uses. Reductions in available water to the GRIC could result 
in reductions in irrigated crop acres for end users, if farmers are 
unable to switch to less water-intensive crops or find substitute water 
sources. If less water is available for community use, restrictions on 
municipal or domestic use could result. However, as stated in Chapter 
3, due to the extensive consultation history on the flycatcher allowing 
for habitat mitigation in lieu of changing water operations, and a 
previous Service suggestion than an HCP or section 7 consultation be 
developed related to San Carlos Reservoir operations, the analysis 
finds that future modifications to the operations of the San Carlos 
Reservoir to avoid adverse modification of critical habitat for 
flycatcher are unlikely. Instead, the analysis assumes than an HCP or 
section 7 consultation and incidental take permit will be developed 
that allow for habitat mitigation. To approximate the cost of 
developing an HCP, the analysis applies that range of incidental take 
permit costs, which also incorporate the acquisition of mitigation 
lands. Applying this estimate, total costs for Coolidge Dam are 
approximately $4.25 to $35.7 million. Because changes in dam operations 
are not anticipated, impacts of critical habitat designation to water 
deliveries to the GRIC or SCIDD related to the San Carlos Reservoir are 
not expected.
    Comment (49): The San Carlos Apache Tribe expresses concern that 
the draft economic analysis did not evaluate its assumptions using 
sensitivity analysis. Furthermore, this comment states that aggregating 
impacts occurring on both tribal and non-tribal lands results in the 
marginalization of disproportionate impacts to tribes.
    Our Response: As shown in exhibit ES-4 and exhibit ES-5 of the 
draft

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economic analysis, the analysis presents a range of possible impacts, 
resulting from variation in key assumptions, in high and low impact 
scenarios. Although the draft economic analysis does aggregate 
estimates of impacts occurring on both tribal and non-tribal lands, 
paragraph 322 and section 6.1 of the draft economic analysis explain 
that, due to the unique characteristics of tribal economies, economic 
impacts to tribes are evaluated differently from impacts on non-tribal 
lands. Furthermore, quantified baseline and incremental costs that 
could be incurred by the tribes in the future are separately presented 
in exhibit 6-1 of the draft economic analysis.
    Comment (50): The GRIC states that the proposed rule indicates on 
its maps, as does the economic analysis, that critical habitat is being 
proposed on Community lands, but this area is neither addressed in the 
proposed rule, nor is it assessed in the economic analysis. The 
Community provides information regarding the related economic impacts 
they will realize if this portion of the Salt River is designated, 
including potential impacts to its ability to grow riparian mesquite, a 
culturally and economically significant crop.
    Our Response: The Service is not designating critical habitat for 
the flycatcher on any portion of the Community's land. Any apparent 
inclusion of Community land on maps in the proposed rule or draft 
economic analysis was unintentional.
    Comment (51): The GRIC indicates that the time period of the 
analysis is both inconsistent and too short. The period of analysis is 
inconsistent in that the baseline uses an analytical period of 50 
years, whereas the incremental analysis uses varying periods. Further, 
this time period is too short in that the period of analysis for the 
San Carlos Reservoir should be indefinite since the GRIC intends to use 
the reservoir, and the San Carlos Irrigation District has contracts, in 
perpetuity. However, if it is impractical to use an indefinite period, 
the analysis should note that in reality the Community could realize 
impacts resulting from a change to reservoir management in perpetuity.
    Our Response: In response to the Community's concern that the 
period of analysis is too short and too variable, we refer the 
commenter to section 2.3.5 (paragraph 87) of the economic analysis. In 
general, the analysis makes the best use of available data and 
information, which in some cases dictates the time period of the 
analysis (for example, in the analysis of water impacts). The draft 
economic analysis, however, complies with Circular A-4 standards for 
the appropriate definition of the ``foreseeable future'' for this 
analysis.
    For water projects where an incidental take permit has been issued, 
we forecast costs over the remaining period of the permit, because 
future management of the resource is relatively certain. For all other 
water projects, we forecast costs over a 30-year period. Given the 
nature of these projects, where multiple stakeholders and government 
entities often negotiate over decisions regarding how to manage and 
allocate resources, changes in the foreseeable use of the water tend to 
occur less frequently than changes in other types of economic activity. 
In contrast, other activities, such as future transportation projects, 
may be more difficult to forecast beyond 20 years.
    In the case of the San Carlos Irrigation Project, which delivers 
water to the GRIC, it is unlikely that flows to the Community will be 
affected by the presence of the flycatcher. The Service has previously 
suggested that if water transfers result in a loss of downstream 
flycatcher habitat, additional habitat could be acquired on the San 
Pedro River as part of an HCP (see paragraphs 170 through 173 of the 
draft economic analysis). We include the potential costs of such 
efforts in paragraph 173 of the draft economic analysis.
    Comment (52): The GRIC stated that, in the environmental 
assessment, the Service failed to provide any meaningful analysis of 
how the proposed rule will impact water delivery obligations under the 
San Carlos Project Act, which requires that the Reservoir ``provid[e] 
water for the irrigation of lands allotted to the Pima Indians on the 
Gila River Reservation.''
    Our Response: With the measures described in the ``Water 
Resources'' and ``Tribal Resource'' sections of the environmental 
assessment, it is unlikely that the Service would conclude an adverse 
modification determination to flycatcher critical habitat from San 
Carlos Irrigation District operations. Therefore, it is not anticipated 
that the Service would require the BIA, through section 7 consultation, 
to change current San Carlos Irrigation District operations.
    Comment (53): Some commenters are concerned about the clarity of 
the description of the northern boundary of the Middle Rio Grande river 
segment in New Mexico near the Bernalillo County line and the Isleta 
Pueblo. Additionally, commenters sought clarity on the distribution of 
flycatcher territories in this area and how critical habitat may apply 
to lands between the Isleta Pueblo-Bernalillo County lines.
    Our Response: Although Isleta Pueblo lands have contained several 
nesting pairs of flycatchers and each territory is important, we 
believe there is sufficient habitat and territories within the Middle 
Rio Grande Management Unit to meet and exceed recovery goals farther 
downstream. We have not included any lands within the Isleta Pueblo in 
the proposal and clarified the language in the final rule regarding the 
northern boundary of this critical habitat segment.
    It is important to note, however, that absent any critical habitat, 
the flycatcher will still receive protection in the future due to its 
status as a listed species under the Act. Thus, any costs that will 
occur due to the listing of the species, regardless of whether critical 
habitat is designated, are attributed to the baseline. Appendix C and 
paragraphs 66 through 73 of the draft economic analysis provide the 
process used by the Service and applied in the economic analysis to 
distinguish actions that will occur as a result of the species' 
listing.
    Comment (54): The Santa Clara Pueblo states that the list of 
economic activities that the draft economic analysis includes as 
potentially occurring on the reservation is incomplete. The Pueblo 
believes that a higher level of economic activity is likely to occur in 
the area. The Pueblo foresees the possibility of activities such as, 
but not limited to, groundwater pumping, livestock grazing, 
agriculture, flood control, recreation development, and future 
additions or renovations to their existing hotel and casino. The Pueblo 
is particularly concerned that the Service properly considers potential 
impacts to groundwater pumping, even if monetization of impacts is not 
possible at this time. As a result, the estimate of four formal 
consultations per year is an underestimate of the likely level of 
consultation activity that the Pueblo will undergo.
    Our Response: Section 6.4.16 of the draft economic analysis has 
been updated to reflect a higher level of consultation activity on 
affected portions of the Santa Clara Pueblo, and to highlight the 
Pueblo's concerns regarding potential impacts to groundwater. The 
number of consultations has been increased to 10, or approximately one 
every other year for the 20-year period of the analysis, to account for 
additional expected activities on proposed reservation land.
    Comment (55): Two tribes express concern regarding the definition 
of baseline conditions and costs in the draft economic analysis. One 
entity states the baseline should include existing flycatcher critical 
habitat in

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order to properly reflect the current conditions. Another suggests that 
it is incorrect to assume that the presence of the species was the 
impetus for conservation actions already undertaken, and that 
conservation efforts should therefore not be considered baseline costs.
    Our Response: According to OMB's Circular A-4, the baseline should 
be the best assessment of the way the world will look (in the future) 
absent the proposed rule. The revised designation will replace the 
existing critical habitat regulation. Thus, the Secretary has the 
discretion to exclude from the final rule areas that were designated in 
2005. In other words, absent an explicit decision from the Secretary to 
designate an area as part of the final rule, in the future, critical 
habitat protections will no longer apply. Thus, comparison of a world 
with the designation as proposed in 2011 to a world without critical 
habitat (the baseline scenario) is appropriate for the purposes of the 
economic analysis.
    Comment (56): Activities occurring on tribal lands, unlike 
activities occurring in other geographic areas where critical habitat 
may be designated, almost always have a Federal nexus for section 7 
consultation. As a result, the San Carlos Apache Tribe is likely to 
experience significant economic impacts.
    Our Response: Paragraph 325 in section 6 of the draft economic 
analysis explains that because all tribal lands overlapping proposed 
critical habitat are located within areas occupied by the flycatcher, 
which would include flycatcher territories, and migrating and 
dispersing flycatchers. As a result, where the species occupancy is 
well known, the Service considers all costs associated with 
conservation measures to be baseline (see chapter 2 of the economic 
analysis). This would pertain to activities on tribal lands with a 
Federal nexus. As a result, we assume that future incremental impacts 
on tribal lands will be limited to the additional administrative effort 
of addressing critical habitat in section 7 consultation.
    Specifically, the draft economic analysis (paragraphs 444 and 
following in section 6.4.15) discusses this concern using text from a 
comment submitted previously by the San Carlos Apache Tribe. The full 
extent of flycatcher occupancy on San Carlos Indian Reservation is 
unknown due to the proprietary nature of tribal survey information. 
However, the information contained in the management plan, as well as 
the section 7 consultation history, does not indicate that significant 
management requirements or economic impacts have occurred as a result 
of the presence of the flycatcher. Past economic impacts related to 
flycatcher conservation have included costs of administrative efforts, 
surveying and monitoring, and cowbird trapping. These costs are 
expected to continue in the future with or without critical habitat. 
Some additional consultation could occur if critical habitat were 
designated. However, given our ongoing relationship with the San Carlos 
Apache Tribe and the information provided in their Management Plan, we 
have determined that the benefits of excluding lands on the San Carlos 
Apache Reservation outweigh the benefits of inclusion.
    Comment (57): The Santa Clara Pueblo indicates that the draft 
economic analysis improperly states that the Service contacted each 
tribe to solicit information on the likely impacts of the designation. 
Santa Clara Pueblo maintains that informal contact from contractor 
staff to the tribes does not respect the government-to-government 
relationship the Service should maintain with tribal entities.
    Our Response: The Service has maintained contact with the Santa 
Clara Pueblo and other tribal governments through letters, phone calls, 
and emails, and has provided the Tribe with notice of publication dates 
of various documents. We provided numerous opportunities to engage in 
government-to-government discussions regarding our proposal, and we 
continue our openness to do so. We appreciate the comment and are fully 
responsible for strengthening government-to-government relationships 
with tribes.

Other Comments Related to the Act and Implementing Regulations and 
Policy

    Comment (58): Since the definition of ``destruction or adverse 
modification of critical habitat'' has been invalidated, the Service 
must revise the definition to focus on whether, with the implementation 
of an agency's proposed action (taking into consideration habitat 
management, conservation or other offsetting measures), the critical 
habitat remaining would continue to serve its intended conservation 
role for the species.
    Our Response: The Service is working to update the regulatory 
definition of adverse modification since it was invalidated by several 
Courts of Appeal, including the Ninth Circuit and the Fifth Circuit. At 
this time (without updated regulatory language), we are analyzing 
whether destruction or adverse modification would occur based on the 
statutory language of the Act itself, which requires us to consider 
whether an agency's action is likely to result in the destruction or 
adverse modification of habitat which is determined by the Service to 
be critical to the conservation of the species (16 U.S.C. 1536(a)(2)). 
We agree with the commenter that to perform this analysis, we consider 
how the proposed action is likely to affect the function of the 
critical habitat in serving the intended conservation role.
    Comment (59): Some commented that the Service did not adequately 
notify landowners where proposed critical habitat was located.
    Our Response: Due to the large scope of the proposed designation, 
it was not possible to contact each individual landowner within the 
proposed designation. We believe we contacted the appropriate Federal, 
State, and local agencies; tribes; scientific organizations; elected 
officials; and other interested parties including other landowners, as 
best we could, and invited them to comment on the proposed rule. We 
sent out over 1,100 pieces of mail for each published notice in the 
Federal Register. We contacted these groups by letter and electronic 
mail at the time of publication of the proposed rule (76 FR 50542, 
August 15, 2011); and again when we reopened the comment period to 
announce the availability of the draft economic analysis and draft 
environmental assessment, and to notify the public of the location of a 
public hearing (77 FR 41147, July 12, 2012). We held a public hearing 
at the request of Gila County, in San Carlos, Arizona, on August 16, 
2012. In order to inform the general public, notices were published in 
the Federal Register and local newspapers, and we widely distributed 
news releases and posted them on the Internet. A web page of flycatcher 
critical habitat materials was maintained at Arizona Ecological 
Services Web site http://www.fws.gov/southwest/es/arizona. Additional 
flycatcher critical habitat materials, including public comments, are 
available at http://www.regulations.gov.
    Comment (60): Several commenters expressed the willingness of a 
variety of water agencies (Bear Valley Mutual Water Company, City of 
Redlands, City of Riverside, City of San Bernardino Municipal Water 
Department, East Valley Water District, San Bernardino Valley Municipal 
Water District, San Bernardino Valley Water Conservation District, 
Western Municipal Water District, West Valley Water District, and 
Yucaipa Valley Water District) to work with the Service to provide for 
flycatcher conservation.
    Our Response: The Service appreciates the agencies' willingness to

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work with the Service to conserve the flycatcher and its habitat. We 
believe partnerships with other agencies are vital to providing 
conservation of our shared natural resources, and look forward to 
working with the agencies in pursuit of this goal.
    Comment (61): There is no reference in the proposed rule to the 
requirement set forth in the Federal Land and Policy Management Act for 
values management. The Service must adhere to the requirements as set 
forth in that legislation including mitigation efforts for all the 
promised values.
    Our Response: The Federal Land and Policy Management Act of 1976, 
as amended (43 U.S.C. 1701), established the BLM's multiple-use mandate 
to serve present and future generations. Section 102(a)(8) states that 
public lands must ``be managed in a manner that will protect the 
quality of scientific, scenic, historical, ecological, environmental, 
air and atmospheric, water resource, and archeological values.'' In 
section 103(e), ``public lands'' is defined generally as land 
administered by the BLM. There are no provisions in the Federal Land 
and Policy Management Act that are applicable to the Service in general 
or the designation of critical habitat specifically.
    Comment (62): The implementing agreements for both the Orange 
County Southern Subregion HCP and the Western Riverside County MSHCP 
state that, to the extent consistent with other agency priorities, 
staffing, and funding constraints, the Service intends to reassess and 
revise the boundaries of existing designated critical habitat and any 
proposed critical habitat of covered species designated within the HCP 
boundaries.
    Our Response: The implementing agreements indicate that the Service 
intends to reassess and revise the boundaries of existing designated 
critical habitat and any proposed critical habitat of covered species 
within HCP boundaries. However, due to current funding and priority 
limitations, the Service cannot reassess or revise all critical habitat 
designations for multiple species concurrently. In revising this 
current designation of critical habitat for the flycatcher, the Service 
is responding to litigation and the subsequent settlement agreement in 
which we agreed that the Service would revise critical habitat for the 
flycatcher.
    Comment (63): The Service has found that the redesignation does not 
create a Federal mandate as defined under the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 et seq.). However, the Service needs to complete a 
financial plan in an honest manner and with a thorough consideration of 
the facts. Recognize and disclose that the redesignation of critical 
habitat will cause the otherwise unnecessary expenditure of funds by 
local governments and private citizens.
    Our Response: The designation or revision of critical habitat does 
not impose a legally binding duty on non-Federal Government entities or 
private parties. The Service completed an economic analysis and made 
its findings available for public comment. Consequently, we do not 
believe that this rule will significantly or uniquely affect small 
governments for reasons explained in the sections of this rule entitled 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.).

Other Comments Related to Biology, Methodology, and Critical Habitat 
Designation

    Comment (64): Several commented that the critical habitat in the 
proposed rule is excessive, capable of supporting some 100,000 
flycatcher territories, in contrast to the current number of 
territories (approximately 1,300) and the Recovery Plan goal of 1,950 
territories. Similar comments were received that generally pointed out 
that the amount and location of areas identified in the critical 
habitat proposal were significantly larger than our 2005 designation, 
and there was no discussion or analysis of the difference.
    Our Response: Our specific methodology used to identify areas 
proposed as flycatcher critical habitat was described in the proposed 
rule (76 FR 50542, August 15, 2011, pp. 50552-50558). This approach 
duplicated much of what was identified and designated in 2005, with 
additional proposed areas primarily targeting locations needed in order 
to reach specific territory and habitat-related recovery goals for each 
management unit.
    The science provided in the Recovery Plan (Service 2002, entire) 
and our knowledge of the distribution and abundance of territories, use 
of river corridors for migration, year-to-year movements, habitat use 
within territories, and Recovery Plan goals helped guide our approach 
and provided support for the segments proposed and designated as 
critical habitat. In some locations, especially Management Units where 
there is limited information on flycatcher distribution and abundance, 
we sought additional information through the designation process and 
used our best professional judgment to identify and designate river 
segments.
    The naturally irregular, patchy, and dynamic distribution of 
flycatcher habitat within riparian corridors, combined with the 
habitat-related and territory recovery goals and important migration 
habitat likely accounts for a larger area than what is perceived to be 
needed in order to accomplish the territory component of the Recovery 
Plan's targets. In other words, because of the dynamic aspects of 
flycatcher habitat due to flooding, changing river locations, and land 
uses, we are unable to specifically target patches of habitat within 
riparian corridors. Instead, we identified the boundaries (riparian 
area) where this habitat is expected to occur over time.
    Additionally, a comparison of the 2011 proposal to the 2005 final 
designation is inappropriate because our 2011 proposal does not 
incorporate any section 4(b)(2) exclusions from the final designation. 
In the 2011 proposed rule and 2012 notice of availability, we 
identified 1,451.5 km (901.9 mi) stream miles that we considered for 
exclusion from the final designation (76 FR 50542, August 15, 2011; 77 
FR 41147, July 12, 2012). The exclusions we are making in this final 
rule are discussed in the Exclusions section.
    Comment (65): Some commenters questioned the scientific evidence 
used by the Service.
    Our Response: In designating flycatcher critical habitat, we 
believe we have used the best available scientific and commercial 
information, including results of numerous surveys, peer-reviewed 
literature, unpublished reports by scientists and biological 
consultants, habitat suitability models, a stakeholder-driven Recovery 
Plan, and expert opinion from biologists with extensive experience 
studying the flycatcher and its habitat. We believe the peer reviewer 
support for our use of the best available science to develop this 
critical habitat designation confirms our approach.
    Comment (66): One commenter expressed concern that the quality of 
the maps was poor and, therefore, made it difficult for the public to 
adequately comment on the proposed revisions. Map quality makes it 
difficult to proceed with land and water management projects such as 
fuel reduction or fire management. Similarly, some commenters 
recommended more detailed maps to determine where the primary 
constituent elements of critical habitat may be absent at locations 
such as road, campgrounds, bridges, or where the bird's status is 
uncertain.
    Our Response: In the proposed rule (76 FR 50542; August 15, 2011), 
we

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described where people can view enhanced color maps and retrieve site-
specific boundaries of the critical habitat proposal in GIS format. 
These color maps and electronic GIS information files could be viewed 
or retrieved by visiting http://www.regulations.gov or http://www.fws.gov/southwest/es/arizona. The maps within the proposed rule 
identified every river segment and provided the UTM location and 
landmarks for each endpoint; County, State, and Management Unit 
boundaries; and other important common landmarks (e.g., towns, 
highways, lakes). Color maps posted online at the Arizona Ecological 
Services Office Web site included all the same information as those 
found in the proposed rule, with additional color-coded information on 
land ownership and areas considered for exclusion under section 4(b)(2) 
of the Act. The boundary for our lateral extent of critical habitat was 
also provided within the electronic GIS information.
    Comment (67): A few comments pointed out technical errors such as 
places where the proposed rule includes a written description of the 
lands proposed for inclusion and exclusion in the designation, but the 
associated maps do not always match the written description.
    Our Response: We appreciate commenters bringing those issues to our 
attention and have made corrections as needed. Please refer to the 
Summary of Changes from Proposed Rule section where we have corrected a 
number of mapping errors from the proposed rule.
    Comment (68): There is an error in Table 1 of the proposed rule 
regarding breeding flycatchers from Parker Dam to the Southerly 
International Boundary. This area has not been known to be occupied by 
breeding flycatchers since the 1930s, and no nests have been detected 
from 1991 to 2010. This area should be listed as ``No'' in the first 
column (Known to be occupied at the time of listing (1991-1994)) and 
``No'' in the second column (Territories detected (1991-2010)).
    Our Response: We identified areas occupied at the time of listing 
at those streams (not portions of streams) where flycatcher territories 
were detected in any one season in surveys conducted from 1991 to 1994 
(Sogge and Durst 2008). We considered a broader area to be occupied 
than just the specific site where a territory was located because 
flycatchers, as a neotropical migrant, travel between Central America 
and the United States. Because flycatchers occupy riparian areas along 
rivers while traveling between wintering and breeding grounds, we 
expect that many small areas along long stretches of stream can be 
occasionally used by migrant flycatchers from year to year. North and 
south-bound migrating flycatchers are frequently found occupying 
stopover areas along streams upstream of, downstream of, and between 
known breeding sites.
    Therefore, for this wide-ranging bird, it is difficult to precisely 
determine known occupied areas due to the following considerations: (1) 
The flycatcher's neotropical migratory habits of occupying stopover 
areas along streams upstream of, downstream of, and between breeding 
sites; and (2) the season-to-season variation in habitat quality and 
subsequent lack of specific nest-site fidelity. As a result, for the 
purpose of this critical habitat designation, we believe it is most 
conservative and reasonable to conclude that any segment along a stream 
where flycatcher territories were detected from 1991 to 1994 also be 
considered occupied at the time of listing.
    At the time of listing, only specific sites on the Colorado River 
within the Middle Colorado Management Unit were known to have 
territories. However, based upon our criteria and the wide-ranging 
nature of this bird as a neotropical migrant (and it occupying 
migration stop-over habitat), we also consider the Colorado River 
within the Hoover to Parker Dam and Parker Dam to Southerly 
International Border Management Units as occupied at the time of 
listing.
    Following listing and prior to the implementation of the LCR MSCP, 
flycatcher territories were detected along the LCR mainstem below 
Hoover Dam, primarily at Havasu NWR, but also as mostly single 
territories sporadically distributed from Lake Mohave to Yuma (Service 
2002, Figure 8).
    Since implementation of the LCR MCSP in 2005, flycatchers have 
occurred in abundance as migrants throughout the length of the LCR; 
however, flycatcher territories within the Lake Mead to Mexico planning 
area have only been detected at the Havasu and Bill Williams River NWRs 
and within the Lake Mead National Recreation Area (MacLeod et al. 2008, 
pp. 89-92). As a result of implementing updated survey protocols and 
with additional information, these lone territories (primarily south of 
the Bill Williams River along the LCR) have not been detected since 
2005 (MacLeod et al. 2008, pp. 89-92; MacLeod and Koronkiewicz 2009, 
pp. 54-56; 2010, pp. 46-47; MacLeod and Pelligrini 2011, pp. 51-52; 
2012, pp. 43-44).
    Comment (69): In Table 2 of the proposed rule to revise critical 
habitat for the flycatcher, the Service failed to recognize private 
land ownership in California, specifically as it relates to areas 
downstream of Morris Dam on the San Gabriel River and adjacent to the 
Big Tujunga Wash Mitigation Area, in Los Angeles County.
    Our Response: The Service inadvertently excluded data for private 
landownership in California in the proposed rule. We have made the 
appropriate changes in this final rule (see TABLE 2).
    Comment (70): One commenter wrote that the southwestern willow 
flycatcher is not recognized as a valid subspecies by the American 
Ornithologists' Union (AOU), and differences in morphological measures 
between flycatcher species and subspecies are flawed.
    Our Response: We are not familiar with any issue within the AOU, or 
the scientific community in general, over the recognition of the 
southwestern subspecies of the willow flycatcher. The 1957, fifth 
edition of the AOU Checklist is the most recent version of the 
checklist that addressed subspecies. In 1973, the AOU separated the 
Traill's flycatcher (Empidonax traillii) into the willow (Empidonax 
traillii) and alder (Empidonax alnorum) flycatcher. The AOU has yet to 
provide any subspecies updates since its 1957 version. However, other 
entities have subsequently provided up-to-date and AOU-endorsed 
descriptions. Today, the Clements Checklist presents more than 9,930 
species of birds recognized by the scientific and birding communities, 
including the AOU. The southwestern subspecies of the willow flycatcher 
is recognized within the Clements Checklist (http://www.birds.cornell.edu/clementschecklist/). Similarly, an additional 
authority on subspecies is the list of The Birds of North America 
(http://www.bna.birds.cornell.edu/bna/). The Birds of North America 
description of species and subspecies also provides taxonomic 
information and is supported by the AOU, Cornell Laboratory of 
Ornithology, and Academy of Natural Sciences. The flycatcher is also 
recognized in the Birds of North America resource as a subspecies of 
the willow flycatcher.
    We are unfamiliar with any issue about flycatcher morphological 
measurements. We recommend reviewing the willow flycatcher summary, 
including the discussion about measurements (and subspecies) found in 
The Birds of North America's willow flycatcher life history description 
(Sedgwick 2000, entire). This account can be acquired from The

[[Page 477]]

Birds of North America Online at http://www.bna.birds.cornell.edu/bna/.
    Comment (71): The Service fails to acknowledge work by F. Merriam 
Bailey (1928), McLeod et al. (2009), Ellis et al. (2008), and others 
documenting an expansion of the species.
    Our Response: We agree that the number of known flycatcher 
territories and breeding sites has increased since its listing in 1995. 
The recent work conducted by McLeod and Koronkiewicz (2009) and Ellis 
et al. (2008) have both been reviewed and are cited within the proposed 
and final rules. We are uncertain exactly which F. Merriam Bailey 
document is referenced within this comment, but it could be The Birds 
of New Mexico. Within our flycatcher life history summary described 
above, we cited sources such as Hubbard (1987, pp. 6-10), Unitt (1987, 
pp. 144-152), and Browning (1993, pp. 248, 250), that provided 
flycatcher specific information. The historical breeding range of the 
flycatcher includes southern California, southern Nevada, southern 
Utah, Arizona, New Mexico, western Texas, southwestern Colorado, and 
extreme northwestern Mexico. The flycatcher's current range is similar 
to the historical range. In 1995, only 359 flycatcher territories were 
known from California, Arizona, and New Mexico. Unitt (1987, p. 156) 
estimated the entire southwestern subspecies was ``well under 1,000 
pairs, more likely 500.'' In the July 23, 1993, flycatcher listing 
proposal (58 FR 39495, p. 39498), 230 to 500 territories were estimated 
to exist. Following the 2007 breeding season, USGS (Durst et al. 2008, 
p. 4) estimated that 1,299 flycatcher territories were known to exist 
rangewide. The reason for the increase in the number of known 
territories is a combination of improved survey effort and technique 
combined with improved management and population growth.
    Comment (72): Final reports are available for the Lower Colorado 
River, Gila River, and Rio Grande for the years 2007 to 2010. Data from 
surveys conducted after 2007 would be useful to incorporate into the 
proposal due to changes in bird numbers and bird use in these areas.
    Our Response: A variety of sources were used to determine breeding 
site location and information from 1991 to 2010. The Recovery Plan 
(Service 2002), the USGS flycatcher rangewide database (Sogge and Durst 
2008), the 2007 flycatcher rangewide report (Durst et al. 2008), and 
recent survey information for the 2008, 2009, and 2010 breeding seasons 
(including those from the Lower Colorado River, Gila River, and Rio 
Grande) were all used as authoritative sources of information on 
breeding flycatcher distribution and abundance. The flycatcher 
rangewide database developed and maintained by USGS (Sogge and Durst 
2008) compiles the results of surveys conducted throughout the bird's 
range from 1991 through 2007. We also examined 2008 to 2010 data that 
the Service in Arizona, Nevada, Utah, New Mexico, and Colorado, 
compiled and entered into separate databases and spreadsheets. However, 
these post-2007 flycatcher data were difficult to comprehensively 
incorporate into this rule because they have not yet been analyzed and 
synthesized into the overall rangewide database. Therefore, much of our 
compiled rangewide information ends following the 2007 breeding season.
    Comment (73): The IPCC models of climate change are neither 
accurate nor reliable.
    Our Response: We addressed these models within our proposed rule 
(76 FR 50542, August 15, 2011, pp. 50547-50548), stating, ``as is the 
case with all models, there is uncertainty associated with projections 
due to assumptions used and other features of the models. However, 
despite differences in assumptions and other parameters used in climate 
change models, the overall surface air temperature trajectory is one of 
increased warming in comparison to current conditions (Meehl et al. 
2007, p. 762; Prinn et al. 2011, p. 527).'' The Service will continue 
to follow and assess the science behind climate change and update our 
summaries as new information is published.
    Comment (74): The Service's suggestion of the need to suppress fire 
is entirely archaic and dangerous.
    Our Response: The Recovery Plan (Service 2002, Appendix L) provides 
a description of land use and management actions that have led to the 
increased occurrence of fires in riparian areas. The Service's 
expectation of fire management is consistent with the needs of the 
flycatcher, our policies under the Act, and implementation of emergency 
actions, such as those associated with fire management to preclude 
dangerous situations that would place human life or property in 
jeopardy. Our fire management recommendations focus on improving 
habitat conditions that would reduce fire in riparian areas and return 
them to a less frequent and more natural fire regime.
    Comment (75): The Service should not designate critical habitat in 
areas that have ephemeral habitat such as Horseshoe Reservoir, the 
confluence of the Virgin River and Lake Mead, upper Lake Mead near 
Pearce Ferry, or the Muddy River. Commenters expressed concern that 
these areas do not possess the primary constituent elements of 
essential features and contain habitat that is temporary and not 
essential for the conservation of the species. Further, Federal 
agencies may not have discretion to manage some of these areas.
    Our Response: Flycatcher habitat is naturally ephemeral and its 
mosaic-like distribution is dynamic because riparian vegetation is 
typically prone to periodic disturbance (i.e., flooding) (Service 2002, 
p. 17). Flooding is a necessary function in order to recycle habitat 
and create vegetation in a structure and density needed for nest 
placement, to replenish aquifers, and to distribute appropriate soils 
that create seed beds for the germination and growth of flycatcher 
habitat. The range and variety of stream flow conditions (frequency, 
magnitude, duration, and timing) (Poff et al. 1997, pp. 770-772) that 
establish and maintain flycatcher habitat can arise in both regulated 
and unregulated flow regimes throughout its range (Service 2002, p. D-
12). Because of their dynamic water storage operations, the dams that 
operate the reservoirs identified in this comment, and others within 
the flycatcher's range, can help establish extensive riparian habitat 
within the conservation space of the lake when the water recedes. These 
processes have developed the riparian habitat and prey components 
described in the primary constituent elements of essential physical or 
biological features that support flycatcher territories. Flycatcher 
habitat can be supported by managed water that mimics key components of 
the natural hydrologic cycle creating varying amounts of flycatcher 
habitat important for its recovery.
    We acknowledge that in some instances the discretion of a Federal 
agency with regards to water management may be limited. When action 
agencies evaluate their responsibilities under the Act, distinguishing 
to what extent their agency has discretion is an important 
consideration to determine their overall proposed action and effects 
analysis when consulting with the Service under section 7 of the Act.
    Comment (76): One commenter asserted that critical habitat 
designation has little impact or effect to species in remote areas or 
where public access is limited.
    Our Response: The commenter did not specify which areas were the 
subject of this comment. However, we proposed areas as critical habitat 
that we

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determined meet the definition of critical habitat under the Act (see 
Critical Habitat, Background). It may be true that limited benefits of 
critical habitat may be seen in some areas, and this is information 
that can be considered in an exclusion analysis of any given area (see 
Exclusions).
    Comment (77): The proposed rule states that critical habitat does 
not include manmade structures such as aqueducts, roads, and other 
paved areas; however, some proposed stream reaches, such as the San 
Gabriel River, do include manmade flood control channels, levees, and 
concrete drop structures that require maintenance by the Corps 
including the occasional removal of deposited sediments. These areas 
should be removed from the final critical habitat designation.
    Our Response: In the development of this final rule, we have 
reviewed lands included in our proposal and, to the extent practicable, 
have revised and removed developed areas from critical habitat that we 
determined do not contain physical or biological features essential for 
the conservation of the species (see Summary of Changes From the 
Proposed Rule section, above). We made every effort to remove all 
developed areas, such as housing developments, roads, and other lands 
not reasonably believed to contain, or be capable of supporting, the 
physical or biological features essential for flycatcher conservation. 
However, due to the limitations in technology, it is not possible to 
remove every one of these developed areas. Nor does the Service have 
the ability to ground truth and confirm each recommended developed area 
for removal. As a result, even at the refined mapping scale, the maps 
of the final designation may still include developed areas that do not 
contain these features (see Criteria Used to Identify Critical Habitat 
section). Developed areas that do not contain the physical or 
biological features essential for the conservation of the species 
within the boundaries of critical habitat are not considered to be 
critical habitat, and, thus, actions in those areas would not trigger 
consultation unless they affected adjacent critical habitat.
    However, as described within this rule, some developed areas, such 
as irrigation ditches, levees, or reservoir bottoms, and the influence 
of manipulated water, such as agricultural return flow or treated waste 
water create conditions that support riparian habitat used by the 
flycatcher. In some instances, these areas can provide unanticipated, 
but important opportunities for flycatcher conservation and recovery. 
It is possible that areas surrounding flood control structures can 
similarly trap sediment and water that facilitates the development of 
riparian habitat. We encourage coordination with the Service to help 
provide technical assistance to evaluate these areas.
    Comment (78): One commenter states that habitat areas within 
existing power line corridors and rights-of-way that are required to be 
maintained under existing Federal energy laws and regulations are not 
essential to the conservation of the species because they currently do 
not, and in the future cannot, contain the primary constituent elements 
of essential features; these corridors should be identified and removed 
from the final critical habitat designation. Similarly, several 
comments suggested exclusion of right-of-way corridors adjacent to 
bridges.
    Our Response: When determining proposed critical habitat 
boundaries, we made efforts to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack the primary elements of physical or biological features and 
primary constituent elements for flycatcher habitat. These types of 
developments are not typically found adjacent to rivers within 
floodplains and, when they do occur, may be missing from or 
inaccurately represented in existing map sources. As a result, because 
of the large scope of this designation and the limitations of maps, any 
such developed lands, such as cement pads which support transmission or 
power poles or roads left inside critical habitat boundaries, are not 
considered designated as critical habitat because they lack the 
necessary physical or biological features. Therefore, a Federal action 
involving these developed lands would not trigger section 7 
consultation with respect to critical habitat or the prohibition of 
adverse modification, unless the specific action would affect the 
physical or biological features in the adjacent critical habitat. 
However, if lands surrounding these developed areas that fall within 
rights-of-way have the physical and biological features to develop the 
primary constituent elements of flycatcher critical habitat, then they 
would be subject to consultation.
    Comment (79): One commenter supported the addition of a 0.40-km 
(0.25-mi) segment of the Rio Fernando de Taos in the upper Rio Grande 
Management Unit in New Mexico as critical habitat, but also recommended 
expanding this critical habitat area to include a marsh across from and 
west of Baca Park.
    Our Response: We have examined this area and are uncertain about 
the amount of marsh vegetation (e.g., cattails, etc.) and limited woody 
vegetation from which flycatchers can nest, perch, and forage and to 
what extent this additional area provides essential habitat for nesting 
flycatchers.
    Our methodology focused on identifying areas of habitat that are 
important for reaching the numerical territory and habitat-related 
goals described in the Recovery Plan. We proposed just over 98 km (61 
mi) of stream segments collectively along the Rio Grande, Coyote Creek, 
Rio Grande Del Ranch, and Rio Fernando as flycatcher critical habitat 
within the Upper Rio Grande Management Unit. We believe these areas are 
capable of reaching the 75 territory goal established in the Recovery 
Plan.
    In some Management Units, especially those with more abundant 
habitat like the Upper Rio Grande Management Unit, not all locations 
where flycatcher habitat occurs or may occur, or areas where 
territories have been detected, were designated as critical habitat. 
Regardless of whether an area is designated as critical habitat, those 
areas can still be important flycatcher habitats that contribute to 
recovery and are subject to section 7 of the Act.
    Comment (80): One commenter was concerned that the protection of 
invertebrate prey as an essential physical or biological feature is 
precluded by current Service policy and projects relative to the use of 
aquatic pesticides within the areas proposed for critical habitat 
designation in both Arizona and New Mexico. The uses of rotenone and 
antimycin A have been sanctioned by the Service for the treatment of 
aquatic communities for native fish restoration, although both 
substances have been proven to decimate aquatic invertebrate 
assemblages.
    Our Response: The flycatcher is an insect-eating generalist 
(Service 2002, p. 26), eating a wide range of invertebrate prey 
including flying, and ground- and vegetation-dwelling insect species of 
terrestrial and aquatic origins (Drost et al. 2003, pp. 96-102). Wasps 
and bees are common food items, as are flies, beetles, butterflies, 
moths and caterpillars, and spittlebugs (Beal 1912, pp. 60-63; McCabe 
1991, pp. 119-120). Diet studies of adult flycatchers found a wide 
range of prey taken from small flying ants to large dragonflies, with 
true bugs comprising half of the prey items (Drost et al. 1998, p. 1; 
DeLay et al. 1999, p. 216). Willow flycatchers also took the larvae of 
non-flying species.

[[Page 479]]

From an analysis of the flycatcher diet along the South Fork of the 
Kern River, California (Drost et al. 2003, p. 98), flycatchers consumed 
prey from 12 different insect groups. Therefore, while the flycatcher 
is known to consume aquatic insects, it is an insect generalist and is 
reliant on a variety of insects, many of which are not aquatic in their 
origin.
    The use of piscicides (chemicals that kill fish) in fisheries 
management have long prompted concerns over the potential human health 
and ecological impacts. In June 2011, the AGFD Director authorized the 
Rotenone Review Advisory Committee to advise and make recommendations 
regarding the use of rotenone and other piscicides for Arizona 
fisheries and aquatic wildlife management. Antimycin A is no longer 
commercially available, limiting current use to small supplies held in 
inventory by some State and Federal fish and wildlife service agencies. 
Only rotenone formulations are currently available for purchase. Four 
subcommittees were formed to provide technical expertise, opinion, and 
analyses on the use of piscicides. In December 2011, a final report was 
issued which confirmed the continued use of piscicides. The report also 
recommended that applications of rotenone be consistent with U.S. 
Environmental Protection Agency labeling requirements, appropriate 
State and Federal laws and regulations, and the Rotenone Standard 
Operating Procedures manual. As both rotenone and antimycin A have 
impacts to non-target aquatic organisms (including food resources for 
the flycatcher), an evaluation of potential impacts to all species in 
the area, including the flycatcher would be required for any proposed 
Federal action involving use of these piscicides.
    Comment (81): The Service relied on incorrect information to 
classify the occupancy status of the San Gabriel River as no 
territories have been detected on the river since 1991.
    Our Response: In the proposed rule, the Service stated that ``* * * 
we refer to breeding sites as areas where flycatcher territories were 
detected. A territory is defined as a discrete area defended by a 
resident single flycatcher or pair of flycatchers within a single 
breeding season.'' In determining whether this area had been occupied 
since 1991, we used data from the USGS. This information was analyzed 
by Durst et al. (2008, p. 11), and it was determined that the San 
Gabriel River has had an established territory. Therefore, the Service 
concludes that territories have been documented on the San Gabriel 
River since 1991.
    Comment (82): One commenter stated that, because the proposed 
reaches of Big Tujunga Wash and Little Tujunga Wash in the Santa Clara 
Management Unit, California, have never been occupied by flycatchers, 
it appears they are being considered for critical habitat designation 
because they are within 35 km (22 mi) of the Santa Clara River and the 
San Gabriel River. The commenter stated that the areas between the 
Santa Clara River and San Gabriel River are urbanized and that there 
are features that could serve as significant obstacles to flycatcher 
migration between the Santa Clara River, Big and Little Tujunga Washes, 
and the San Gabriel River. Additionally, the commenter states that 
because the flycatchers are not occupying Big Tujunga Wash, and it is 
unlikely they will, it is likely the flycatchers are also not occupying 
or going to occupy Little Tujunga Wash. The commenter indicated that 
the proposed rule clearly stated it is not designating areas as 
critical habitat solely because they are serving as migration habitat. 
Therefore, the commenter believes that the cited reaches in Big and 
Little Tujunga Washes do not meet the criteria for critical habitat 
that is essential for the survival of the flycatcher.
    Our Response: While the Big Tujunga Wash is not considered to be 
occupied, it is included in the final critical habitat designation 
because it is considered to be essential to the conservation of the 
species. The Santa Clara, Ventura, and San Gabriel Rivers, Piru Creek 
and Big Tujunga Canyon, were identified in the Recovery Plan as having 
substantial recovery value in the Santa Clara Management Unit (Service 
2002, p. 86). These areas are essential to flycatcher conservation 
because they are anticipated to provide habitat for metapopulation 
stability, gene connectivity through this portion of the flycatcher's 
range, protection against catastrophic population loss, and population 
growth and colonization potential. As a result, these river segments 
and associated flycatcher habitat are anticipated to support the 
strategy, rationale, and science of flycatcher conservation in order to 
meet territory and habitat-related recovery goals.
    Based on these comments, we reviewed maps and reports and 
reevaluated Little Tujunga Creek. We discovered that the 2.2-km (1.4-
mi) segment of the Little Tujunga Creek is not essential for the 
flycatcher because it provides minimal habitat, metapopulation 
stability, or prevention against catastrophic loss. As a result, we 
determined that it was not essential for flycatcher conservation and 
removed it from our critical habitat designation.
    Comment (83): One commenter stated that the north end of Recapture 
Reservoir and Recapture Canyon (a tributary of the San Juan River) near 
Blanding, Utah, appears to be potential flycatcher habitat, but the 
commenter was unaware if the area is occupied by willow flycatchers.
    Our Response: We have no documented or anecdotal reports of willow 
flycatchers at Recapture Reservoir or Canyon, in southwest Utah, within 
the San Juan Management Unit, nor was this area identified within the 
Recovery Plan. Typically, narrow canyons can have abundant riparian 
habitat, but not the expansive amounts of floodplain and habitat needed 
for flycatchers to establish territories. We did however; identify and 
propose as critical habitat areas along the San Juan River in Utah and 
New Mexico, as well as the Los Pinos River in Colorado, where 
flycatcher territories and migrant flycatchers have been detected 
within this Management Unit. We encourage continued evaluation, survey, 
and management of new areas for flycatcher recovery and conservation. 
However, at this time, without better information about the about the 
quantity and quality of the habitat for the willow flycatcher at 
Recapture Reservoir and Canyon, we will not propose it for critical 
habitat.
    Comment (84): One commenter noted that the Los Angeles County Flood 
Control District is required by environmental regulatory agencies to 
remove nonnative vegetation on lands proposed for critical habitat 
designation at the Big Tujunga Wash Mitigation Area. Additionally, the 
commenter stated that a permit is required to conduct nonnative 
vegetation removal at the proposed area of Morris Reservoir and stated 
the San Gabriel River also contains nonnative vegetation, such as 
tamarisk and Arundo donax (giant reed), and, in the past, portions of 
this area, which are proposed for critical habitat designation, have 
been mitigation locations for several District projects. The commenter 
goes on to state that the Service's proposed restrictions on nonnative 
vegetation removal could potentially interfere with the District's 
permit requirements and threaten to undo years of effort and 
significant expense by the District to restore riparian habitat. The 
commenter believes that the critical habitat designation will conflict 
with maintenance of flood protection facilities of the Corps at Big 
Tujunga Wash, Hansen Flood Control Basin, San

[[Page 480]]

Gabriel River, and the Santa Fe Flood Control Basin.
    Our Response: The Service acknowledges the concerns expressed by 
the commenter. The proposed designation of critical habitat for the 
flycatcher does not require that restrictions be placed on nonnative 
vegetation removal. Rather, the proposed rule does discuss some special 
management considerations or actions that may be needed for essential 
features of flycatcher habitat, such as minimizing the clearing of 
vegetation (including nonnatives) in some areas, as a recommendation. 
Additionally, we identify support for conservation measures that reduce 
habitat stressors that can allow native plants to flourish. The Service 
will work closely with Los Angeles County Flood Control District and 
any other partners to ensure that flycatcher conservation efforts are 
compatible with the needs of maintenance of flood control facilities.
    Comment (85): Areas in Los Angeles County are included in the 
proposed critical habitat because other lands throughout the 
flycatcher's range are so deficient that the Service cannot meet 
Recovery Plan objectives otherwise. Los Angeles County should not be 
burdened with critical habitat designation for the flycatcher and its 
restrictions for this reason, especially considering the significant 
adverse impacts to Los Angeles County's flood protection and water 
supply.
    Our Response: In developing the critical habitat determination, the 
Service did not solely rely on the Recovery Plan, but also used 
information from peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, 
biological assessments, and other unpublished materials and expert 
opinion or personal knowledge. The Service used the Recovery Plan for 
the flycatcher to help identify those areas that contain the physical 
or biological features essential for the conservation of the species to 
guide our decision. There are numerous drainages in the flycatcher's 
range that have the physical or biological features essential for the 
flycatcher; however, the analysis for the Recovery Plan identified 
those drainages that are most vital to recovery of the species, 
including segments within the boundaries of Los Angeles County. The 
areas proposed for designation as critical habitat were designed to 
provide sufficient riparian habitat for breeding, non-breeding, 
territorial, dispersing, and migrating flycatchers in order to reach 
the geographic distribution, abundance, and habitat-related recovery 
goals described in the Recovery Plan. For a full discussion of the 
analysis of the impacts of the designation on water supply operations, 
see Comment 15.
    Comment (86): Several commenters stated that designating critical 
habitat immediately above Seven Oaks Dam threatens the ability of the 
water agencies to put their recently obtained State-issued 
appropriative water rights to use by developing and maintaining a 
conservation pool behind the Dam.
    Our Response: Thank you for your recommendations. The end point for 
this critical habitat segment along the Santa Ana River is the same 
that was finalized in our 2005 flycatcher critical habitat designation. 
We are not including an area immediately behind Seven Oaks Dam in final 
critical habitat designation, but leave approximately 50 m (164 ft) 
distance between Seven Oaks Dam and the critical habitat end point.
    Comment (87): The Service's determination that the proposed habitat 
in the Santa Ana Management Unit is essential for the conservation of 
the species is not supported by the best available scientific data for 
any of the proposed stream segments in the Santa Ana Management Unit. 
The best available evidence from a recent survey demonstrates that most 
of the proposed critical habitat in the Santa Ana Management Unit is 
either completely barren or fails to meet the minimum requirements for 
suitable riparian habitat. If a geographical area is uninhabitable, it 
follows that it is not currently occupied by the flycatcher, and it 
cannot therefore be designated absent a finding that the occupied 
portions of the habitat are inadequate (50 CFR 424.12(e)). The Service 
has made no such finding, and the best available evidence would not 
support such a finding.
    Our Response: Section 3(5)(A)(i) of the Act provides for the 
designation of critical habitat in specific areas within the 
geographical area occupied by the species, at the time it is listed 
which contain the physical or biological features essential to the 
conservation of a species, and which may require special management 
considerations or protection. Under section 3(5)(A)(ii) of the Act's 
definition of critical habitat, we can designate critical habitat in 
areas outside the geographical area occupied by the species at the time 
it is listed, upon a determination that such areas are essential for 
the conservation of the species. For example, an area currently 
occupied by the species but that was not occupied at the time of 
listing may be essential for the conservation of the species and may be 
included in the critical habitat designation. We designate critical 
habitat in areas outside the geographical area occupied by a species 
only when a designation limited to its range would be inadequate to 
ensure the conservation of the species, as defined by the Flycatcher 
Recovery Plan in the case with the flycatcher.
    If a finding is made that an area is essential to the conservation 
of a species, we may include such areas as critical habitat even if 
they were not known to be occupied at the time of listing, are not 
occupied currently, or do not currently contain the essential habitat 
features. The Santa Ana Management Unit consists of a diverse and 
widely distributed group of seven streams that were identified in the 
Recovery Plan as areas of substantial recovery value (although Oak Glen 
Creek was not specifically named as a tributary to the Santa Ana River) 
(Service 2002, p. 86).
    The Santa Ana Management Unit, which is primarily comprised of the 
Santa Ana River drainage, specifically has a recovery goal of 50 
flycatcher territories. We proposed as critical habitat segments along 
the lower portion of the Santa Ana River within Riverside County, which 
we were mostly excluded under section 4(b)(2) of the Act based on the 
Western Riverside County MSHCP (see Exclusions section), and also 
proposed areas within the San Bernardino National Forest. Areas within 
the middle portion of the Santa Ana River were not proposed as critical 
habitat.
    Since the flycatcher was listed, the stream segments proposed as 
flycatcher critical habitat have since be found to possess flycatcher 
territories from the lower portions of the Santa Ana River drainage 
near Prado Dam to the upper portion and tributaries within the San 
Bernardino National Forest. A total of 30 flycatcher breeding sites 
were known within this Management Unit, with a high of 49 territories 
detected in 2001. Together, these stream segments are essential for 
flycatcher conservation because they are anticipated to provide habitat 
for metapopulation stability, gene connectivity through this portion of 
the flycatcher's range, protection against catastrophic population 
loss, and provide for population growth and colonization potential. As 
a result, these river segments and associated flycatcher habitat are 
anticipated to support the strategy, rationale, and science of 
flycatcher conservation in order to meet territory and habitat-related 
recovery goals.
    Comment (88): The proposed rule fails to distinguish between 
currently

[[Page 481]]

occupied and unoccupied areas within the Santa Ana Management Unit. If 
the Service meant to suggest that all proposed critical habitat in the 
Santa Ana Management Unit is currently occupied, then this conclusion 
is contradicted by the best available scientific data, which reveal 
that about two-thirds of the proposed habitat is either completely 
barren or lacking in riparian habitat capable of supporting 
flycatchers. To support the designation of the Santa Ana Management 
Unit as currently occupied, the Service must at least demonstrate, with 
the best available scientific data, that each segment proposed for 
designation is currently used by the flycatcher. Unoccupied areas in 
the Santa Ana Management Unit should be removed from the final 
designation, or properly supported as presently unoccupied habitat.
    Our Response: While the proposed critical habitat segments within 
the Santa Ana Management Unit were not within the geographical area 
known to be occupied at the time of listing, all of the segments have 
been known to be occupied at some time since listing (see the ``Santa 
Ana Management Unit, California'' discussion above). Additionally, 
under the definition of critical habitat provided in the Act, an area 
need not be currently occupied in order to be included in a critical 
habitat designation. If an area meets the definition of critical 
habitat as interpreted for any given species (see Criteria Used to 
Identify Critical Habitat section above), the area should be proposed 
as critical habitat regardless of its current occupancy status.
    Comment (89): Several commenters were concerned with the Service's 
reliance on the Recovery Plan to justify proposing portions of the 
Santa Ana Management Unit as critical habitat. The commenters asserted 
that there are no data, habitat assessments, or survey results in 
either the Recovery Plan or in the proposed rule to support a 
conclusion that substantial recovery value exists in the listed stream 
segments in the Santa Ana Management Unit, and, that by relying so 
heavily on Recovery Plan, the Service has failed to consider the 
physical or biological features essential for the conservation of the 
species, special management considerations, and the current best 
available scientific data regarding the actual features of the specific 
stream segments themselves.
    Our Response: The Service has used the best available scientific 
data in our determination of stream segments that meet the definition 
of critical habitat for the flycatcher. The Recovery Plan (Service 
2002) was developed using information from 58 individuals from numerous 
scientific agencies and stakeholders, including data on habitat 
assessments and surveys. The Recovery Plan identifies specific river 
reaches, within Management Units, where recovery efforts should be 
focused and where substantial recovery value exists of currently or 
potentially suitable habitat (Service 2002, p. 86). Even so, in 
developing the critical habitat determination, the Service did not 
solely rely on the Recovery Plan, but also used information from peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, and 
other unpublished materials and expert opinion or personal knowledge. 
As discussed above, we have determined that, while the Santa Ana 
Management Unit was not within the geographical area known to be 
occupied at the time of listing, the area is essential to the 
conservation of the species, flycatcher territories have been detected 
throughout the lower and upper portions of the river drainage (Service 
2002, figure 5; p. 8, 67, 84, and 86), and is appropriately identified 
as critical habitat.
    In the definition of critical habitat under the Act, areas that 
were occupied at the time of listing and not occupied at the time of 
listing are treated separately. Areas that are included in critical 
habitat because they were not known to be occupied at the time of 
listing, yet are determined to be essential to the conservation of the 
species, need not have the features essential to the conservation of 
the species. As such, a finding that an area contains the essential 
habitat features that may require special management is not required 
for areas that were not known to be occupied at the time of listing.
    In our discussion of the physical or biological features essential 
for the conservation of the species in the proposed rule, we stated 
that flycatcher habitat that is not currently suitable for nesting at a 
specific time, but is useful for foraging and migration, can still be 
important for flycatcher conservation. Feeding sites and migration 
stopover areas are important components for the flycatcher's survival, 
productivity, and health, and they can also be areas where new breeding 
habitat develops as nesting sites are lost or degraded (Service 2002, 
p. 42). These successional cycles of habitat change are important for 
long-term conservation of flycatcher habitat.
    Comment (90): The Service's finding that the proposed stream 
segments in the Santa Ana Management Unit are essential for flycatcher 
conservation is contradicted by the discussion of potential effects of 
climate change on flycatcher habitat included in the proposed rule. If 
climate change will cause increased warming, increasingly frequent warm 
spells and heat waves, greater frequency of heavy-precipitation events, 
decreased stream flows, and greater frequency of fires, as asserted in 
the proposed rule, then the riparian habitat scattered throughout the 
stream segments in question is likely to decrease, reducing habitat 
available for flycatcher breeding, foraging, migration, and shelter.
    Our Response: The Service does not believe that the discussion of 
the potential effects of climate change to the flycatcher contradicts 
the essential nature of the stream segments identified in the Santa Ana 
Management Unit. The discussion in the proposed rule concerning the 
various effects of climate change states that these actions may present 
a challenge evaluating habitat conditions for the flycatcher. The 
Service also states in the proposed rule that exactly how climate 
change will affect precipitation in the specific areas with flycatcher 
habitat is uncertain. All potential threats to the flycatcher and its 
habitat are taken into consideration when identifying areas for 
critical habitat designation, and we state in the proposed rule that 
these areas may require special management considerations.
    Comment (91): Several commenters asserted that California's State 
Water Resources Board Decision 1649 supports a conclusion that the 
Santa Ana Management Unit is not essential habitat for the flycatcher 
and that Seven Oaks Dam and Prado Dam do not require special management 
considerations or protections. The commenters stated that the Service 
must consider State Water Resources Board Decision 1649 because it is 
required to do so by section 2(c)(2) of the Act, which obligates the 
Service to cooperate with State and local agencies to resolve water 
resource issues in concert with conservation of endangered species. 
Additionally, the best available scientific evidence demonstrates 
special management of the flood control and water conservation 
operations at Seven Oaks Dam or Prado Dam would have negligible benefit 
to the species while severely damaging existing water rights and local 
water supplies.
    Our Response: The commenters asserted that the State Water 
Resources Board Decision 1649 determined the

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area is not essential. However, the State Water Resources Board 
Decision 1649 language was not used in the context of critical habitat 
as defined under section 3 of the Act. A designation of critical 
habitat is made by the Service in accordance with the provisions of the 
Act and its implementing regulations. Critical habitat designation is 
not required under and is not governed by State law. When we conduct a 
critical habitat analysis, we use the best available scientific data to 
determine the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features essential for the 
conservation of the species which may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species (see Critical Habitat section above).
    The State Water Board is not charged with the legal responsibility 
to designate critical habitat, and Decision 1649 does not incorporate 
critical habitat as defined by the Act (as we did in the proposed 
revised critical habitat rule and in this final rule). Thus, any 
decision made by the State under State law regarding ``essential'' 
flycatcher habitat cannot supersede this final critical habitat 
analysis and designation.
    We further note that State Water Resources Board Decision 1649 
(2009, p. 23) specifically states that any analysis of impacts of 
potential water conservation operations (i.e., water diversion or 
holding water for sale) on endangered species must ensure all 
appropriate agencies have been consulted. As a result of the California 
Regional Water Quality Control Board's decision, specific analysis of 
water diversions or holding water for conservation by Federal Agencies 
must be evaluated under section 7 of the Act for effects on the 
flycatcher and its habitat. It is through section 7 consultation that 
we will evaluate the impacts of the proposed water diversion or 
conservation operations on the flycatcher and its designated critical 
habitat.
    Comment (92): Several commenters asserted that the current 
operations of both Seven Oaks Dam and Prado Dam benefit the species by 
increasing the availability of suitable riparian habitat, which would 
be compromised by the proposed designation of the Santa Ana Management 
Unit. Similarly, one commenter noted that the existing and ongoing 
water management practices within and adjacent to the San Gabriel River 
Unit encourage riparian conditions and the physical and biotic 
conditions favorable and beneficial to the flycatcher.
    Our Response: The Service agrees that dam operations can cause 
water to spread out over a wider area more consistently than there 
would be without the dam, potentially causing the development of 
riparian habitat over a large area. However, depending on how each dam 
is operated, flycatcher habitat may or may not be able to develop due 
to the amount and length of time water is stored or covers the 
floodplain or lake bottom. Additionally, some dams divert water from a 
river such that stream flows downstream of the dam are not consistent 
or substantial enough, and sometimes water rarely returns to the river 
channel, thereby removing the opportunities for habitat to persist. 
Therefore, we do not agree with the commenters' assertions that 
operations of the Seven Oaks Dam and Prado Dam or water management 
practices within and adjacent to the San Gabriel River Unit will 
necessarily benefit the flycatcher by increasing the amount of suitable 
riparian habitat or that designation of critical habitat will 
compromise current operations.
    Comment (93): Several commenters stated that the environmental 
impacts and mitigation associated with the construction and operation 
of Seven Oaks Dam were addressed in the 1988 ``Phase II General Design 
Memorandum on the Santa Ana River Mainstem Including Santiago Creek, 
California, Main Report and Supplemental Environmental Impact 
Statement'' (EIS). The commenters asserted that the mitigation required 
by the supplemental EIS continues to sufficiently address the 
biological impacts from operations of the Seven Oaks Dam.
    The commenters also stated that the 2000 final biological 
assessment completed by the Corps to evaluate the biological impacts of 
post-dam operations at Seven Oaks Dam determined that in Subarea 1 
(which includes the dam and reservoir pool/inundation area, and 
encompasses the 100-year floodplain up to an elevation of about 790 m 
(2,580 ft)), operations of Seven Oaks Dam for flood control, would have 
no effect on the flycatcher. The commenter added that the Corps-
determined Subarea 1 lacked suitable habitat for the flycatcher, and 
that although emergent riparian vegetation occurred in one portion of 
Subarea 1 (Santa Ana Canyon), the Corps determined that no adverse 
impact to the flycatcher was anticipated because the patches were not 
of sufficient breadth or width to support any but transient or 
migratory individuals.
    The commenters additionally pointed out that the Service's 2002 
biological opinion on operations for Seven Oaks Dam and the possible 
effects on the flycatcher concluded that operation of the dam for flood 
control purposes was not likely to adversely affect the flycatcher. The 
commenter believes the inclusion of Seven Oaks Dam and Reservoir in the 
proposed rule is therefore inconsistent with the Service's own 
assessment of impacts of dam operations on the flycatcher.
    Our Response: The Service included the areas in question in the 
vicinity of Seven Oaks Dam in the proposed revised critical habitat 
designation for flycatcher because we determined these areas are 
essential for the conservation of the species based on habitat 
conditions and information provided in the flycatcher recovery plan, 
not because we believe dam operations are adversely impacting the 
species, as the commenter suggested (see Criteria Used To Identify 
Critical Habitat section above). Additionally, as discussed in the 
response above concerning the designation of the physical dam and 
reservoir, the Service is not designating critical habitat on manmade 
features that do not contain the physical or biological features 
essential for the conservation of the species for the flycatcher, or 
the reservoir behind Seven Oaks Dam (see Summary of Changes From the 
Proposed Rule above for further discussion).
    Comment (94): Several commenters asserted that the critical habitat 
designation in the Santa Ana River, including its associated 
tributaries, above and below Seven Oaks Dam, may prevent public 
agencies from providing and maintaining safe passage of large flood 
flows and will impact the ongoing construction, operation, and 
maintenance of several elements of the Santa Ana River Mainstem Flood 
Control Project. The commenters expressed concern that the designation 
of critical habitat would place significant restrictions on operations 
and management and potentially affect the lives and property of 
millions of citizens. The commenters also assert that any restriction 
of the operation of Seven Oaks Dam risks flooding on the Santa Ana 
River, including the potential damage to infrastructure operated by the 
wat