Federal Register, Volume 78 Issue 2 (Thursday, January 3, 2013) 2013 Federal Register, 78 FR 343-534; Centralized Library: U.S. Fish and Wildlife Service -

[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

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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.

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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.

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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

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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

[[Page 367]]

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

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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

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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

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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.
------------------------------------------------------------------------

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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

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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

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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

[[Page 391]]

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

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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

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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

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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

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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.

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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

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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

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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

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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

[[Page 410]]

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.

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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

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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.

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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

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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

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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

[[Page 432]]

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)

[[Page 433]]

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

[[Page 439]]

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,

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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

[[Page 473]]

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

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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

[[Page 478]]

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.

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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

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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

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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
water management agencies downstream of Seven Oaks Dam, and ignores the
congressional purpose of authorizing and funding the construction of
the Santa Ana Mainstem Project for the express purpose of

[[Page 483]]

preventing flood damage to life and property.
Our Response: Under section 7 of the Act, a Federal agency consults
with the Service to ensure activities it undertakes do not adversely
modify designated critical habitat. However, section 7(p) of the Act,
concerning Presidentially declared disaster areas, allows for emergency
actions to be taken without section 7 consultation in the event of an
``emergency situation which does not allow the ordinary procedures of
this section to be followed.'' Thus, the Service does not anticipate
that any consultation in this area would require that species
conservation take precedence over protection of human life or property.
Our consultation record since 1995 has demonstrated that the listing of
the flycatcher or designation of critical habitat has not resulted in
the inability to protect existing flood control structures or
operations. The Service believes that flycatcher conservation, the
requirements of Federal agencies to evaluate and consult on potential
adverse effects to the flycatcher and its critical habitat can be
compatible with the maintenance of flood control structures and
operations (see Comment 15 for more explanation regarding impacts to
water operations).
Comment (95): One commenter requested that the Service buffer its
critical habitat designation by removing from critical habitat the area
60 m (200 ft) from the center line of a highway to minimize any
disturbance to the critical habitat that might occur as a result of any
routine maintenance and repair work.
Our Response: We identified the lateral extent of all proposed
lands for critical habitat designation as those areas within the
boundaries of the 100-year floodplain that currently support, or have
the possibility to support, the physical or biological features
essential for the flycatcher. We identified that existing paved
roadways that may occur within the critical habitat boundaries where
habitat could not be established, would not be considered critical
habitat, even though we were unable to identify and extract those
locations from our designation. However, routine maintenance activities
on roadways or adjacent to roadways could affect critical habitat or
the flycatcher depending on the type of activity, extent of
maintenance, season of work, development of temporal access roads, or
any number of various actions. The impacts to the flycatcher or to its
designated critical habitat must be considered by any Federal agency
planning to conduct or permit such activities.
Comment (96): A commenter expressed concern that critical habitat
designation would restrict or eliminate the continuation of riparian
management efforts such as wildland fuels reduction projects, and
biological and mechanical control of tamarisk and Russian olive.
Our Response: Designation of critical habitat has no impact on
decisions that private landowners make on their land that do not
require Federal funding or permits. Federal agencies that undertake,
fund, or permit activities that may affect critical habitat are
required to consult with the Service to ensure such actions do not
adversely modify or destroy designated critical habitat. Critical
habitat does not close any public or private lands to most activities;
critical habitat designation only serves to identify areas essential to
flycatcher conservation. Should projects be proposed for these areas
that require Federal funding or permitting, the Federal agency would be
required to disclose the potential negative impacts to flycatchers or
their primary constituent elements.
Our environmental assessment for the proposed rule (section
3.5.2.1) concludes that there would be minimal impacts on fire risk
reduction projects and wildland fire suppression projects. Conservation
activities and measures, such as appropriate seasonal timing and
avoiding occupied locations, are limitations that will continue to
allow fire management goals to be achieved. Furthermore, this rule and
the Recovery Plan supports proposed management actions that reduce the
land management actions that result in the increase in exotic plant
species and supports actions that improve landscape conditions allowing
native plants to flourish.

Other Comments Related to Exclusion Areas

Comment (97): One commenter does not support the exclusion of
properties under section 4(b)(2) of the Act.
Our Response: Exclusion of areas from final designation of critical
habitat is provided for under section 4(b)(2) of the Act, when a
determination is made that the benefits of excluding any area from
critical habitat outweigh the benefits of including that area in
critical habitat, provided that exclusion of that area from critical
habitat will not result in extinction of the species. Please see the
Application of Section 4(b)(2) of the Act section for a full discussion
of the areas we have determined are appropriate to exclude from the
final designation of critical habitat.
Comment (98): Many commenters identified particular areas that they
believed should not be designated because critical habitat will
unnecessarily burden the regulated public and will overload Service
staff with implementation of the designation. Specifically, many
private landowners with water diversions, cattle ranches, and
agricultural property, plus residents in areas dependent on recreation
to support local economies throughout the flycatcher's range, commented
that this designation would cause them harm economically, could limit
the ability of farmers and ranchers to till productive farmland, could
limit use of fertile grazing land, could restrict the utilization of
critical water rights, and could delay projects through the regulatory
process.
Our Response: Pursuant to the Act, we are statutorily required to
designate critical habitat for a federally listed species if it is
determined to be both prudent and determinable. We made a determination
that critical habitat was both prudent and determinable in our previous
designation for the flycatcher (62 FR 39129, July 22, 1997). We further
note that we were previously under court order to revise flycatcher
critical habitat (69 FR 60706, October 12, 2004; 76 FR 60886, October
19, 2005) and reached a settlement agreement with plaintiffs and the
Court for this current revision (our proposal was published at 76 FR
50542, August 15, 2011). Please see the Previous Federal Actions
section for a discussion of the litigation history concerning this
designation.
Critical habitat designations do not constitute or create a
regulatory burden, by themselves, in terms of Federal laws and
regulations on private landowners carrying out private activities, but
in certain areas they may trigger additional State regulatory reviews
and other requirements. For example, actions occurring in critical
habitat in California may be subject to additional regulatory reviews
under the California Environmental Quality Act (California Public
Resources Code, sections 21000-21178, and Title 14 CCR, section 753,
and Chapter 3, sections 15000-15387) and other State laws and
regulations. When a private action requires Federal approval, permit,
or is federally funded, the critical habitat designation may impose a
Federal regulatory burden for private landowners; absent Federal
approval, permits, or funding, the designation should not affect
farming and ranching activities on private lands. Similarly, a Federal
nexus could result in the designation affecting future land use plans,
and the designation may trigger State requirements which could

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impact such plans. However, we note that lands included in the proposal
are waterways with limited development (housing or commercial
structures) potential. As explained in this rule, we are required to
and have developed an economic analysis of the effects of this
designation pursuant to section 4(b)(2) of the Act. Our economic
analysis considers the issues raised by the commenters.
Comment (99): We received a request to exclude Newhall Land and
Farming Company along the Santa Clara River and Castaic Creek in Los
Angeles and Ventura Counties, California, under section 4(b)(2) of the
Act, as a result of the establishment and implementation of a
collection of conservation easements. We also identified this location
in our July 12, 2012, amended proposal (77 FR 41147) as an area we were
considering for exclusion under section 4(b)(2) of the Act. The
commenter stated that land owned by Newhall Land and Farming Company
within the Santa Clara River Management Unit is already protected
through existing, pending, and future conservation easements and other
management measures.
Our Response: In developing this revised final designation, we have
considered Newhall Land and Farming Company's comments regarding
exclusion from critical habitat. We determined that approximately 807
ha (1,993 ac) of land within the Santa Clara River Management Unit
owned by Newhall Land and Farming Company meet the definition of
critical habitat under the Act. In our exclusion analysis under section
4(b)(2) of the Act, we evaluated Newhall's lands that have been placed
in conservation easements and are currently under a long-term
management plan (see Exclusions section above). Of the 807 ha (1,993
ac) of land along the Santa Clara River owned by Newhall Land and
Farming Company within the Santa Clara River Management Unit, 118 ha
(291 ac) are in conservation easements at the present time and are
being managed under the long-term Natural River Management Plan. We
determined that the benefits of exclusion from critical habitat
outweigh the benefits of inclusion for a 4.4 km (2.7 mi) portion of the
Santa Clara River east of Interstate 5 (see Exclusions section).
An additional 16 ha (39 ac) are located within the Turkey Ranch
conservation easement of the Resource Management Development Plan;
however, according to the deed restriction, under certain
circumstances, the owner will have the right to relocate all or a part
of the deed restriction to other land. This allowance for relocation of
the deed restriction to other lands does not provide long-term
conservation and management of the area. As a result, we have
determined that the benefits of including these 16 ha (39 ac) outweigh
the benefits of excluding this area. Thus, this area is included in
this final designation of critical habitat.
We also evaluated the approximately 136 ha (336 ac) of Ventura
County Floodplain lands restrictive covenant. One aspect of this
restrictive covenant that may benefit the flycatcher in the future is
farmland that may be scoured by the river will not be converted back to
farmland after the scouring event has occurred. However, due to the
uncertainty on when this may occur in the future and the fact that the
136 ha (336 ac) is not currently receiving long-term conservation and
management to benefit the flycatcher, we determined that the benefits
of including these areas from designation of critical habitat outweigh
the benefits of excluding these areas. Thus, these areas are included
in the final designation of critical habitat.
None of the remaining 537 ha (1,327 ac) of Newhall Land and Farming
Company lands are in conservation easements or restrictive covenants at
the present time to benefit the flycatcher; therefore, these areas were
not excluded from the final critical habitat designation under section
4(b)(2) of the Act.
Comment (100): One commenter asserted the Santa Ana River levees
should be excluded from critical habitat designation because levee
operations and maintenance activities are required by the Corps and
certain maintenance activities require authorization from both the
Corps and the Environmental Protection Agency. Any designation of
critical habitat would require avoidance, minimization, and
conservation for impacts to areas designated as critical habitat, and
would initiate the section 7 consultation process. This would likely
prevent or delay the maintenance of these critical flood control
facilities, required by the Corps, and thereby pose a potential threat
to public health and safety.
Our Response: The determination of whether levee operations or
maintenance may adversely affect the areas designated as critical
habitat for the flycatcher is evaluated on a project-specific basis by
the Federal action agency and the Service. Consultation on existing or
future Federal projects, such as operations and maintenance of levees
for flood control conducted by the Corps, if determined to be
necessary, would either be reinitiated or initiated by the Federal
action agency under section 7 of the Act. Our consultation record since
1995 has demonstrated that the listing of the flycatcher or designation
of critical habitat has not resulted in the inability to protect
existing flood control structures or operations. The Service believes
that flycatcher conservation resulting from the requirement of Federal
agencies to evaluate and consult on potential adverse effects to the
flycatcher and its critical habitat can be compatible with the
maintenance of flood control structures and operations.
The Service is very sensitive to the need to allow response efforts
necessary to avoid imminent loss of human life or property. Section 7
of the Act also allows for emergency consultations in response to an
act of God, disasters, casualties, national defense, or security
emergencies (such as to expedite measures required to ensure human
health and safety) (50 CFR 402.05). Emergency consultation procedures
allow action agencies to incorporate endangered species concerns into
their actions during the response to an emergency. If a Federal agency
must take emergency action that may affect a listed species or critical
habitat, the agency would contact the Service to identify actions that
could be implemented to minimize take of listed species while
responding to the emergency. The Federal action agency would initiate
formal consultation after the fact and provide necessary documentation
to the Service for an after-the-fact biological opinion that documents
the effects of the emergency response on listed species or critical
habitat. Therefore, we do not believe delays due to section 7
consultation on levee operations and maintenance activities should pose
a significant risk to human health and safety, and we did not exclude
any areas from this final critical habitat designation on the basis of
section 7 consultation on these activities.
Comment (101): The San Diego County Water Authority is requesting
exclusion because areas along the San Luis Rey River and along Agua
Hedionda Creek where existing right-of-way pipelines cross the streams
would require maintenance operations; the areas are not known to
contain flycatchers; and any adverse effects to physical or biological
features essential for the conservation of the species in these areas
would be minor and temporary.
Our Response: The existing right-of-way pipelines are within the
geographical range of the flycatcher identified at listing, have had

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documented occupancy since listing, and intersect some stream reaches
such as the San Luis Rey River and Agua Hedionda Creek. Some of the
areas in question are covered by the San Diego County Water Authority
HCP, but also fall within the boundaries of the San Diego County
Subarea Plan under the Multiple Species Conservation Plan and the
Carlsbad HMP. After carefully balancing the considerations involved in
determining whether lands should be included or excluded from the
designation of critical habitat, we have concluded that the benefits of
excluding areas within the boundaries of the San Diego County Subarea
Plan under the Multiple Species Conservation Plan and Carlsbad HMP
outweigh the benefits of inclusion (see Exclusions for further
discussion). Regarding the areas outside the boundaries of the San
Diego County Subarea Plan under the Multiple Species Conservation Plan
and Carlsbad HMP, we do not believe the maintenance operations would
negate the value of these areas in the conservation of the species. As
a result, we have determined that the benefits of inclusion outweigh
the benefits of exclusion of these areas. Thus, these portions of the
San Luis Rey River and Agua Hedionda Creek outside the San Diego County
Subarea Plan under the Multiple Species Conservation Plan and Carlsbad
HMP are included in this final designation of critical habitat.
Comment (102): One commenter requests exclusion from critical
habitat designation on the proposed segment between Morris Reservoir
and Santa Fe Dam on the San Gabriel River in California because the
area is unoccupied and of poor quality, and the recent completion of a
Flycatcher Management Plan for the proposed segment on the San Gabriel
River addresses flycatcher conservation in this segment.
Our Response: We consider this area to be occupied (see Response to
Comment 81 for more information). Additionally, although the area in
question was not occupied at the time of listing, the area is within
the geographical range of the species, has been occupied since listing,
contains the physical or biological features essential to flycatcher
conservation, and was identified in the Recovery Plan as being
essential for flycatcher recovery (see Criteria Used To Identify
Critical Habitat section above). We have reviewed the submitted
management plan and have determined that although it was effective
immediately (September 5, 2012), and there are ongoing management
actions that benefit multiple species' habitat, including the
flycatcher, there are no species-specific management actions, other
than monitoring, that currently benefit the flycatcher. Furthermore, a
regulatory benefit of inclusion exists because we anticipate a Federal
nexus (with the Corps under the Clean Water Act) for section 7
consultation for activities in this area. Designation of this area as
critical habitat would provide a benefit by providing an additional
level of review of proposed activities that might adversely modify
habitat that contains the physical or biological features essential for
the conservation of the species. Therefore, we have determined that the
benefits of including the San Gabriel River between Morris Reservoir
and Santa Fe Dam from final revised critical habitat outweigh the
benefits of excluding this area. Thus, this area is included in this
final designation of critical habitat.
Comment (103): One commenter requested an exclusion of lands
located at the Big Tujunga Wash Mitigation Area in California from
critical habitat designation because the area has been working under a
master plan since 2000, with the cooperation and knowledge of the
Service, to preserve and enhance riparian habitat.
Our Response: We appreciate the conservation that the Big Tujunga
Wash Mitigation Area has benefitted multiple species and their
habitats, including the flycatcher, and look forward to their continued
cooperation with the Service. We anticipate a Federal nexus for section
7 consultation (with the Corps under the Clean Water Act) for
activities at this mitigation site. Designation of this area as
critical habitat would provide a benefit by providing an additional
level of review of proposed activities that might adversely modify
habitat that contains the physical or biological features essential for
the conservation of the species. Also, conservation actions are likely
to continue in this area with or without critical habitat designation,
limiting the benefits of exclusion. Therefore, we determined that the
benefits of including this area from designation of critical habitat
outweigh the benefits of excluding the area. Thus, this area is
included in the final designation of critical habitat.
Comment (104): We received comments recommending we exclude the
Virgin River in Clark County, Nevada, as a result of the Clark County
MSHCP. We identified this location in our proposal as an area we were
considering for exclusion under section 4(b)(2) of the Act.
Our Response: The entire proposed Virgin River segment in Clark
County, Nevada, is within the planning area for the 30-year incidental
take permit for the Clark County MSHCP issued in 2001, to Clark County,
the cities of Clark County, and Nevada Department of Transportation.
The Clark County MSHCP permit authorized incidental take of 2 listed
species and 76 unlisted species in the event they become listed during
the permit term.
Incidental take of six riparian bird species, including the
flycatcher, was conditioned in the issuance of the Clark County MSHCP
permit because a large proportion of the species' total habitat in
Clark County is located on lands that have little or no protective
status. The Clark County MSHCP estimated 50 percent of the total
riparian habitat in the County was located on private or local
government-controlled land classified as unmanaged or managed for
multiple uses, where conservation actions specific to these areas to
ensure adequate protection for the riparian birds were not in place.
Consequently, the Service's permit conditioned incidental take of these
birds on the completion of a conservation management plan that would:
(1) Identify the management and monitoring actions needed for riparian
habitats and associated covered species along the Virgin River; and (2)
identify the acquisition of private lands in desert riparian habitats.
The total number and location of acres to be acquired was to be
identified in the conservation management plan through the MSHCP's
Adaptive Management Process and agreed to by the permittees, the land
management agencies involved in the implementation of the MSHCP, and
the Service.
In 2004, the City of Mesquite initiated development of a separate
aquatic and riparian HCP (Virgin River HCP) in response to the disposal
of approximately 4,047 ha (10,000 ac) of nearby BLM land. This HCP was
initiated because of potential effects from development of this land on
listed species associated with the Virgin River that are not included
in the Clark County MSHCP. It was anticipated by the Clark County MSHCP
permittees and the Service that completion of the Virgin River HCP
would fulfill the original intent in the Clark County MSHCP permit for
the permittees to develop a Virgin River conservation management plan.
Therefore, in order to avoid redundant planning efforts, Clark County
completed a Conservation Management Assessment in November 2008, with
Service concurrence, fulfilling their permit term and condition for
completing a conservation management plan for the Virgin River.

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This assessment focused on species in the upland areas along the Virgin
River rather than the riparian and aquatic species occurring in the
100-year floodplain of the river, as that would be the focus of the
Virgin River HCP.
The Virgin River HCP is currently under development but is not yet
completed. Therefore, conservation actions that would minimize and
mitigate impacts specific to Virgin River riparian and aquatic species
occurring in the river and its 100-year floodplain, including the
flycatcher, are not yet in place.
Additionally, while the MSHCP planning area encompasses the entire
segment of the Virgin River in Nevada, much of the riparian habitat
along this segment occurs on lands managed by entities other than the
MSHCP permittees, including the BLM, NPS, and State of Nevada. Although
these agencies are signatories to the MSHCP's Implementing Agreement,
they retain management authority and are ultimately responsible for
activities occurring on their lands and impacts associated with those
activities, such as livestock grazing and recreational activities. In
addition, other activities that negatively affect the habitat, such as
water resource development, are not covered activities under the MSHCP
and not under the jurisdiction or authority of the permittees, and
threats, such as the occurrence and spread of biocontrol agents, are
not under the control of any of the land managers or owners. Therefore,
threats to the flycatcher and its habitat not under the control,
responsibility, or authority of the MSHCP permittees remain a concern
and have yet to be addressed.
Based on the above factors, we determined that the benefits of
including this area from designation of critical habitat outweigh the
benefits of excluding the area. Thus, this area is included in the
final designation of critical habitat.
Comment (105): We received requests to exclude segments of the
Virgin River within the Overton Wildlife Management Area (WMA) in Clark
County, Nevada, and we identified this location in our proposal as an
area we were considering for exclusion under section 4(b)(2) of the
Act.
Our Response: Overton WMA is located in Clark County, Nevada, and
is managed by the NDOW. Stretches of both the Muddy River and Virgin
River run through Overton WMA. Overton WMA encompasses a wide diversity
of habitats within its 7,146 ha (17,657 ac). Approximately 20 percent
of lands comprising Overton WMA are owned by the State of Nevada, and
80 percent are lands leased from USBR and the NPS. Funding for the
operation and maintenance of Overton WMA results primarily from Federal
Aid in Wildlife Restoration Act funds (74 percent) 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 and other wetland species (16 U.S.C. 669-
669i; 50 Stat. 917).
Overton WMA lands along the Virgin River occur in an important
flycatcher breeding area known as Mormon Mesa. Other lands in this area
are managed by BLM, USBR, Clark County, and multiple private entities.
This area is undeveloped and subject to flooding events and river flows
that provide a relatively natural mosaic of habitats including cattail
marshes and riparian forest consisting of tamarisk, Gooddings willow,
and coyote willow. Due to flood events, suitable habitat and occupied
sites have shifted over the years, but all breeding sites have been
located within a 1-km (0.62-mi) wide floodplain and 6.6-km (4.1-mi)
long stretch of the river.
A management plan for Overton WMA, 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.
This plan is targeted for revision in the future. The main strategy
identified in the plan to benefit flycatcher (and other neotropical
migratory birds) along the Virgin River of Overton WMA is to maintain
and enhance dense patches of coyote willow for occupied and breeding
habitat for flycatcher. Currently, no enhancement projects have been
implemented by the NDOW at Mormon Mesa although the NDOW is in the
initial stages of developing plans with the USBR to remove tamarisk and
plant native riparian species in their place along the Virgin River of
Overton WMA.
Up until recently, natural conditions have maintained suitable
flycatcher habitat at Mormon Mesa; therefore, the NDOW has not yet
implemented projects here. Recently, impacts from the tamarisk leaf
beetle in the area has significantly reduced suitable flycatcher
breeding habitat. This area continues to be threatened by the
overutilization and trampling of riparian vegetation by livestock,
surface and noise disturbance from recreational activities, and water
resource development. These issues are not addressed by current
conservation efforts, minimizing the benefits of excluding the area
from critical habitat. In addition, there may be Federal involvement in
the funding of the management of the area that could provide benefits
of including the area in critical habitat.
Based on the above factors, we determined that the benefits of
including Overton WMA land (6.5 km (4.0 mi)) occurring along the Virgin
River from designation of critical habitat outweigh the benefits of
excluding the area. Thus, this area is included in the final
designation of critical habitat.

Other Comments Related to Economic Impacts and Analysis

Comment (106): One entity representing mining interests states that
any restriction or interruption imposed on water transportation and
diversions to maintain critical habitat would have a dramatic impact on
mining operations. Further, any such restrictions are attributable
solely to the designation of critical habitat.
Our Response: Nearly all of the mining sites located in or near
proposed critical habitat are in areas occupied by the flycatcher where
Federal agencies are already aware of the presence of the species.
Thus, any future section 7 consultations related to the mining
operations would occur regardless of whether critical habitat is
designated. Furthermore, as described in the Service's memorandum
provided in Appendix C of the draft economic analysis, project
modifications likely to be requested to avoid adverse modification are
likely to be similar to modifications requested to avoid jeopardy.
Thus, the incremental effects of the designation in these cases are
likely to be limited to minor administrative costs.
One exception is the Morenci Mine in the San Francisco Management
Unit. The flycatcher occupies this unit; however, the area was not
previously proposed for critical habitat designation, and there is no
history of formal section 7 consultation in the area. Thus, we assume
the designation would increase the awareness of Federal agencies of the
need to consider impacts to flycatcher, and future section 7
consultations would be attributable to the designation.
This site is located 11 km (7 mi) southwest of proposed critical
habitat; thus, consultation would be required if a Federal action
occurs and a hydrologic link is established showing an effect on the
flycatcher or its critical habitat. As described in paragraphs 570
through 571 of the draft economic analysis, we lack the specific data
and models to determine how streamflow in proposed critical habitat may
be affected. This site is discussed in greater detail in

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paragraphs 587 through 589 of the draft economic analysis.
In addition, two of the potential mine sites identified in exhibit
9-1 of the draft economic analysis area are located in unoccupied areas
where impacts would be considered incremental to the designation. The
first, located in the Powell Management Unit in Utah, is listed as an
``occurrence,'' suggesting it is not an active mine. The second,
located in the Santa Clara Management Unit, was identified as an active
sand and gravel mine in 2005 by USGS, but was not found in the State of
California's online database of mines. Thus, this site may also be
inactive. As discussed in paragraph 571 of the draft economic analysis,
sand and gravel operations do not utilize large volumes of surface
water and, although they may disturb habitat over relatively small
areas, are unlikely to pose a major threat to the species.
Comment (107): One entity representing mining interests states that
the rationale presented in the draft economic analysis for why it is
difficult to predict potential constraints on water use to accommodate
flycatcher concerns is flawed, and the mere identification of at-risk
commodities is an irrelevant exercise absent quantification of those
impacts.
Our Response: The Service respectfully disagrees that potential
effects on water use related to mining operations is predictable and
easily modeled. As stated in paragraph 571 of the draft economic
analysis, hydrological models explaining the relationship between
groundwater pumping and surface water diversions and flycatcher habitat
health are not readily available. In the absence of such models,
information about the resources potentially affected is useful to the
decisionmaker. Furthermore, as summarized at the end of Chapter 9 of
the draft economic analysis, of the identified mines that have
previously raised concerns about proposed critical habitat for the
flycatcher, all but one are located in areas where section 7
consultations would be undertaken due to the presence of the listed
species absent designated critical habitat.
Comment (108): One entity representing mining interests states that
the court decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), amended by 387
F.3d 968 (9th Cir. 2004), ``raises the bar'' in terms of the potential
impacts of critical habitat because an activity that does not
jeopardize the species' continued survival nevertheless may be
prohibited because it will adversely modify critical habitat. In the
draft economic analysis, the Service, therefore, should not rely on
consultations on mining activities that were undertaken prior to the
Gifford Pinchot ruling as evidence of potential future impacts.
Our Response: Prior consultations provide evidence of the types of
project modifications that may be requested to avoid jeopardizing the
species. As the Gifford Pinchot court decision did not affect the
definition of ``jeopardy,'' the historical record remains informative.
The Service's memorandum in Appendix C of the draft economic analysis
provides its rational for determining that, in the case of the
flycatcher, additional project modifications are unlikely in most
circumstances to be requested to avoid adverse modification.
Comment (109): One entity representing mining interests states that
the draft economic analysis assesses the likelihood of future impacts
to mining resulting from the designation by limiting the analysis to
mines located directly within critical habitat. Limiting the analysis
this way allows the Service to bolster its determination that the
likelihood of future impact to the mining industry is low.
Our Response: Paragraphs 574 through 594 of the draft economic
analysis describe mining operations located outside of proposed
critical habitat that may affect the habitat (see summary in exhibit 9-
2).
Comment (110): A commenter states that the economic analysis of
impacts to the mining industry is inadequate and fails to include the
Rosemont Mine. The commenter provides information on the economic
importance of the Rosemont Mine to the State of Arizona.
Our Response: The draft economic analysis is unable to quantify
economic impacts to the mining industry in Chapter 9 because of the
uncertainty over how future water withdrawals may affect the flycatcher
and its habitat. However, the draft economic analysis provides
qualitative information regarding potential impacts to the mining
industry. Because the Rosemont Mine is currently in the permitting
process and is not yet active, it is difficult to forecast the
potential impacts of critical habitat designation. The proposed mine
site lies approximately 48 km (30 mi) southeast of Tucson along the
Santa Rita Mountains, and is approximately 16 km (10 mi) west of
proposed critical habitat in Cienega Creek. Chapter 9 of the draft
economic analysis has been revised to include information on the
Rosemont Mine.
Comment (111): A commenter provides a copy of FMC's Lower Pinal
Creek Riparian Management and Monitoring Plan. This management plan
addresses conservation of flycatcher habitat at FMC's Miami Mine and
adjacent land in Gila County, Arizona.
Response: Chapter 9 of the draft economic analysis has been revised
to reference FMC's Lower Pinal Creek Riparian Management and Monitoring
Plan.
Comment (112): Catron County, New Mexico, is concerned that the
critical habitat revision will place unnecessary burden and constraints
on proposed Arizona Water Settlement Act projects. Specifically, they
are concerned about the implementation of projects to improve
irrigation ditches and stabilize stream channels along the San
Francisco River near the Towns of Alma and Luna, New Mexico. Catron
County is also concerned that historic use of irrigation water from San
Francisco River will be prohibited by court order or by cost, and that
this is a potential indirect unrecognized takings issue.
Our Response: Projects under the Arizona Water Settlement Act and
other federally funded projects occurring along the San Francisco River
will require evaluation of not only the flycatcher, but other federally
listed species such as loach minnow (Tiaroga cobitis) and spikedace
(Meda fulgida) under the Act. We have worked successfully on other
stream projects in this area to minimize impacts to federally listed
species and also meet project needs. We anticipate that with the mutual
cooperation and collaboration of stakeholders, action agencies, and the
Service, the revision of critical habitat will not add additional
burdens.
Comment (113): The Elephant Butte Irrigation District primarily
seeks protection of the water supply it administers and the water
rights of its members against the effects that could be imposed under
the Act; the District also seeks protection against any disruption of
their system and seeks assurance that the Act will not be used to gain
a higher allocation for environmental water in times of drought.
Our Response: The Elephant Butte Irrigation District would be
covered under the International Boundary Water Commission's section 7
biological opinion for the water transaction network that is being
developed to provide water to flycatcher restoration sites. The Service
expects only that the obligations within the biological opinion for
their Canalization Project be met, and nothing further is expected to

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be required. Our section 7 consultation included a conference on
critical habitat. In addition, the proposed area in the Lower Rio
Grande is excluded from the final designation (see Exclusions).
Comment (114): A group of entities state that the economic analysis
incorrectly indicates that Seven Oaks Dam is covered under the Western
Riverside County MSHCP. The entities argue that, because the dam does
not fall under this MSHCP, the $43 million in estimated impacts to its
operations should be attributed to the incremental rather than baseline
scenario.
Our Response: The final economic analysis has been revised to
clarify that operation of Seven Oaks Dam is not covered by the MSHCP.
Nonetheless, impacts to operations at this dam are considered baseline.
As the comment correctly points out, baseline impacts occur in those
areas where flycatcher territories have been detected and where
flycatcher presence is well known. Flycatcher presence is assumed to be
well known within the vicinity of Seven Oaks Dam for the following
reasons: (1) Flycatcher territories have been detected along the Santa
Ana River segment; (2) critical habitat for flycatcher was designated
in areas immediately upstream of the dam in 2005; (3) San Bernardino
Valley Municipal Water District and Western Municipal Water District's
May 2007 presentation to the California State Water Resources Control
Board discusses critical habitat for flycatcher upstream of the dam;
(4) the decision awarding the San Bernardino Valley Municipal Water
District and Western Municipal Water District the water rights to
implement the Supplemental Water Project specifically includes
mitigation measures for flycatcher, as well as an explicit statement
that ``habitat on the perimeter of the desiccation area will continue
to provide habitat for the endangered southwestern willow flycatcher'';
and (5) the agencies are required to develop a MSHCP for the
supplemental water project under the terms of the decision awarding
them the water rights. Based on this information, the proposal does not
appear to provide new information about the presence of flycatcher in
these areas. Therefore, the analysis continues to attribute these
impacts to the baseline scenario.
Comment (115): A group of commenters state that the analysis did
not fully analyze potential costs associated with the loss of local
water supplies, restricted development, and potential flood damage on
the Santa Ana River. In particular, these commenters are concerned
about potential changes in operation and maintenance of Seven Oaks Dam
and maintenance of the Santa Ana River levees. One entity also
expressed concern that the costs of consultations associated with the
maintenance of the levees were not included in the draft economic
analysis.
Our Response: With regard to flood control, the Act does not expect
species conservation to take precedence over protection of human life
or property. For example, section 7(p) of the Act, concerning
Presidentially declared disaster areas, allows for emergency actions to
be taken without section 7 consultation in the event of an ``emergency
situation which does not allow the ordinary procedures of this section
to be followed.'' Likewise, routine maintenance required to ensure the
proper functioning of levees would not be prohibited. Therefore,
economic impacts that potentially could result from a catastrophic
flood event, such as loss of life or property value, are not quantified
because management actions to prevent catastrophic flooding are not
expected to be precluded due to designation of critical habitat for the
flycatcher. We have included additional text in the final economic
analysis discussing the potential for economic impacts associated with
flood control activities.
With regard to a potential loss in water supplies, the final
economic analysis has been revised to acknowledge the concerns about
the potential impact of flycatcher critical habitat on the Supplemental
Water Project at Seven Oaks Dam, recognizing that impacts could be
significant in the event that critical habitat precludes the
development of this project. That said, there have been multiple court
decisions where Federal agencies have successfully argued that they
lack the discretion to release water to address concerns under the Act.
In other cases, courts have upheld the use of off-site mitigation while
allowing USBR to raise the level of the lake above existing flycatcher
habitat. Based on these court decisions, the analysis considers it
highly unlikely that the designation of critical habitat for the
flycatcher will result in the release of water or the loss of water
supplies at Seven Oaks Dam.
Given that the presence of the flycatcher or its critical habitat
is not expected to affect the availability of water stored at Seven
Oaks Dam, future lost development due to a lack of available water is
unlikely. With respect to development, the draft economic analysis
estimates four types of costs to potential projects occurring in
critical habitat: Consultation costs; lost land value associated with
land set-asides that may be required for projects in critical habitat;
costs of implementing additional project modifications, such as cowbird
trapping; and potential time delay impacts related to the need to
comply with CEQA requirements. Due to a high level of baseline
restrictions to development in the floodplain, this analysis limits
development impacts to areas where population density is high, and the
availability of substitute land is low. Most of these are urbanized
areas in California units. In sum, the estimated impacts to development
are approximately $51 million over a 20-year period of time, with the
most substantial category of costs being lost land values, totaling
over $35 million. Estimated impacts in the Santa Ana Management Unit
are $18 million, of which $13 million are associated with land set-
asides. The majority of all costs, however, are attributed to the
baseline, as flycatcher presence in areas subject to development in the
floodplain is well known and critical habitat impacts are not expected
to differ greatly from those expected under the listing alone.
Comment (116): One commenter submitted an analysis that identifies
and estimates the economic impacts that would be incurred in Kern
County, California, if Isabella Reservoir Operations were changed to
avoid adversely modifying proposed critical habitat for flycatcher.
Our Response: The final economic analysis now includes, in Chapter
3, a summary of the analysis provided by the commenter, which
acknowledges the potential economic impacts of changing water
operations at Lake Isabella Reservoir. However, as stated in Chapter 3,
due to the known presence of the flycatcher, extensive consultation
history on the species, and existence of a completed section 7
consultation for the operations at Lake Isabella Reservoir in which the
Corps purchased nearby property for flycatcher conservation to reduce
and minimize impacts in lieu of modifying its operations, the analysis
finds that the likelihood of future modifications to Lake Isabella
Reservoir Operations to accommodate flycatcher and its habitat is very
low.
Comment (117): Several commenters expressed concern that the
economic analysis did not adequately address potential impacts of
critical habitat designation for flycatcher on operations at Elephant
Butte Reservoir and planned activities on the Lower Rio Grande.
Commenters requested that potential impacts on the Elephant Butte Pilot
Project, environmental water transactions program, and Rio Grande
Canalization project should be

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considered. One commenter states that the incremental analysis is
incomplete and inaccurate through omission of the direct, indirect, and
induced costs associated with the many effects a critical habitat
designation in Elephant Butte Reservoir may have on water operations in
New Mexico.
Our Response: The draft economic analysis in Chapter 3 has been
revised to more fully incorporate a discussion about planned and
ongoing actions, conservation efforts, and potential impacts at
Elephant Butte Reservoir and in the Lower Rio Grande Management Unit.
Comment (118): One commenter states that the draft economic
analysis does not address costs associated with releases from Morris
Reservoir, which are also necessary for the aquifer recharge operations
at the San Gabriel Canyon Spreading Grounds and the San Gabriel River
unit. The commenter states that the Watermaster and County documented
reasonably foreseeable costs associated with the designation of
critical habitat for flycatcher in the San Gabriel River unit, which
have been improperly excluded from the draft economic analysis. The
draft economic analysis may not have considered costs related to lower
volumes of water associated with restriction on dam releases and
decreases in instream percolation. The draft economic analysis did not
include post-fire and subsequent periodic sediment removal projects at
Big Tujunga and Morris Reservoirs.
Our Response: While the draft economic analysis was correct in
stating that the Santa Fe Dam is the only water management facility
within the proposed critical habitat area along the San Gabriel River,
the final economic analysis in Chapter 3 has been revised to more fully
incorporate a discussion about potential impacts to the San Gabriel
River system, including operations at Cogswell, San Gabriel, and Morris
Dam/reservoirs. The previous estimates of costs provided for San
Gabriel River unit from this commenter were developed for the Santa Ana
sucker and predicated on the assumption that sediment removal projects
at upstream dams would be precluded. However we have no evidence to
suggest that such measures would be relevant to the downstream proposed
critical habitat for the flycatcher. Nonetheless, we have included a
description of past and potential future costs associated with Santa
Ana sucker management activities, as estimated by the Service's
economic analysis, in this unit. Because flycatcher presence is well-
known, and the species is currently managed for in this unit,
management actions for the flycatcher associated with this unit are
considered to be baseline.
Comment (119): Several comments state that the economic analysis
does not adequately address the impact of flycatcher critical habitat
on agricultural activities. One comment states that the economic
consequences of reduced water availability for agriculture caused by
critical habitat designation would cause detrimental impacts to local
communities in New Mexico. One commenter states that the economic
analysis does not adequately address the impacts of critical habitat
designation on farming operations related to impacts to delay or denial
of a Federal loan or other Federal assistance. Two commenters state
that the economic analysis fails to address potential impacts to the
San Carlos Irrigation and Drainage District.
Our Response: Chapter 4 of the economic analysis describes and
quantifies potential impacts on ranching activities. A section has been
included in Chapter 3 of the final economic analysis to specifically
address potential impacts to crop agriculture. As stated in the
analysis, irrigators that utilize surface water could be affected by
critical habitat designation if reservoir operations that provide water
for irrigation are modified such that less water is available for
irrigation. Reductions in available water to water districts could
result in corresponding reductions in irrigated crop acres for end
users, if farmers are unable to switch to less water-intensive crops or
find substitute water sources. 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, the analysis
finds that future modifications to the operations of reservoirs to
avoid adverse modification of critical habitat for flycatcher are
unlikely. Therefore, the impacts of critical habitat designation on
irrigators are also unlikely as a result of critical habitat
designation. Instead, the analysis finds that a more likely scenario is
that habitat mitigation and other conservation efforts will be
undertaken. The expected conservation efforts are not expected to
affect water deliveries.
The quantified impacts also do not include potential losses in
Federal Natural Resource Conservation Service and Farm Service Agency
funding. Agricultural activities on private lands may be supported by
voluntary participation in a number of programs sponsored by Federal
agencies, including the Natural Resource Conservation Service and the
Farm Service Agency. These agencies provide funding and technical
assistance for agriculture-related activities. It is possible that,
fearing that receiving Federal funding would potentially require them
to bear the burden of maintaining fish habitat, irrigators could
decline participation in Federal programs. Natural Resource
Conservation Service staff state that if that were to occur, funds not
allocated within proposed critical habitat would likely be reallocated
within the State, and the Natural Resource Conservation Service
questions the assumption that farmers would refuse funding to avoid a
Federal nexus, particularly as its awards typically go to farmers who
wish to promote conservation. As a result, these potential impacts are
not included in estimated costs.
Comment (120): One commenter states that the economic analysis is
void of any impacts assessment related to current and projected
agricultural, municipal, and industrial water uses within the
watersheds of each critical habitat unit. Specifically, the analysis of
impacts in the Verde Management Unit fails to mention any potential
impacts from municipal water use projects, agriculture, and other
anticipated residential development in that watershed.
Our Response: Chapter 3 of the final economic analysis has been
revised to more directly discuss potential impacts to crop agriculture
and urban water uses. Municipal water projects in the Verde Management
Unit are specifically addressed.
With respect to residential and related development, section 5.2.3
of the draft economic analysis contains a discussion of projected
residential development in the Verde Management Unit. Specifically, one
consultation is forecast related to the construction of a wastewater
treatment plant for the City of Cottonwood. This section also describes
the history of the Verde Valley Ranch Development at Peck's Lake, in an
area owned by FMC. The draft economic analysis concludes that
development on this land is not viable, due to a remanded National
Pollutant Discharge Elimination System permit, and land use objectives
of the local planning department.
Comment (121): One commenter states that the analysis of economic
impacts must include all current and potential water withdrawals and
land uses that may affect critical habitat, regardless of whether they
are within critical habitat. The commenter states that the scope of the
economic analysis is limited to the activities occurring

[[Page 490]]

within the proposed critical habitat, though critical habitat can be
deemed to affect water uses that take many miles from critical habitat.
Limiting the scope of analysis to certain types of water management
activities occurring within or immediately adjacent to critical habitat
dramatically understates the impact of critical habitat, rendering the
economic analysis useless in informing decision making.
Our Response: The economic analysis must use the best available
information to assess potential impacts to critical habitat
designation, whether or not those impacts are generated from within the
designation. The draft economic analysis does address potential water
management issues related to water management structures and actions
located upstream of proposed critical habitat units (e.g., the San
Gabriel River Unit and Lower Rio Grande Units). However, because the
analysis does not anticipate that changes to water operations are
likely to occur as a result of critical habitat designation for the
flycatcher, few impacts to downstream users are anticipated. The final
economic analysis now includes a discussion of potential impacts to
groundwater users in several major irrigation districts with
connections to proposed critical habitat areas. The final economic
analysis also now includes a discussion of potential impacts to crop
irrigation, flood control, and hydropower facilities that have the
potential to be affected by critical habitat for flycatcher.
Comment (122): One comment states that the proposed critical
habitat will inhibit public agencies from providing and maintaining
safe passage of perennial and large flood flows through communities
with large urban populations. The economic analysis should consider
that critical habitat for flycatcher could result in decreased flood
protection from dam operation and channel maintenance restrictions,
increased channel costs associated with mitigation requirements, and
constrained construction windows from nesting season restrictions and
lost access to water in Los Angeles County. The commenter states that
many reaches in Los Angeles County are within active, engineered, flood
protection facilities or downstream of flood protection dams and
reservoirs.
Our Response: Chapter 3 of the economic analysis has been revised
to specifically discuss potential impacts of critical habitat
designation on flood control projects. In the past, flood control
projects in flycatcher habitat areas have generally resulted in habitat
mitigation off-site, rather than in changing operations and maintenance
of facilities (e.g., vegetative clearing schedules). One exception is
the San Luis Rey Flood Control Project, where changes in vegetative
clearing activities were altered to accommodate flycatcher concerns
during section 7 consultation involving critical habitat, which has
resulted in a reduction in flood control capacity of the project from
270 years to approximately 100 years. However, no flood damages have
resulted from this change to date, and the Service is currently in
ongoing discussions with the Corps in an attempt to reach an agreement
that allows the project to reach the 270-year flood control projection
as originally proposed. Further, the Act does not expect species
conservation to take precedence over protection of human life or
property (see section 7(p) of the Act).
Comment (123): Designation of proposed critical habitat for
flycatcher may inhibit Metropolitan Water District's ability to provide
water to its 26 member agencies by restricting access to its right-of-
ways, including access roads that it uses for routine operations,
maintenance, and repairs. Ongoing projects include replacement and
rebuilding of siphon transition structures and blow-off valves.
Our Response: The draft economic analysis in Chapter 3 has been
revised to acknowledge overlap with Metropolitan Water District
properties in the proposed Santa Clara River, Big Tujunga Creek, San
Gabriel River, Waterman Creek, Santa Ana River, and San Timoteo Creek
units. Flycatcher presence is well-known or the species is otherwise
currently managed for in all of these units, except for Big Tujunga
Canyon, which is unoccupied. A previous economic analysis for the Santa
Ana sucker anticipated that the Metropolitan Water District may prepare
an HCP for that species related to its ongoing operations. While it is
unclear whether a permit or Federal nexus would exist for many
Metropolitan efforts, it is possible that a nexus could occur for some
actions. To the extent that Metropolitan expects only to conduct work
on existing facilities, those facilities would not be considered
critical habitat and would not require conservation efforts.
Metropolitan's ability to provide water to its member agencies is not
anticipated to be affected by critical habitat designation. Impacts
related to administrative or other conservation efforts in the Big
Tujunga Canyon segment would be attributed to the designation of
critical habitat. Lands owned by Metropolitan in the Big Tujunga
segment were included in the analysis as part of lands conducting
``residential and related development activities'' in Chapter 5 of the
economic analysis. Costs estimates for these lands include
administrative costs related to potential future consultations, as well
as project modifications that were estimated on a per consultation
basis.
Comment (124): The Service failed to consider in its identification
of the economic benefits of excluding areas the economic benefit of
maintaining the local water supply and the present levels of flood
protection for heavily populated areas such as Los Angeles County. The
Service has not consulted the District or stakeholders in Los Angeles
County in its preparation of the draft economic analysis of the
proposed designation.
Response: Due to the broad area included in this critical habitat
designation, some parties were not contacted directly. However, through
mailing lists, press releases, and other sources, we believe that our
outreach efforts were sufficient. The Service received two comment
letters from the Los Angeles Department of Public Works and a letter
from Metropolitan Water District of Southern California. Substantial
edits were made to the economic analysis as a result of these and other
public comments; we have no data indicating that designating critical
habitat would have significant impacts on human health and safety.
Comment (125): The proposed designation is multi-generational in
nature, which, according to Circular A-4, lends itself to a lower
discount rate of 1 to 2 percent.
Our Response: The commenting entity is correct that lower discount
rates may be appropriate where inter-generational impacts are likely to
occur. However, we generally do not forecast impacts beyond a 20- to
30-year time period (with the exception of four dam projects where
baseline costs extend 50 years into the future). Thus, we apply the
OMB's recommended discount rate of 7 percent and test the sensitivity
of this rate using a rate of 3 percent.
Comment (126): One entity states that the proposed designation of
critical habitat threatens the financial viability of the Cherry Creek
Cattle Company operation, which holds a grazing permit on the Dagger
Allotment in the Tonto National Forest. The designation of critical
habitat is expected to place a significant economic burden on this
operation.
Our Response: The Dagger Allotment is located on the Salt River
within the Roosevelt Management Unit and is considered occupied by the
flycatcher. Exhibit 2-3 of the draft economic analysis identifies this
stream segment

[[Page 491]]

as unlikely to have incremental economic impacts, except for the
portion of administrative costs to address adverse modification in
section 7 consultation, as a result of the species occupancy and public
awareness. As a result, all costs associated with conservation efforts
for grazing activities are considered baseline impacts that result from
the listing of the species and not the designation of critical habitat.
On page A-9 of the draft economic analysis, the Small Business Impacts
Analysis estimates annualized incremental administrative impacts of
approximately $480 per grazing entity. This translates to 1.21 percent
of average annual revenues per grazing entity.
Comment (127): One entity provides information on the management of
ranching and agricultural lands on the privately owned Rancho Temescal.
In particular, this comment states that Rancho Temescal is in the
process of developing a safe harbor agreement with the Service. This
comment also expresses concern over the regulatory burden to Rancho
Temescal that would result from the designation of critical habitat.
Our Response: The draft economic analysis generally estimates costs
associated with grazing on Federal lands only, due to the lack of a
Federal nexus for section 7 consultation on private ranching lands.
However, text has been added describing this pursuit of a safe harbor
agreement and potential associated costs.
Comment (128): One organization states that grazing operations
should be considered small entities, and the draft economic analysis
should estimate the overall effect on the community of grazing
restrictions. This comment estimates annual economic losses of $2.8
million to Gila County associated with preclusion of grazing on six
allotments.
Our Response: Section 4.6 of the draft economic analysis estimates
regional economic impacts associated with grazing restrictions. For the
Roosevelt Management Unit, where the allotments mentioned by the
organization are located, all regional impacts associated with grazing
restrictions are considered baseline impacts; that is, these impacts
may occur even absent the designation of critical habitat. These
baseline regional economic impacts are estimated to be $56,000
annually, as shown in exhibit 4-13 of the draft economic analysis. In
contrast to the analysis provided in the comment, the draft economic
analysis does not assume that all grazing will be precluded. Instead,
the draft economic analysis assumes grazing restrictions will be
proportional to the acres of each allotment located within proposed
critical habitat. Additionally, the draft economic analysis considers
costs to grazing entities in the Small Business Impacts Analysis
presented in Appendix A. Pages A-10 through A-13 of the draft economic
analysis describe the analysis of impacts to small grazing entities.
Comment (129): Two entities state generally that significant
economic impacts to grazing and agricultural operations are likely.
This comment also expresses concern that economic impacts cannot be
adequately evaluated due to uncertainty over the conservation efforts
likely to be requested following the designation of critical habitat.
Our Response: Sections 2.3 and 4.2 of the draft economic analysis
describe the types of incremental impacts expected to occur following
the designation of critical habitat. Specifically, the draft economic
analysis considers project modification costs associated with grazing
reductions, fencing construction and maintenance, and cowbird trapping,
and the administrative impacts of section 7 consultation. Pages A-10
through A-13 of the draft economic analysis describe the analysis of
impacts to small grazing entities. Exhibit A-3 of the draft economic
analysis presents the results of the Small Business Impacts Analysis,
which estimates annualized incremental administrative impacts of
approximately $480 per grazing entity. This translates to 1.21 percent
of average annual revenues per grazing entity.
Impacts to agricultural operations would occur if changes in the
management of water operations affect the availability of water for
farming activities. For additional discussion of such impacts, see our
responses to specific comments on water management activities, such as
reservoirs, irrigation districts, groundwater pumping, and flood
control activities.
Comment (130): Newhall Land and Farming provided updated
information regarding existing easements and preservation agreements,
including identification of a new area of private floodplain ownership
in proposed critical habitat which will be placed in a restrictive
covenant for floodplain conservation.
Our Response: Section 5.2.3 of the draft economic analysis has been
updated to reflect the addition of Newhall's land holdings to areas
considered for exclusion in the revised proposed rule (77 FR 41147,
July 12, 2012). The final economic analysis also reflects new acreage
estimates of Newhall land ownership and management in the Santa Clara
Management Unit with respect to the potential for development in that
area. Please see response to Comment 100 above for discussion of
Newhall Land and Farming areas that were excluded from the final
designation of critical habitat.
Comment (131): The Foothills-Eastern and San Joaquin Hills
Transportation Corridor Agencies believe that the draft economic
analysis improperly excludes the State Road 241 Completion Project from
consideration of economic impacts resulting from the proposed rule. The
Service's claim that the project is not viable is outdated and is based
on inaccurate information. As such, the draft economic analysis should
evaluate the costs associated with the project modifications and
alternatives in the recent planning documents.
Our Response: We have updated the discussion of the State Road 241
Completion Project found at paragraphs 496 through 498 of the draft
economic analysis to include additional information provided by these
agencies regarding their progress towards identifying a viable
alternative. In addition, we have included in that discussion
information provided by these agencies regarding the potential cost of
future section 7 consultations considering the flycatcher and its
habitat.
Comment (132): An estimate of impacts associated with the State
Road 241 Completion Project provided previously by the Foothills-
Eastern and San Joaquin Hills Transportation Corridor Agencies was
inappropriately excluded from the draft economic analysis based on the
assumption that the subunit would be excluded from the final rule.
Our Response: The Transportation Corridor Agencies are correct that
the Service should estimate the impacts of areas proposed for exclusion
from critical habitat designation under section 4(b)(2) of the Act in
order to provide information regarding the potential avoided costs, or
benefits of exclusion. However, in this case, the Transportation
Corridor Agencies' information regarding potential costs were not
excluded from the draft economic analysis because the subunit was
considered for exclusion. Rather, as stated in the draft economic
analysis (section 7.5, paragraphs 496 through 498), costs were not
assessed for the Transportation Corridor Agencies' project due to the
fact that the project was not considered likely to occur within the
period of the analysis. This

[[Page 492]]

section has been updated to include additional information regarding
continued efforts to identify and receive approval for an alternative
route. Potential costs identified by the Transportation Corridor
Agencies are discussed, but are not added to the total impacts in that
subunit, due to the remaining significant uncertainty regarding the
likelihood of the project.
Comment (133): The draft economic analysis fails to use the Tenth
Circuit co-extensive impacts methodology to evaluate the proposed
rule's economic impacts and instead adopts the incremental approach for
the draft economic analysis.
Our Response: As described in Chapter 2 of the draft economic
analysis, we separately estimate both the baseline and incremental
costs of the proposed rule. The co-extensive costs of the proposed
rulemaking are simply the sum of both estimates. The draft economic
analysis is therefore in compliance with the Tenth Circuit Court of
Appeals decision per New Mexico Cattlegrowers Assn. v. U.S. Fish and
Wildlife Service, 248 F.3d 1277 (10th Cir. 2001).
Comment (134): The draft economic analysis does not include an
evaluation of the cumulative impact of multiple critical habitat
designations, as required by well-established principals of Federal
environmental laws such as NEPA. Critical habitat for arroyo toad and
thread-leaved brodiaea (Brodiaea filifolia) occur in the same area. In
addition, one commenter stated that although some land owned or
maintained by the San Bernardino County Flood Control District may be
occupied by other Federally listed species, the extra ``layer'' of
regulation associated with the designation of critical habitat for the
flycatcher will create an additional economic burden for the District
to assess and perform routine maintenance because of mitigation
requirements.
Our Response: The OMB guidelines for best practices concerning the
conduct of economic analysis of Federal regulations (Circular A-4)
direct agencies to measure the costs of a regulatory action against a
baseline, which it defines as the ``best assessment of the way the
world would look absent the proposed action.'' The baseline utilized in
the draft economic analysis is the existing state of regulation, prior
to the designation of critical habitat, which provides protection to
the species under the Act, as well as under other Federal, State, and
local laws and guidelines. To characterize the ``world without critical
habitat,'' the draft economic analysis also endeavors to forecast these
conditions into the future over the time frame of the analysis,
recognizing that such projections are subject to uncertainty. This
baseline projection recognizes that flycatcher habitat is already
subject to a variety of Federal, State, and local protections
regardless of the designation of critical habitat.
Throughout the draft economic analysis, we provide information
about the cost of actions that provide baseline protection to the
habitat. This information provides context to the decision-maker
regarding the regulatory environment, and, in many cases,
quantification of the baseline includes joint costs benefiting multiple
species. For example, baseline efforts include the implementation of
multiple-species HCPs benefiting dozens of listed species, or the
completion of section 7 consultations addressing multiple species.
While we focus on costs associated specifically with flycatcher, many
of these joint costs (e.g., the administrative effort associated with a
section 7 consultation) are not easily separable by species. Thus, in
order to avoid undercounting costs attributable to flycatcher and its
habitat, our cost estimates likely include some impacts that also
benefit other species.
Comment (135): Several private landowners state that the
designation of critical habitat would adversely affect local
communities and successful ongoing land and wildlife management. The
designation of critical habitat has the potential to interfere with
vested water rights in the Salt River watershed, undermine existing
collaborative management efforts, further limit the land base in Gila
County, and impose additional economic costs associated with section 7
consultation, particularly in the context of livestock grazing
operations.
Our Response: The draft economic analysis addresses impacts to
livestock grazing in Chapter 4 and impacts on water rights in Chapter
3. This analysis estimates costs associated with grazing on Federal
lands only, due to the lack of a Federal nexus for section 7
consultation on private lands. Incremental impacts associated with
section 7 consultation, additional conservation efforts, and regional
economic effects are estimated in this chapter. Potential impacts
associated with the Salt River Project are also discussed in detail in
Chapter 3 of the draft economic analysis.
Comment (136): In its analysis under Executive Order 13211, the
Service stated that the proposed critical habitat designation will not
significantly affect energy supplies, distribution or use because there
are no pipelines, distribution facilities, power grid stations, and
other such energy infrastructure within the boundaries of the proposed
critical habitat areas. This assertion is not correct because the areas
proposed for critical habitat designation include proposed power lines
and three hydroelectric power generation stations. The commenter goes
on to assert that the Service's proposal to restrict dam operations
will impact water delivery to these hydroelectric facilities;
therefore, the role of hydroelectric facilities and thus impacts to
them become more significant.
Response: As discussed above in previous responses, we do not
anticipate that flycatcher conservation efforts will result in changes
in dam operations beyond those conservation activities outlined in an
incidental take permit. In the past, such activities have focused on
habitat mitigation in lieu of changes to operations. Section A.2 of the
draft economic analysis specifically addresses Executive Order 13211
and explains that we do not anticipate any changes in the timing or
amount of water spilled at dams with the capacity to produce
hydropower. Thus, the designation of critical habitat is unlikely to
affect energy supply. The discussion of Executive Order 13211 has also
been updated appropriately (see Energy Supply, Distribution, or Use--
Executive Order 13211).
Comment (137): The Service's proposal to have dam operations return
to ``more natural hydrologic regimes'' will, if imposed on storm
operations, result in a return to the significant flooding conditions
(which did result in fatalities) that necessitated the construction of
the dams in the first place. This in turn will have a significant
adverse impact to the residents' quality of life and the region's
ability to keep jobs at a time when unemployment in Los Angeles County
is at 12.5 percent. Further, the Service's proposed restrictions on
water supply in the proposed Big Tujunga unit may not be possible as
the City of Los Angeles' water rights in the Big Tujunga area are
``pueblo rights,'' that were granted under international treaty, and
the Act cannot trump international treaties.
Our Response: As discussed above, we do not anticipate that
flycatcher conservation efforts will result in changes in dam
operations beyond those conservation activities outlined in an
incidental take permit. In the past, such activities have focused on
habitat mitigation in lieu of changes to operations. Furthermore, with
regard to flood control, the Act does not expect species conservation
to take precedence

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over protection of human life or property. For example, section 7(p) of
the Act, concerning Presidentially declared disaster areas, allows for
emergency actions to be taken without section 7 consultation in the
event of an ``emergency situation which does not allow the ordinary
procedures of this section to be followed.'' Likewise, routine
maintenance will not be prohibited. Therefore, economic impacts that
potentially could result from a catastrophic flood event, such as loss
of life or property value, are not quantified because management
actions to prevent catastrophic flooding are not expected to be
precluded due to designation of critical habitat for the flycatcher. We
have included additional text in the final economic analysis discussing
the potential for economic impacts associated with flood control
activities.
Furthermore, the Service does not propose to restrict water supply
in the Big Tujunga subunit. As discussed in detail in previous
responses, historically, flycatcher concerns have been addressed
through mitigation, rather than changes to water operations.
Comment (138): The proposed designation warrants review and a
determination of significance by the OMB because: (1) Potential flood
damage to properties in any given year due to the Service's proposed
restrictions on dam operations and facility maintenance, combined with
the potential loss of groundwater available for pumping due to the
Service's proposed pumping restrictions will result in significant
economic impacts to Los Angeles County; and (2) proposed restrictions
on nonnative vegetation removal and maintenance of flood protection
facilities do conflict with other Federal agencies' actions by
conflicting with mitigation requirements imposed by Federal permits
issued to the District and the maintenance activities of the Corps in
Big Tujunga Wash, Hansen Flood Control basin, San Gabriel River, and
Santa Fe Flood Control Basin.
Response: The economic impacts of the proposed critical habitat
designation are estimated and reported in the final economic analysis.
The estimate of annualized costs range from less than $1 million to
$1.7 million. The designation will not result in an annual effect of
$100 million or more on the economy, therefore, this rule is not
considered an economically significant rule. We do not anticipate that
the flood protection capabilities of water structures located in
designated critical habitat will be affected by the regulation for the
reasons discussed in previous responses. Thus, the rule is unlikely to
conflict with mitigation requirements imposed on flood control projects
by the other Federal agencies (see discussion in section 3.2.4 of the
final economic analysis).
Comment (139): The Service states that no regulatory flexibility
analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is
required if the proposed critical habitat designation will not impact a
substantial number of small entities (i.e., small businesses, small
organizations, and small government jurisdictions). The Service's
proposed restrictions on dam operations and flood protection facility
maintenance have consequences to communities near and far downstream of
the proposed critical habitat areas in Los Angeles County. A
substantial number of small entities depend on the flood protection
facilities that are potentially impacted by the proposed critical
habitat designation because they get their water supply from the
groundwater basins in which the proposed critical habitat areas for Los
Angeles County are located. The Service's proposal will increase these
small entities' exposure to flood hazards and their access to their
water supply. The Service needs to comply with the Regulatory
Flexibility Act and conduct a regulatory flexibility analysis of the
proposed critical habitat designation. The analysis should include the
cumulative impact of other Act listings and critical habitat
designations in Los Angeles County and in the areas in which the region
gets its imported water. The Service also needs to consult local flood
protection, water supply and business entities, not solely litigious
environmental groups, while conducting this analysis.
Response: As discussed in response to prior comments, we do not
anticipate that the proposed rule will affect water operations or flood
control capacity. Thus, the types of downstream economic impacts
contemplated in the comment are unlikely.
Furthermore, we note that Appendix A of the final economic analysis
includes an analysis of the potential for critical habitat designation
to have a significant economic impact on a substantial number of small
entities as required by the Regulatory Flexibility Act. The appendix
discusses the case law concerning whether indirectly affected entities
(i.e., entities that are not directly subject to the regulation, such
as the downstream communities referenced in this comment) must be
included in the Regulatory Flexibility Act analysis. The case law
concludes that the analysis need only include directly regulated
entities, which the Service interprets to be Federal agencies, which
are not small entities (see Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) section below.). Our analysis goes further, and considers impacts
to small entities that may be indirectly affected (e.g., third parties
to section 7 consultations), but only to those entities for which the
regulatory link would be measurably diluted.
Indeed, in response to a similar argument to include indirectly
regulated entities in the analysis of a rule promulgated by
Environmental Protection Agency, the DC District Court wrote, ``The
rule will doubtless have economic impacts in many sectors of the
economy. But to require an agency to assess the impact on all of the
nation's small businesses possibly affected by the rule would be to
convert every rulemaking process into a massive exercise in economic
modeling, an approach we have already rejected. See Mid-Tex Elec.
Coop., 773 F.2d at 343'' (Cement Kiln Recycling Coalition v.
Environmental Protection Agency, 225 F. 3d 855, 869 (DC Cir. 2001, at
V:50-52.)). The court limited the analysis to only those small entities
to which the rule will apply. Thus, the analysis presented in Appendix
A of the final economic analysis complies with the Regulatory
Flexibility Act.

Other Comments Related to the Environmental Assessment

Comment (140): The draft environmental assessment views
environmental justice impacts only through a ``macro lens.''
Environmental justice impacts must be assessed by looking at those
impacts on us as a separate, unique people, and not solely within the
context of the entire designation.
Our Response: The environmental assessment acknowledges the
potential for localized environmental justice impacts. The potential
for economic impacts that disproportionately affect low income or
minority communities exists for some activities, to the extent that
there are employment and payroll impacts of reductions on economic
activity, and those impacts are concentrated in the minority or low
income communities. As no specific projects are mandated or authorized
by this designation of critical habitat, and the designation does not
directly restrict land use or land management activities, it is not
possible to predict whether such impacts will in fact occur. However,
it is likely that any such impacts would be at most minor, in the
context of the entire designation, because: (1) The economic impacts

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associated with individual relevant projects or actions would be
relatively small; and (2) there would be only a small number of
projects throughout the designation which would create such impacts.
Comment (141): Impacts based on biological effects, such as
benefits to the flycatcher anticipated under the different actions, are
not well developed in the environmental assessment. For example, the
document describes areas proposed for exclusion under Alternative B
that have some type of conservation or management plan to protect
habitat, but there is no discussion as to why designating critical
habitat in these habitat areas would provide any additional benefit to
the species or its habitat.
Our Response: The analysis associated with evaluating exclusions
under section 4(b)(2) of the Act, is appropriately included within this
final rule, rather than a NEPA document. Areas that were considered for
exclusion were locations where the benefits of exclusion may outweigh
the benefits of inclusion as critical habitat (see Exclusion section
above). In each exclusion analysis included within this final rule, we
considered a range of possible benefits of inclusion and exclusion, and
weighed the benefits of each in order to determine whether or not any
particular area will be excluded. Benefits of including an area as
critical habitat are largely derived from the regulatory benefits
associated with the requirements of Federal agencies to consult with
the Service for any actions that may affect the designated critical
habitat.
Comment (142): The designation of critical habitat within existing
flood control facilities would result in potential risks to public
health and safety. The proposed critical habitat would likely delay, if
not compromise, the Riverside County Flood Control and Water
Conservation District's ability to maintain existing flood control
facilities. Federal funding related to flood control facility repairs
could be significantly delayed as well. If flood control facilities are
not properly maintained or repaired when damaged, public health and
safety could be put at risk. These potential impacts have not been
addressed in the environmental assessment.
Our Response: The channel maintenance activities described in the
District's letter are covered activities within a long-term maintenance
agreement that is currently being finalized between the CDFG and the
District, as part of the implementation of the Western Riverside County
MSHCP. On June 22, 2004, the Service issued a single incidental take
permit under section 10(a)(1)(B) of the Act to 22 permittees under the
Western Riverside County MSHCP to be in effect for a period of 75 years
(Service 2004, entire). The Service anticipates the proposed actions
will affect the flycatcher, including the loss of up to 23 percent of
the modeled habitat for this species in the plan area (Service 2004, p.
227). Within the plan, and through implementation of the Riparian-
Riverine Areas and Vernal Pools policy, we anticipate no loss of
occupied flycatcher habitat or areas otherwise determined to have long-
term conservation value for the species (Service 2004, p. 227). We
concluded in our biological opinion (Service 2004, p. 227) that
implementation of the plan, as proposed, was not likely to jeopardize
the continued existence of the flycatcher. Our determination was based
on our conclusion that based on the low level of impact anticipated to
individuals of this species and because the impacts associated with
loss of the flycatcher's modeled habitat, when viewed in conjunction
with the protection and management of the MSHCP Conservation Area, are
not anticipated to result in an appreciable reduction in the numbers,
reproduction, or distribution of this subspecies throughout its range
(Service 2004, p. 227).
Species-specific flycatcher conservation objectives are included in
the Western Riverside County MSHCP. The MSHCP Conservation Area will
include at least 4,282 ha (10,580 ac) of flycatcher habitat (breeding
and migration habitat) including six core areas of high-quality habitat
and interconnecting linkages, including essential segments of the Santa
Ana River, San Timoteo Creek, and Temecula Creek (including Vail Lake).
The plan aims to conserve 100 percent of breeding habitat for the
flycatcher, including buffer areas 100 m (328 ft) adjacent to breeding
areas. In addition, the Western Riverside County MSHCP requires
compliance with a Riparian and 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.
The Service completed an internal consultation on the effects of
the plan on the flycatcher and its habitat that is found within the
plan boundaries, and determined that implementation of the plan
provides for the conservation of the species because it provides for
the conservation of breeding and migration flycatcher habitat, the
conservation of dispersal habitat and adjacent upland areas, surveys
for undiscovered populations, and the maintenance and potential
restoration of suitable habitat areas within the conservation area. For
these reasons, critical habitat designation would not lead to
incremental effects on habitat management in these areas of concern by
the District. However, because of the WRC MSHCP, these areas have been
excluded from the final critical habitat designation (see Exclusions).
Comment (143): Table 3.4 of the environmental assessment does not
include the federally listed Santa Ana River woolly-star (Eriastrum
densifolium ssp. sanctorum). The proposed critical habitat within the
Santa Ana River floodplain could result in habitat management decisions
in favor of riparian flycatcher habitat, but to the detriment of
alluvial fan sage scrub species and the Santa Ana River woolly-star
(Eriastrum densifolium ssp. sanctorum) conservation objectives of the
Western Riverside County MSHCP.
Our Response: The river processes that encourage native plant
growth and succession for flycatchers would be expected to benefit
other native plants and wildlife as well. As a result, there should not
be a conflict between conservation needs of the different species. For
example, riparian areas are dynamic systems, and there are open spaces
along rivers with soil types which are not conducive to dense woody
plant growth for flycatchers that are more appropriate for other types
of plants, such as sage scrub species or the woolly-star. Side
tributaries with open washes (wide stream channels without regular
flow) that may be more conducive to other species are not within our
designation of flycatcher critical habitat, with the exception of areas
immediately at the confluence.
Comment (144): The analysis of Alternative A is based only on
additional stream segments, as compared to 2005 designation. This
approach may underestimate adverse impacts of Alternative A.
Our Response: The No Action Alternative consists of areas
designated in 2005. This comports with the requirements under NEPA to
analyze the impacts as if none of the proposed actions were taken.
Alternative A is defined as the addition of newly proposed critical
habitat segments, and the analysis consists of the incremental

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impact of designating those segments. The sections on cumulative
impacts consider the impacts of these segments when added to those of
past, present, and reasonably foreseeable future actions.
Comment (145): The environmental assessment appears to be based on
the incorrect assumption that suitable or occupied flycatcher habitat
occurs across the entirety of mapped floodplains and recovery
Management Units, and that section 7 consultations would currently be
required within the entire mapped floodplains and Management Units.
Most floodplains and Management Units (e.g., Santa Ana River) include
various habitat types such as unvegetated, open channel areas and areas
that are not known to be occupied. If included in the critical habitat,
these areas would be subject to section 7 consultations, further
unnecessarily delaying critical flood control maintenance activities.
Our Response: The environmental assessment analyzes impacts based
on the methodology, assumptions, and definitions of critical habitat
found in the August 15, 2011, proposed rule (76 FR 50542, pp. 50553-
50558). This section includes discussion of migratory habitat, lateral
extent, and mapping, as they relate to coverage of areas within each
management unit.
Comment (146): Section 3.6.2.3 of the environmental assessment
incorrectly concludes that Alternative B impacts would be similar to
Alternative A. Alternative B would result in the exclusion of the
existing Santa Ana River Levee system from critical habitat and avoid
the adverse impacts that a critical habitat designation would likely
have upon the levees. The environmental assessment should accurately
describe the full extent of the reduced potential adverse impacts
provided by Alternative B.
Also, section 3.12.2.2 of the environmental assessment does not
address all the potential adverse socioeconomic consequences of
Alternative A, which would not exclude any of the proposed critical
habitat units. Alternative A would include the existing Santa Ana River
Levee system in the critical habitat area. This would result in
possible delays in permits for levee maintenance activities as well as
section 7 conservation measures to provide riparian vegetation
conflicting with Federal levee certification and maintenance
requirements. As a result, the levees may be decertified and
approximately 1,300 ha (3,300 ac) of land (approximately 10,000
residents) would be remapped and placed in a Federal Emergency
Management Agency (FEMA) flood hazard area and required to purchase
flood insurance policies for federally secured mortgages. The potential
flood insurance cost should be estimated and included in the analysis
of Alternative A. The flood insurance cost burden within low-income
areas protected by the levees could be especially severe.
Our Response: The Service believes that the flood control rating
for the levees would not be affected by the designation based on past
conservation efforts and consultation outcomes (see our response to
Comment 101 for more explanation). In addition, Service policy and
precedent demonstrate that maintenance activities necessary to protect
against the loss of life or property are not precluded by the Act. The
Act does not expect species conservation to take precedence over
protection of human life or property. For example, section 7(p) of the
Act, concerning Presidentially declared disaster areas, allows for
emergency actions to be taken without section 7 consultation in the
event of an ``emergency situation which does not allow the ordinary
procedures of this section to be followed.''
Examining the section 7 consultation history for the Santa Ana
sucker, for example, related to flood control operations at Cogswell
Dam shows that flood protection projects (e.g., sediment control) have
been allowed to continue even when critical habitat was designated for
the sucker at that location. Thus, economic impacts that potentially
could result from a catastrophic flood event, such as loss of life or
property value, are not quantified, because management actions to
prevent catastrophic flooding are not expected to be precluded due to
designation of critical habitat for the flycatcher. As such, while some
costs may be incurred to complete section 7 consultations, the
functioning of the levee system is unlikely to be affected by the
presence of the flycatcher or designated critical habitat, and,
therefore, flood insurance premiums should not change.
Comment (147): Section 3.13.2 of the environmental assessment does
not address the potential adverse environmental justice impacts of
Alternative A. The potential remapping of existing developed areas
behind the Santa Ana River Levees as flood hazard areas could adversely
impact low income or minority communities. In addition to public health
and safety concerns, a remapped floodplain would increase flood
insurance costs and the residential and commercial construction costs
to flood-proof structures and comply with floodplain management
requirements.
Our Response: For reasons describe above in response to Comment
147, the Service does not expect such remapping to occur as a result of
critical habitat designation.
Comment (148): The Service must evaluate the air quality and
greenhouse gas emissions and climate change impacts that may be caused
by a critical habitat designation.
Response: The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation areas. The Service must use the best scientific and
commercial information available; we do not believe that critical
habitat will cause impacts to air quality or changes to greenhouse gas
emissions.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations,

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and small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities. The SBREFA amended the RFA to require Federal agencies to
provide a certification statement of the factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities. In this final rule, we are
certifying that the critical habitat designation for the flycatcher
will not have a significant economic impact on a substantial number of
small entities. The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., water
management, livestock grazing, residential and related development, oil
and gas development, and transportation). We apply the ``substantial
number'' test individually to each industry to determine if
certification is appropriate. However, the SBREFA does not explicitly
define ``substantial number'' or ``significant economic impact.''
Consequently, to assess whether a ``substantial number'' of small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in an area. In
some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the flycatcher. Federal agencies also must consult with
us if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities (see Application of the
``Adverse Modification'' Standard section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
flycatcher and the designation of critical habitat. The analysis is
based on the estimated impacts associated with the rulemaking as
described in Chapters 3 through 10 and Appendix A of the analysis and
evaluates the potential for economic impacts related to: (1) Water
management; (2) livestock grazing; (3) residential and related
development; (4) tribes; (5) transportation; (6) mining, oil, and gas
development; and (7) recreation.
Water Management
Within areas proposed as critical habitat, approximately 1,599
businesses are engaged in the water supply and irrigation industry. Of
these, 1,350 or 84 percent have annual revenues at or below the small
business threshold of $7.0 million, and thus are considered small
entities. Only one of the dams expected to incur incremental impacts is
not operated by the Federal Government. The Luna Dam in the San
Francisco Management Unit is owned by the Luna Irrigation Company.
Because revenue information is not publicly available for this company,
we conservatively assume that it is small. This small entity represents
approximately 0.08 percent of the total number of small entities. Luna
Irrigation Company could be expected to incur annualized incremental
impacts ranging from $930 to $5,800; however, due to the lack of
flycatcher habitat or ability to establish flycatcher habitat, we have
removed the Luna Lake portion of the San Francisco River from critical
habitat designation (see Summary of Changes from Proposed Rule above).
Therefore, we anticipate no impacts to this entity from the critical
habitat designation.
Livestock Grazing
Across the areas proposed as critical habitat, 554 businesses are
engaged in the beef cattle ranching and farming industry. Of these, 517
or 93 percent, have annual revenues at or below the small business
threshold of $750,000, and thus are considered small.
The analysis forecasts a total of three incremental formal section
7 consultations; therefore, we assume three small entities may incur
project modification costs as a result of critical habitat designation.
These three small entities represent approximately 0.49 percent of
small grazers across the study area. A further 29 entities may incur
some minor administrative costs associated with informal consultations
and technical assistance efforts. These 29 entities represent
approximately 5.6 percent of small grazing entities across the study
area.
We estimate total annualized impacts to the three entities that may
incur project modification costs of $3,000 to $5,300, or $1,000 to
$1,800 per entity. Assuming each has annual revenues of $39,800, these
annualized impacts per small entity are expected to range from 2.51
percent to 4.52 percent of annual revenues. The remaining 29 entities
are expected to incur approximately $14,000 in annualized
administrative costs, or $480 per entity. Assuming each company has
annual revenues of $39,800, annualized impacts per small entity are
estimated at 1.21 percent of annual revenues. Therefore, we find that
the designation of critical habitat will not impact a significant
number of entities in this sector or have a substantial impact on those
potentially affected.
Residential and Related Development
Across the areas proposed as critical habitat, 77,348 businesses
are engaged in residential and related development. Of these, 76,516 or
nearly 99 percent have annual revenues at or below the relevant small
business thresholds for their respective North American Industry
Classification System (NAICS) codes, and thus are considered small.
We assume that one small developer will incur costs associated with
land set asides, time delays, other project

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modification, and administrative activities as a result of critical
habitat designation. This small developer represents less than 0.01
percent of small developers across the study area. The analysis
forecasts an additional six informal consultations and technical
assistance efforts that are not expected to incur land value losses.
The six small entities assumed to participate in these consultations
represent less than 0.01 percent of small developers across the study
area.
We estimate total economic impacts of $200,000 to the one small
entity that may incur costs associated with changes to its projects.
Assuming the average small entity has annual revenues of approximately
$3.5 million, these annualized impacts per small entity represent
approximately 5.7 percent of annual revenues. The remaining six
entities are expected to incur approximately $11,000 in annualized
administrative costs, or $1,800 per entity. Assuming each company has
annual revenues of $3.5 million, annualized impacts per small entity
represent approximately 0.05 percent of annual revenues. Therefore, we
find that the designation of critical habitat will not impact a
significant number of entities in this sector or have a substantial
impact on those potentially affected.
Transportation
Impacts to transportation activities are expected to be incurred
largely by Federal and State agencies. These entities are not
considered small. However, the analysis forecasts some administrative
costs associated with roads that may be managed by county or city
governments. The analysis forecasts informal and technical assistance
efforts in four counties out of the 49 counties in the study area. Of
these counties, 3 counties or 75 percent have populations falling below
50,000, and, therefore, are considered small. Third-party
administrative costs for these three counties total $8,300 on an
annualized basis. These impacts represent between 0 and 0.06 percent of
the respective county's annual revenues, and, therefore, not considered
a significant impact.
Mining, Oil, and Gas Development
We do not forecast incremental impacts to mining activities.
Moreover, the known mining companies pursuing activities in the
vicinity of critical habitat are not small entities. To be considered a
small entity in this industry, companies must employ fewer than 500
people. FMC employs more than 29,700 people. Grupo Mexico, the parent
company of Asarco, Inc., employed 23,931 people in 2010. Rosemont
Copper anticipates employing up to 444 people directly at the Rosemont
Mine. As of 2011, the parent company of Rosemont Copper, Augusta
Resource Corporation, employed a total of 56 people throughout Canada
and the United States. Therefore, it is unlikely that Augusta Resource
Corporation will employ fewer than 500 people following construction of
the Rosemont Mine.
Across the areas proposed as critical habitat, 393 businesses are
engaged in the oil and gas industry. A total of 15 oil and gas
companies are located within La Plata County, Colorado, and San Juan
County, Utah, and may be affected by critical habitat. Of these 15
companies, 11 entities, or approximately 73 percent, employ fewer than
500 employees, and thus, are considered small.
The analysis forecasts a total of seven formal and informal section
7 consultations. Therefore, we assume that seven small oil and gas
companies incur costs incremental administrative costs associated with
section 7 consultation. These seven small entities may incur total
administrative costs of $200, or $28 per entity. Assuming the average
small entity has annual revenues of approximately $2.2 million, these
annualized impacts per small entity represent less than 0.01 percent of
annual revenues, and, therefore, not considered a significant impact.
Recreation
We examined potential impacts to recreational activities, such as
hiking, camping, picnicking, fishing, hunting, boating, river rafting,
and ORV use, and did not forecast any incremental impacts; therefore,
no incremental impacts to small entities are anticipated.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In doing so, we focus on the specific areas being designated as
critical habitat and compare the number of small business entities
potentially affected in that area with other small business entities in
the region, instead of comparing the entities in the area of
designation with entities nationally, which is more commonly done. This
analysis results in an estimation of a higher number of small
businesses potentially affected. If we were to calculate that value
based on the proportion nationally, then our estimate would be
significantly lower. Following our evaluation of potential effects to
small business entities from this rulemaking, we conclude that the
number of potentially affected small businesses is not substantial.
In summary, we have considered whether this revised designation
will result in a significant economic effect on a substantial number of
small entities. Given that this final rule excludes 1270.4 km (789.6
mi) of stream segments from final designation, the costs of the
critical habitat designation will likely be even lower. Based on the
above reasoning and currently available information, we concluded that
this rule will not result in a significant economic impact on a
substantial number of small entities. Therefore, we are affirming our
certification that the designation of critical habitat for the
flycatcher will not have a significant economic impact on a substantial
number of small entities, and a regulatory flexibility analysis is not
required.

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Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The Office of Management and Budget (OMB) has provided
guidance for implementing this Executive Order that outlines nine
outcomes that may constitute ``a significant adverse effect'' when
compared to not taking the regulatory action under consideration.
Some dams within the flycatcher proposed critical habitat area have
installed hydroelectric capacity; however, the conclusion found in our
economic analysis does not forecast any changes to the timing or amount
of water spilled at these dams.
With respect to potential impacts to the oil and gas development
industry, representatives express concern that development activity in
La Plata County, Colorado, and San Juan County, Utah, will be subject
to section 7 consultation as a result of the designation. They estimate
additional per project costs of $20,000, and potential time delays,
associated with the consultation activity. Total energy production from
natural gas wells in these counties totaled 433 million Mcf (1 Mcf =
one thousand cubic feet) in 2010, or approximately 1.6 percent of the
26.86 billion Mcf produced in the United States in the same year.
Based on the protections already afforded riparian habitat, we
project only seven formal and information consultations over the
timeframe for the analysis. Because total present value incremental
administrative costs are $11,000 over 20 years, costs associated with
section 7 consultation are unlikely to increase the cost of energy
production in the United States in excess of 1 percent.
The economic analysis finds that energy-related impacts associated
with flycatcher conservation activities within critical habitat are not
expected (Industrial Economics, Inc. 2012, pp. A-17-A18). As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The FEA concludes incremental impacts may occur due to
administrative costs of section 7 consultations for water management,
livestock grazing, residential and related development, tribal,
transportation, mining, oil, and gas development, and recreation
projects; however, these are not expected to significantly affect small
governments. Incremental impacts stemming from various species
conservation and development control activities are expected to be
borne by the Federal Government, State agencies, with some effects to
water and livestock grazing operators, and land, oil, and gas
developers, which are not considered small governments. The designation
of critical habitat imposes no obligations on State or local
governments. By definition, Federal agencies are not considered small
entities, although the activities they fund or permit may be proposed
or carried out by small entities. Consequently, we do not believe that
the critical habitat designation will significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the flycatcher in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, assistance, or require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. The takings implications assessment concludes
that this designation of critical habitat for the flycatcher does not
pose significant takings implications for lands within or affected by
the designation.

[[Page 499]]

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in California, Arizona,
Nevada, Utah, Colorado, and New Mexico. We received comments from state
wildlife agencies of Arizona, Nevada, Arizona, and Colorado. We also
received comments from The State of Utah's Governor's office. We have
addressed them in the Summary of Comments and Recommendations section
of the rule. The designation of critical habitat in areas currently
occupied by the flycatcher may impose nominal additional regulatory
restrictions to those currently in place and, therefore, may have
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas that contain the physical or biological features
essential to the conservation of the species are more clearly defined,
and the elements of the features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. This final rule uses standard property descriptions and identifies
the elements of physical or biological features essential to the
conservation of the flycatcher within the designated areas to assist
the public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of flycatcher, under the Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996), we prepare an environmental assessment.
We prepared a draft environmental assessment for flycatcher
critical habitat designation and notified the public of its
availability in the Federal Register on July 12, 2012 (77 FR 41147). We
also accepted public comments on the draft environmental assessment and
made revisions in response to many of those comments (see Summary of
Comment and Recommendations above). In preparing the environmental
assessment, we also considered the previous critical habitat
designation in 2005, internal scoping within the Service, a review of
the previous consultation history of the species, and a review of
public comments we received on the August 15, 2011, proposed rule (76
FR 50542).
We analyzed the potential impacts of critical habitat designation
on the following resources and resource management types: Land use and
management; fish, wildlife, and plants (including endangered and
threatened species); fire management; water resources (including water
management projects and groundwater pumping); livestock grazing;
construction and development; tribal trust resources; soils and mineral
resources; recreation; socioeconomics; and environmental justice. We
found that the designation of critical habitat for the flycatcher would
not have direct impacts on the environment as designation is not
expected to impose land use restrictions or prohibit land use
activities. However, the designation of critical habitat could: (1)
Increase the number of additional section 7 consultations for proposed
projects within designated critical habitat; (2) increase the number of
reinitiated section 7 consultations for ongoing projects within
designated critical habitat; (3) maintain the flycatcher's primary
constituent elements; (4) increase the likelihood of greater
expenditures of time and Federal funds to develop measures to prevent
both adverse effects to the species and adverse modification to
critical habitat; and (5) indirectly increase the likelihood of greater
expenditure of non-Federal funds by project proponents to complete
section 7 consultations and to develop reasonable and prudent
alternatives (to avoid adverse modification of critical habitat by
Federal agencies) that maintain critical habitat. Such an increase
might occur where there is a Federal nexus to actions within areas with
no known flycatcher territories, or from the addition of adverse
modification analyses to jeopardy consultations in known flycatcher
habitat.
The primary purpose of preparing an environmental assessment under
NEPA is to determine whether a proposed action would have significant
impacts on the human environment. If significant impacts may result
from a proposed action, then an environmental impact statement is
required (40 CFR 1502.3). Whether a proposed action exceeds a threshold
of significance is determined by analyzing the context and the
intensity of the proposed action (40 CFR 1508.27). Our environmental
assessment found that the impacts of the proposed critical habitat
designation would be minor and not rise to a significant level, so
preparation of an environmental impact statement is not

[[Page 500]]

required. Copies of our final environmental assessment and Finding of
No Significant Impact can be found at http://www.fws.gov/southwest/es/arizona, http://www.regulations.gov at Docket No. FWS-R2-ES-2011-0053,
and at the Arizona Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT).

Government-to-Government Relationship with Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
There were tribal lands in California, Utah, Arizona, Colorado, and
New Mexico included in the proposed designation of flycatcher critical
habitat. At the end of the 2007 flycatcher breeding season, 5 percent
of all known breeding sites were administered by Native American Tribes
(Durst et al. 2007, p. 17). Using the criteria found in the Criteria
Used To Identify Critical Habitat section, we determined that all of
the areas proposed for designation on tribal lands were essential to
flycatcher conservation. We sought government-to-government
consultation with these tribes throughout the proposal and development
of this final designation of flycatcher critical habitat, and we spoke
to tribal representatives at conferences, meetings, and public hearings
about the designation. We communicated with tribes through letters,
electronic messages, and telephone calls about our exclusion process
under section 4(b)2 of the Act, and we provided templates and
information to develop management plans, technical assistance and
review of management plans, and critical habitat designation
information and schedule updates. We considered these tribal areas for
exclusion from final critical habitat designation to the extent
consistent with the requirements of 4(b)(2) of the Act, and
subsequently, excluded all tribal lands from this final designation.

References Cited

A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Arizona Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this rulemaking are the staff members of the
Arizona Ecological Services Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec. 17.11(h) by revising the entry for ``Flycatcher,
southwestern willow'' under ``BIRDS'' in the List of Endangered and
Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 501]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
------------------------------------------------- Historic range where endangered or Status When listed Critical Special rules
Common name Scientific name threatened habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
BIRDS

* * * * * * *
Flycatcher, southwestern Empidonax U.S.A. (AZ, CA, Entire E............ 577 17.95(b) NA
willow. traillii CO, NM, NV, TX,
extimus. UT), Mexico.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (b) by revising the entry for
``Southwestern Willow Flycatcher (Empidonax traillii extimus)'' to read
as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *
Southwestern Willow Flycatcher (Empidonax traillii extimus)
(1) Critical habitat units are depicted for 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 on the maps and as described below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
southwestern willow flycatcher consist of two components:
(i) 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 meters (m) to 30 m (about 6 feet
(ft) 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 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 hectare (ha) (0.25 acre (ac))
or as large as 70 ha (175 ac).
(ii) 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).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
February 4, 2013.
(4) Critical habitat map units. Data layers defining map units were
created in two steps. First, the linear segments were mapped from the
National Hydrologic Dataset using USA Contiguous Equidistant Conic
(North American Datum 1983) coordinates. Next, the lateral extents were
digitized over the most recent available aerial photography using
Albers Equal Area Conic (North American Datum 1983) coordinates. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the field office internet site (http://www.fws.gov/southwest/es/arizona/), http://www.regulations.gov at
Docket No. FWS-R2-ES-2011-0053, and at the Arizona Ecological Services
Office. The textual description for each critical habitat unit below
includes the Universal Transverse Mercator (UTM) zone and UTM easting
(E) and northing (N) coordinate pairs for the starting and ending
points.
(5) Index map of southwestern willow flycatcher critical habitat
units follows:

[[Page 502]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.000

(6) Santa Ynez Management Unit.
(i)

(ii) Map of Santa Ynez Management Unit follows:

[[Page 503]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.001

(7) Santa Clara Management Unit.
(i)

(ii) Map of Santa Clara Management Unit follows:

[[Page 504]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.002

(8) Santa Ana Management Unit.
(i)

[[Page 505]]

Waterman Creek (right fork)........ 11, 474240, 3786803.................. 11, 473755, 3785448.
Waterman Creek..................... 11, 474905, 3782822.................. 11, 473755, 3785448.
Bear Creek......................... 11, 502121, 3788996.................. 11, 498606, 3779948.
Mill Creek......................... 11, 513502, 3770687.................. 11, 496356, 3772092.
Oak Glen Creek..................... 11, 505534, 3767595.................. 11, 501351, 3768018.
San Timoteo Creek.................. 11, 484708, 3762642.................. 11, 481625, 3764986.
Bautista Creek (east).............. 11, 528791, 3720143.................. 11, 527304, 3719071.
Bautista Creek (middle)............ 11, 526904, 3718922.................. 11, 518771, 3721743.
Bautista Creek (west).............. 11, 517140, 3723124.................. 11, 514531, 3727407.
----------------------------------------------------------------------------------------------------------------

(ii) Map of Santa Ana Management Unit follows:

[[Page 506]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.003

(9) San Diego Management Unit.
(i)

[[Page 507]]

San Luis Rey (g)................... 11, 497295, 3690329.................. 11, 496153, 3690759.
San Luis Rey (h)................... 11, 496081, 3690813.................. 11, 495783, 3690993.
San Luis Rey (i)................... 11, 489568, 3690435.................. 11, 485862, 3687887.
San Luis Rey (j)................... 11, 485350, 3687335.................. 11, 463676, 3673857.
Agua Hedionda Creek (right fork)... 11, 478544, 3668255.................. 11, 478368, 3668540.
Agua Hedionda Creek (left fork).... 11, 479102, 3668675.................. 11, 478368, 3668540.
Agua Hedionda Creek (east)......... 11, 478368, 3668540.................. 11, 477313, 3668413.
Agua Hedionda Creek (west)......... 11, 477300, 3668395.................. 11, 476338, 3667736.
Santa Ysabel River................. 11, 510002, 3661282.................. 11, 513775, 3664649.
San Diego River (north)............ 11, 524742, 3650609.................. 11, 524200, 3648866.
San Diego River (south)............ 11, 524334, 3648051.................. 11, 521806, 3645774.
Sweetwater River (east)............ 11, 506745, 3622685.................. 11, 505588, 3621746.
Sweetwater River (west)............ 11, 505445, 3621626.................. 11, 503989, 3619356.
----------------------------------------------------------------------------------------------------------------

(ii) Map of San Diego Management Unit follows:

[[Page 508]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.004

(10) Kern Management Unit.
(i)

(ii) Map of Kern Management Unit follows:

[[Page 509]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.005

(11) Mojave Management Unit.
(i)

(ii) Map of Mojave Management Unit follows:

[[Page 510]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.006

(12) Salton Management Unit.
(i)

[[Page 511]]

(ii) Map of Salton Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.007

(13) Amargosa Management Unit.
(i)

[[Page 512]]

(ii) Map of Amargosa Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.008

[[Page 513]]

(14) Little Colorado Management Unit.
(i)

(ii) Map of Little Colorado Management Unit follows:

[[Page 514]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.009

(15) Virgin Management Unit.
(i)

[[Page 515]]

(ii) Map of Virgin Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.010

(16) Pahranagat Management Unit.
(i)

[[Page 516]]

(ii) Map of Pahranagat Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.011

[[Page 517]]

(17) Bill Williams Management Unit.
(i)

(ii) Map of Bill Williams Management Unit follows:

[[Page 518]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.012

(18) San Juan Management Unit.
(i)

[[Page 519]]

San Juan River (north bank) (e).... 12, 638284, 4126485.................. 12, 637792, 4126469.
San Juan River (north bank) (f).... 12, 637202, 4126657.................. 12, 637106, 4126797.
San Juan River (north bank) (g).... 12, 636634, 4127216.................. 12, 634726, 4127362.
San Juan River (north bank) (h).... 12, 629380, 4126564.................. 12, 629093, 4126125.
San Juan River (north bank) (i).... 12, 625734, 4125285.................. 12, 625705, 4125263.
San Juan River (north bank) (j).... 12, 623718, 4124823.................. 12, 622438, 4124358.
San Juan River (north bank) (k).... 12, 622161, 4123347.................. 12, 622295, 4122911.
San Juan River (north bank) (l).... 12, 622386, 4122629.................. 12, 622370, 4122575.
San Juan River (north bank) (m).... 12, 617636, 4121043.................. 12, 617515, 4120863.
San Juan River (north bank) (n).... 12, 614411, 4119430.................. 12, 614122, 4118982.
San Juan River (north bank) (o).... 12, 614014, 4118335.................. 12, 613916, 4117990.
----------------------------------------------------------------------------------------------------------------

(ii) Map of San Juan Management Unit follows:

[[Page 520]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.013

(19) Powell Management Unit.
(i)

(ii) Map of Powell Management Unit follows:

[[Page 521]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.014

(20) Verde Management Unit.
(i)

[[Page 522]]

Verde River (north) (f)............ 12, 421564, 3821197.................. 12, 428120, 3814335.
Verde River (middle)............... 12, 438102, 3793821.................. 12, 432660, 3767298.
Verde River (south)................ 12, 434407, 3760594.................. 12, 436961, 3756352.
----------------------------------------------------------------------------------------------------------------

(ii) Map of Verde Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.015

(21) Roosevelt Management Unit.
(i)

[[Page 523]]

(ii) Map of Roosevelt Management Unit follows:

[[Page 524]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.016

(22) Middle Gila and San Pedro Management Unit.
(i)

[[Page 525]]

San Pedro River (c)................ 12, 525384, 3640762.................. 12, 525584, 3641024.
San Pedro River (b)................ 12, 525629, 3641438.................. 12, 525358, 3641744.
San Pedro River (a)................ 12, 525001, 3641712.................. 12, 520287, 3649594.
----------------------------------------------------------------------------------------------------------------

(ii) Map of Middle Gila and San Pedro Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.017

(23) Upper Gila Management Unit.
(i)

[[Page 526]]

----------------------------------------------------------------------------------------------------------------
Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N
----------------------------------------------------------------------------------------------------------------
Gila River (east) (a).............. 12, 734274, 3662473.................. 12, 728739, 3655290.
Gila River (east) (b).............. 12, 728580, 3655097.................. 12, 728537, 3655057.
Gila River (east) (c).............. 12, 728427, 3654997.................. 12, 728137, 3654656.
Gila River (east) (d).............. 12, 728113, 3654588.................. 12, 727938, 3654314.
Gila River (east) (e).............. 12, 727498, 3653376.................. 12, 727395, 3653367.
Gila River (east) (f).............. 12, 727387, 3653367.................. 12, 727033, 3652562.
Gila River (east) (g).............. 12, 726825, 3652154.................. 12, 726768, 3652095.
Gila River (east) (h).............. 12, 726395, 3651745.................. 12, 726361, 3651686.
Gila River (east) (i).............. 12, 724538, 3649297.................. 12, 724416, 3649186.
Gila River (east) (j).............. 12, 723879, 3648880.................. 12, 723637, 3648711.
Gila River (east) (k).............. 12, 723626, 3648220.................. 12, 723707, 3648074.
Gila River (east) (l).............. 12, 723726, 3647982.................. 12, 723726, 3647894.
Gila River (east) (m).............. 12, 723769, 3647188.................. 12, 725465, 3644450.
Gila River (east) (n).............. 12, 724871, 3643867.................. 12, 724533, 3643574.
Gila River (east) (o).............. 12, 724794, 3642783.................. 12, 724788, 3641978.
Gila River (east) (p).............. 12, 724913, 3640498.................. 12, 724873, 3640376.
Gila River (east) (q).............. 12, 725055, 3639520.................. 12, 724887, 3639586.
Gila River (east) (r).............. 12, 725319, 3639100.................. 12, 725232, 3639274.
Gila River (east) (s).............. 12, 725376, 3638811.................. 12, 724678, 3636350.
Gila River (east) (t).............. 12, 724616, 3636306.................. 12, 723917, 3635619.
Gila River (east) (u).............. 12, 724979, 3631107.................. 12, 723787, 3635503.
Gila River (middle)................ 12, 717951, 3623479.................. 12, 675537, 3624185.
Gila River (west).................. 12, 639563, 3639230.................. 12, 588063, 3662184.
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(ii) Map of Upper Gila Management Unit follows:

[[Page 527]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.018

(24) Santa Cruz Management Unit.
(i)

(ii) Map of Santa Cruz Management Unit follows:

[[Page 528]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.019

(25) San Francisco Management Unit.
(i)

[[Page 529]]

(ii) Map of San Francisco Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.020

(26) Hassayampa and Agua Fria Management Unit.
(i)

[[Page 530]]

(ii) Map of Hassayampa and Agua Fria Management Unit follows:
[GRAPHIC] [TIFF OMITTED] TR03JA13.021

(27) San Luis Valley Management Unit.
(i)

[[Page 531]]

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N
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Conejos River (a).................. 13, 429852, 4128272.................. 13, 430156, 4128249.
Conejos River (b).................. 13, 428787, 4127864.................. 13, 429759, 4128320.
Conejos River (c).................. 13, 426944, 4126743.................. 13, 428019, 4127483.
Conejos River (d).................. 13, 426839, 4126661.................. 13, 426944, 4126712.
Rio Grande Alamosa NWR (a)......... 13, 425015, 4146872.................. 13, 424689, 4146861.
Rio Grande Alamosa NWR (b)......... 13, 425325, 4145894.................. 13, 425218, 4146803.
Rio Grande Alamosa NWR (c)......... 13, 425993, 4145065.................. 13, 425968, 4145195.
Rio Grande Alamosa NWR (d)......... 13, 426007, 4144674.................. 13, 425947, 4144875.
Rio Grande Alamosa NWR (e)......... 13, 426375, 4144517.................. 13, 426158, 4144551.
Rio Grande Alamosa NWR (f)......... 13, 426597, 4144617.................. 13, 426539, 4144526.
Rio Grande Alamosa NWR (g)......... 13, 426772, 4144724.................. 13, 427043, 4144549.
Rio Grande Alamosa NWR (h)......... 13, 427054, 4144318.................. 13, 427082, 4144368.
Rio Grande Alamosa NWR (i)......... 13, 426927, 4144080.................. 13, 426966, 4144240.
Rio Grande Alamosa NWR (j)......... 13, 427035, 4143868.................. 13, 426910, 4143984.
Rio Grande Alamosa NWR (k)......... 13, 427220, 4143816.................. 13, 427093, 4143789.
Rio Grande Alamosa NWR (l)......... 13, 427393, 4143996.................. 13, 427293, 4143901.
Rio Grande Alamosa NWR (m)......... 13, 427666, 4143776.................. 13, 427440, 4144028.
Rio Grande Alamosa NWR (n)......... 13, 427915, 4143464.................. 13, 427792, 4143694.
Rio Grande Alamosa NWR (o)......... 13, 428181, 4143345.................. 13, 427986, 4143362.
Rio Grande Alamosa NWR (p)......... 13, 428459, 4143470.................. 13, 428228, 4143377.
Rio Grande Alamosa NWR (q)......... 13, 428708, 4143582.................. 13, 428673, 4143555.
Rio Grande Alamosa NWR (r)......... 13, 429166, 4143276.................. 13, 428800, 4143661.
Rio Grande Alamosa NWR (s)......... 13, 430052, 4142873.................. 13, 429858, 4142950.
Rio Grande Alamosa NWR (t)......... 13, 430498, 4142399.................. 13, 430209, 4142812.
Rio Grande Alamosa NWR (u)......... 13, 430614, 4138902.................. 13, 430557, 4142367.
Rio Grande Alamosa NWR (v)......... 13, 431001, 4137666.................. 13, 430612, 4138731.
Rio Grande Alamosa NWR (w)......... 13, 432176, 4135160.................. 13, 431001, 4137611.
Rio Grande Alamosa NWR (x)......... 13, 432643, 4134711.................. 13, 432171, 4134988.
Rio Grande Alamosa NWR (y)......... 13, 432779, 4134527.................. 13, 432715, 4134634.
Rio Grande Alamosa NWR (z)......... 13, 432856, 4134398.................. 13, 432802, 4134495.
Rio Grande Alamosa NWR (aa)........ 13, 432979, 4134165.................. 13, 432938, 4134250.
Rio Grande Alamosa NWR (bb)........ 13, 433594, 4133899.................. 13, 433579, 4134077.
Rio Grande (south)................. 13, 434064, 41120967................. 13, 432747, 4103848.
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(ii) Map of San Luis Valley Management Unit follows:

[[Page 532]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.022

(28) Upper Rio Grande Management Unit.
(i)

(ii) Map of Upper Rio Grande Management Unit follows:

[[Page 533]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.023

(29) Middle Rio Grande Management Unit.
(i)

(ii) Map of Middle Rio Grande Management Unit follows:

[[Page 534]]

[GRAPHIC] [TIFF OMITTED] TR03JA13.024

* * * * *

Dated: December 11, 2012.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-30634 Filed 1-2-13; 8:45 am]
BILLING CODE 4310-55-C