Vol. 78 Thursday, No. 2 January 3, 2013

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Southwestern Willow Flycatcher; Final Rule

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DEPARTMENT OF THE INTERIOR telephone 602–242–0210; facsimile environmental consequences resulting 602–242–2513. from the proposed action of designating Fish and Wildlife Service The coordinates or plot points or both revised critical habitat for the flycatcher. from which the critical habitat maps are We announced the availability of the 50 CFR Part 17 generated are included in the draft economic analysis and draft [Docket No. FWS–R2–ES–2011–0053; administrative record for this critical environmental assessment in the 4500030114] habitat designation and are available at Federal Register on July 12, 2012 (77 FR http://www.fws.gov/southwest/es/ 41147), allowing the public to provide RIN 1018–AX43 arizona, www.regulations.gov at Docket comments on our analyses. We have No. FWS–R2–ES–2011–0053, and at the considered the comments and have Endangered and Threatened Wildlife Arizona Ecological Services Office (see completed the final economic analysis and Plants; Designation of Critical FOR FURTHER INFORMATION CONTACT). and final environmental assessment Habitat for Southwestern Willow Any additional tools or supporting concurrently with this final Flycatcher information that we may develop for determination. AGENCY: Fish and Wildlife Service, this critical habitat designation will also Peer review and public comment. We Interior. be available at the Fish and Wildlife sought comments from independent specialists to ensure that our ACTION: Final rule. Service Web site and Field Office set out above, and may also be included in the designation is based on scientifically SUMMARY: We, the U.S. Fish and preamble or at http:// sound data and analyses. We obtained Wildlife Service (Service), designate www.regulations.gov. opinions from four knowledgeable individuals with scientific expertise to revised critical habitat for the FOR FURTHER INFORMATION CONTACT: review our technical assumptions, southwestern willow flycatcher Steve Spangle, Field Supervisor, U.S. (Empidonax traillii extimus) (flycatcher) analysis, and whether or not we had Fish and Wildlife Service, Arizona used the best available information. under the Endangered Species Act. In Ecological Services Office, 2321 West total, approximately 1,975 These peer reviewers generally Royal Palm Rd., Suite 103, Phoenix, AZ concurred with our methods and kilometers (1,227 stream miles) are 85021; telephone 602–242–0210; being designated as critical habitat. conclusions and provided additional facsimile 602–242–2513. If you use a information, clarifications, and These areas are designated as stream telecommunications device for the deaf segments, with the lateral extent suggestions to improve this final rule. (TDD), call the Federal Information Information we received from peer including the riparian areas and Relay Service (FIRS) at 800–877–8339. that occur within the 100-year review is incorporated in this final SUPPLEMENTARY INFORMATION: floodplain or flood-prone areas revised designation. We also considered encompassing a total area of Executive Summary all comments and information received approximately 84,569 hectares (208,973 from the public during the comment Why we need to publish a rule. This period. acres). The critical habitat is located on is a final rule to revise the designation a combination of Federal, State, tribal, of critical habitat for the southwestern Previous Federal Actions and private lands in Inyo, Kern, Los willow flycatcher (flycatcher). Under The flycatcher was listed as Angeles, Riverside, Santa Barbara, San the Endangered Species Act (Act), any endangered under the Act (16 U.S.C. Bernardino, San Diego, and Ventura species that is determined to be an 1531 et seq.) on February 27, 1995 (60 Counties in ; Clark, Lincoln, endangered or threatened species FR 10694). On July 22, 1997, we and Nye Counties in southern Nevada; requires critical habitat to be designated, published a final critical habitat Kane, San Juan, and Washington to the maximum extent prudent and designation for the flycatcher along 964 Counties in southern Utah; Alamosa, determinable. Designations and km (599 river mi) in Arizona, Conejos, Costilla, and La Plata Counties revisions of critical habitat can only be California, and New Mexico (62 FR in southern Colorado; Apache, Cochise, completed by issuing a rule. 39129). We published a correction Gila, Graham, Greenlee, La Paz, The revised critical habitat areas we notice on August 20, 1997, on the lateral Maricopa, Mohave, Pima, Pinal, Santa are designating in this rule constitute extent of critical habitat (62 FR 44228). Cruz, and Yavapai Counties in Arizona; our current best assessment of the areas As a result of a 1998 lawsuit from the and Catron, Grant, Hidalgo, Mora, Rio that meet the definition of flycatcher New Mexico Cattle Growers’ Arriba, Socorro, Taos, and Valencia critical habitat. In total, we are Association, on October 19, 2005 (70 FR Counties in New Mexico. The effect of designating as flycatcher critical habitat 60886), we published a revised final this regulation is to conserve the approximately 1,975 stream kilometers flycatcher critical habitat rule for flycatcher’s habitat under the (km) (1,227 stream miles (mi)) portions of Arizona, California, New Endangered Species Act. encompassing a total area of Mexico, Nevada, and Utah, totaling DATES: This rule becomes effective on approximately (84,569 hectares (ha), approximately 48,896 ha (120,824 ac) or February 4, 2013. (208,973 acres (ac)) in 24 Management 1,186 km (737 mi). River segments were ADDRESSES: This final rule is available Units. designated as critical habitat in 15 of the on the Internet at http:// We have prepared an economic 32 Management Units described in the www.regulations.gov, Docket No. FWS– analysis and environmental assessment Recovery Plan (Service 2002, p. 63). R2–ES–2011–0053. Comments and for the designation of critical habitat. In We were sued by the Center for materials received, as well as supporting order to consider economic impacts, we Biological Diversity over our 2005 documentation used in preparing this have prepared an analysis of the critical habitat rule, and on July 13, final rule, are available for public economic impacts of the critical habitat 2010, we agreed to redesignate critical inspection, by appointment, during designations and related factors. The habitat. The resulting settlement left the normal business hours, at the U.S. Fish purpose of the environmental existing critical habitat designation from and Wildlife Service, Arizona Ecological assessment, prepared pursuant to the 2005 in effect. We proposed a flycatcher Services Office, 2321 West Royal Palm National Environmental Policy Act critical habitat revision on August 15, Rd., Suite 103, Phoenix, AZ 85021; (NEPA), is to identify and disclose the 2011 (76 FR 50542), and additional

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proposal information was included in Distribution by foraging, migrating, and dispersing our July 12, 2012 (77 FR 41147), rule flycatchers for food, cover, and shelter. reopening the comment period. We The known geographical area At the time of listing, breeding sites requested and received an extension to historically occupied by migrating and in California, Nevada, Utah, and allow a final rule to be delivered to the breeding flycatchers includes southern Colorado described by Unitt (1987, pp. California, southern Nevada, southern Federal Register by December 14, 2012. 149–152) were adopted as the Utah, southern Colorado, Arizona, New subspecies’ northern boundary. Background Mexico, western Texas, and extreme However, the collection and analysis of northwestern Mexico (Hubbard 1987, genetic material across this part of the Additional background information pp. 6–10; Unitt 1987, pp. 144–152; flycatcher’s range has since refined this on the flycatcher, beyond what is Browning 1993, pp. 248, 250). The boundary (Paxton 2000, pp. 3, 18–20), provided below, can be found in the flycatcher’s current range is similar to and reduced the extent of the northern proposed revision of flycatcher critical the historical range, but the quantity of boundary of the southwestern habitat published on August 15, 2011 suitable habitat within that range is subspecies in Utah and Colorado (76 FR 50542), as well as the final reduced from historical levels (Service (Service 2002, Figure 3). Territories flycatcher critical habitat rule published 2002, pp. 7–10). Flycatchers nest within once believed to be held by in the Federal Register on October 19, the southwestern United States from southwestern willow flycatchers in Utah 2005 (70 FR 60886); our October 12, about May to September (Sogge et al. and Colorado are now more accurately 2004, proposed critical habitat rule (69 2010, p. 11). known to be occupied by a different, FR 60706); the Southwestern Willow At the time of listing in February 1995 non-listed willow flycatcher subspecies. Flycatcher Recovery Plan (Recovery (60 FR 10694), the distribution and As a result, the southwestern Plan) (Service 2002, entire); our first abundance of nesting flycatchers, their subspecies’ range only occurs in the flycatcher critical habitat designation, natural history, and areas occupied by southernmost portions of Utah and published July 22, 1997 (62 FR 39129), breeding, nonbreeding, migrating, and Colorado. This genetic work also and August 20, 1997 (62 FR 44228); the dispersing flycatchers were not well confirmed the identity of southwestern final flycatcher listing rule (60 FR known. In February 1995, 359 breeding willow flycatcher subspecies throughout 10694, February 27, 1995); the 10-year territories were known only from the rest of its range. flycatcher study in central Arizona California, Arizona, and New Mexico. The USGS has continued to collect (Paxton et al. 2007, entire); the 2007 Unitt (1987, p. 156) estimated the entire genetic information to help refine the rangewide status report (Durst et al. population was ‘‘well under a 1000 northern boundary of the subspecies’ 2008, entire); and flycatcher survey pairs, more likely 500,’’ and 230 to 500 range in Utah, Colorado, and New protocol and natural history summary breeding territories (see definition Mexico (Paxton et al. 2007a, entire). (Sogge et al. 2010, entire). Other reports below) were estimated to exist in the They reconfirmed the genetic markers can be retrieved from the U.S. July 23, 1993, flycatcher listing proposal that identify differences among Geological Survey’s (USGS) flycatcher (58 FR 39495, p. 39498). flycatcher subspecies, with breeding sites clustering into two groups site at http://sbsc.wr.usgs.gov/cprs/ At the end of 2007, 1,299 flycatcher separated approximately along the research/projects/swwf. breeding territories were estimated to currently recognized boundary; occur throughout southern California, Taxonomy however, they noted a distinct genetic southern Nevada, southern Utah, boundary line between the subspecies The flycatcher, from the taxonomic southern Colorado, Arizona, and New order Passeriformes, is one of four does not exist (Paxton et al. 2007a, p. Mexico (Durst et al. 2008, p. 4). Some 17). Instead of a distinct boundary, they subspecies of the willow flycatcher of the flycatcher breeding sites (see suggested that the boundary should be currently recognized (Hubbard 1987, pp. definition below) having the highest thought of as a ‘‘region of genetic 3–6; Unitt 1987, pp. 137–144), although number of territories are found along the overlap’’ (Paxton et al. 2007a, p. 17). Browning (1993, p. 248) suggests a middle Rio Grande and upper Gila River They also described that this genetic possible fifth subspecies (Empidonax in New Mexico, and Roosevelt Lake and overlap region will likely widen and traillii campestris) in the central and the San Pedro and Gila River confluence contract over time based upon habitat midwestern United States. area in central Arizona. changes (Paxton et al. 2007a, p. 17). An Species Description A breeding site is simply an area additional complication in refining the along the river that has been described subspecies’ northern boundary is that The flycatcher is a small, insect-eating while surveying for flycatcher territories this region is sparsely populated with generalist (Service 2002, p. 26), (Service 2002, p. C–4; Sogge et al. 2010, breeding flycatchers, and therefore only neotropical migrant bird. It grows to p. 34). A breeding site can contain none, minimal information is available that about 15 centimeters (5.8 inches) in only one, or many territories. However, would help narrow down the location of length. It eats a wide range of within this final rule, we refer to a boundary (Paxton et al. 2007a, p.16). invertebrate prey including flying, and breeding sites as areas where flycatcher We continue to seek out territories and ground- and vegetation-dwelling, insect territories were detected. A territory is collect genetic samples to further our species of terrestrial and aquatic origins defined as a discrete area defended by understanding of this area, but we (Drost et al. 2003, pp. 96–102). The a single flycatcher or pair of flycatchers currently recognize the northern flycatcher spends the winter in within a single breeding season (Sogge geographic boundary of the flycatcher as locations such as southern Mexico, et al. 2010, p. 34). The territory is described in the Recovery Plan (Service Central America, and probably South usually evidenced by the presence of a 2002, Figures 3, 4). America (Ridgely and Gwynne 1989, p. singing male, and possibly one or more All willow flycatcher subspecies 303; Stiles and Skutch 1989, pp. 321– mates (Sogge et al. 2010, p. 34). When spend time migrating in the United 322; Howell and Webb 1995, pp. 496– we discuss locations occupied by States from April to June and from July 497; Unitt 1997, pp. 70–73; flycatchers, those are locations not just through September. Willow flycatchers, Koronkiewicz et al. 1998, p. 12; Unitt of those areas used as breeding like most small, migratory, insect-eating 1999, p. 14). territories, but also of those areas used birds, require food-rich stopover areas

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in order to replenish energy reserves Life History moving from the Basin and Mojave and continue their northward or Flycatchers are believed to exist and Recovery Units to the Lower Colorado southward migration (Finch et al. 2000, interact as groups of metapopulations Recovery Unit and from the Lower pp. 71, 78, and 79; Service 2002, pp. E– (Service 2002, p. 72). A metapopulation Colorado Recovery Unit to the Gila 3, 42). Migration stopover areas are is a group of geographically separate Recovery Unit. The USGS assimilated all of the likely critically important for flycatcher flycatcher breeding populations flycatcher movement information and productivity and survival (Sogge et al. connected to each other by immigration concluded that rapid colonization and 1997, p. 13; Yong and Finch 1997, p. and emigration (Service 2002, p. 72). increased metapopulation stability 253; Service 2002, pp. E–3, 19). Flycatcher populations are most stable could be accomplished by establishing where many connected sites or large Habitat breeding sites within 30 to 40 km (18 to populations exist (Service 2002, p. 72). 25 mi) of each other (Paxton et al. 2007, Metapopulation persistence or stability The flycatcher currently breeds in p. 4). Flycatchers at breeding sites areas from near sea level to over 2,600 is more likely to improve by adding configured in this way would be able to meters (m) (8,500 feet (ft)) (Durst et al. more breeding sites rather than adding regularly disperse to new breeding sites 2008, p. 14) in vegetation alongside more territories to existing sites (Service or move between known breeding sites , streams, or other wetlands 2002, p. 72). This would distribute birds within the same year or from year-to- (riparian habitat). It establishes nesting across a greater geographical range, year. This proximity of sites would territories, builds nests, and forages minimize risk of simultaneous increase the connectivity and stability of where mosaics of relatively dense and catastrophic population loss, and avoid the metapopulation and smaller, more expansive growths of trees and shrubs genetic isolation (Service 2002, p. 72). distant breeding sites. are established, near or adjacent to Flycatchers have higher site fidelity surface water or underlain by saturated (to a local area) than nest fidelity (to a Recovery Planning (Sogge et al. 2010, p. 4). Habitat specific nest location) and can move Because the breeding range of the characteristics such as dominant plant among sites within stream drainages flycatcher encompasses a broad species, size and shape of habitat patch, and between drainages (Kenwood and geographic area with much site tree canopy structure, vegetation height, Paxton 2001, pp. 29–31). Within- variation, the Recovery Plan divides the and vegetation density vary widely drainage movements are more common flycatcher’s range into six Recovery among breeding sites. Nests are than between-drainage movements Units, each of which are further typically placed in trees where the plant (Kenwood and Paxton 2001, p. 18). subdivided into four to seven growth is most dense, where trees and Juvenile flycatchers were the group of Management Units (for a total of 32 shrubs have vegetation near ground flycatchers that moved (dispersed) the Management Units) (Service 2002, pp. level, and where there is a low-density farthest to new and distant breeding 61–63). This provides an organizational canopy. Some of the more common tree sites from the area where they hatched strategy to ‘‘characterize flycatcher and shrub species currently known to (Paxton et al. 2007, p. 74). The USGS’s populations, structure recovery goals, comprise nesting habitat include 10-year flycatcher study in central and facilitate effective recovery actions Gooddings willow (Salix gooddingii), Arizona (Paxton et al. 2007, entire) is that should closely parallel the physical, coyote willow (Salix exigua), Geyer’s the key movement study that has biological, and logistical realities on the willow (Salix geyeriana), arroyo willow generated these conclusions, augmented ground’’ (Service 2002, p. 61). Recovery (Salix lasiolepis), red willow (Salix by other flycatcher banding and re- Units are defined based on large laevigata), yewleaf willow (Salix sighting studies (Sedgwick 2004, p. watershed and hydrologic units. Within taxifolia), boxelder (Acer negundo), 1103; McLeod et al. 2008, p. 110). each Recovery Unit, Management Units tamarisk (also known as saltcedar, The difference in flycatcher dispersal are based on watershed or major Tamarix ramosissima), and Russian distance among different study areas drainage boundaries at the Hydrologic and regions reflects the varying spatial olive (Elaeagnus angustifolia) (Service Unit Code Cataloging Unit level arrangement of breeding habitat, 2002, p. D–2). While there are (standard watershed boundaries which illustrating how dispersal tendencies are exceptions, generally flycatchers are not have already been defined for other influenced by the geographic found nesting in areas without willows, purposes). The ‘‘outer’’ boundaries of distribution of habitat at the stream some Recovery Units and Management tamarisk, or both. segment, drainage, and landscape scales Units were defined by the flycatcher’s Use of riparian habitats along major (Paxton et al. 2007, p. 75). While range boundaries. Recovery goals are drainages in the Southwest during USGS’s study focused its effort in recommended for 29 of the 32 migration has been documented (Sogge central Arizona at two of the largest Management Units, and this designation et al. 1997, pp. 3–4; Yong and Finch breeding sites, it also included multiple of critical habitat is organized 1997, p. 253; Johnson and O’Brien 1998, auxiliary sites (up to 444 km (275 mi) geographically within these Recovery p. 2; McKernan and Braden 1999, p. 17; away), along with other researchers and Units and Management Units (see Koronkiewicz et al. 2004, pp. 9–11). surveyors across the flycatcher’s range ‘‘Methodology Overview’’ section Many of the willow flycatchers found paying attention to whether flycatchers below). migrating are detected in riparian were banded or not. As a result, the The Service’s 2002 Recovery Plan habitats or patches (small areas of broad scope of the study of flycatcher provides reasonable actions riparian vegetation) that would be movement extends broadly beyond a recommended to recover the flycatcher unsuitable for nest placement (the localized, regional area, where habitat and provides two criteria, either of vegetation structure is too short or configuration dominates the results. which can be met, in order to consider sparse, or the patch of vegetation is too Banded flycatchers from season to downlisting the species to threatened small). In these drainages, migrating season (and sometimes within season) (Service 2002, pp. 77–78). The first flycatchers may use a variety of riparian were recorded moving from 50 m (150 alternative for downlisting requires habitats, including ones dominated by feet) to 444 km (275 mi) to try to nest. reaching a total population of 1,500 native or exotic plant species, or Some long-distance season-to-season flycatcher territories geographically mixtures of both (Service 2002, p. E–3). movement records captured flycatchers distributed among all Recovery Units

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and maintained for 3 years with habitat Summary of Changes From Proposed areas total approximately 900.2 ha protections (Service 2002, pp. 77–78). Rule (2,224.5 ac), and they do not represent Habitat protections include a variety of In developing the final revised areas that currently have or can develop options such as habitat conservation flycatcher critical habitat designation, flycatcher habitat. As a result, we plans (HCPs), conservation easements, we reviewed public comments received determined that these locations were or safe harbor agreements. The second on the proposed August 15, 2011 (76 FR not essential for flycatcher conservation alternative approach for downlisting 50542), revision to critical habitat and and do not include them in this final calls for reaching a population of 1,950 the draft economic analysis, draft revised critical habitat designation. (4) In Arizona, in response to territories also strategically distributed environmental assessment, and comments, we reevaluated information among all Recovery and Management proposed revisions document made through maps, reports, and site-specific Units for 5 years without additional available to the public published on July knowledge about the proposed segments habitat protection (Service 2002, pp. 77– 12, 2012 (77 FR 41147). We also of the San Francisco River in the San 78). conducted further evaluation of lands Francisco Management Unit (76 FR In order to delist this flycatcher proposed as critical habitat; refined our 50542, August 15, 2011, p. 50576). This subspecies (to remove it from the List of mapping methodologies; and excluded evaluation resulted in determining that Endangered and Threatened Wildlife), areas from the final designation a 2.7-km (1.7-mi) segment of the San the Recovery Plan recommends that a pursuant to section 4(b)(2) of the Act (16 Francisco River at Luna Lake, Arizona, minimum of 1,950 territories are U.S.C. 1531 et seq.). We are making the which we proposed for designation, following changes to the final rule from geographically distributed among all does not contain the essential physical the proposed August 15, 2011, revision Recovery and Management Units, and or biological features of flycatcher and subsequent July 12, 2012, that twice the amount of habitat is habitat, and it does not appear to have document. provided to maintain these territories the ability to develop into flycatcher over time. Second, these habitats must Proposed Areas Removed From Final nesting habitat. The habitat surrounding be protected from threats to assure Designation Luna Lake is comprised of cattails and maintenance of these populations and meadow grasses, and a narrow section (1) We excluded a number of river of stream downstream from the lake habitat for the foreseeable future segments and reservoir bottoms under through development and primarily consists of conifers. As a section 4(b)(2) of the Act that we result, we determined that this portion implementation of conservation identified as being considered for of the San Francisco River was not management agreements (Service 2002, exclusion in the proposed rule (see essential for flycatcher conservation and pp. 79–80). Third, all of these delisting Exclusions section below). In this final do not include it in this final revised criteria must be accomplished and their rule, we did not exclude every area that critical habitat designation. effectiveness demonstrated for a period was identified in the proposed rule as (5) In Arizona, in response to of 5 years (Service 2002, pp. 79–80). being considered for exclusion. For a comments, we reevaluated This critical habitat designation is complete discussion and analysis of approximately 6.8 ha (16.8 ac) of land structured to allow the Service to work areas excluded and an explanation of within the proposed segment along toward achieving the numerical, the basis for exclusion see the Pinal Creek, representing about 4 geographical, and habitat-related Exclusions section. This is the primary percent of the land outside of the recovery goals. source of reduction in the total Freeport McMoRan (FMC) administered Twice the amount of suitable habitat designated critical habitat area Pinal Creek Management Area. These is needed to support the numerical compared to what we identified in the lands are located primarily at the proposal. territory goals because the long-term perimeter of the floodplain and end of (2) In California, based on information persistence of flycatcher populations the proposed segment. Because of their received from public comments, we cannot be assured by protecting only placement, these lands provide limited reviewed maps and reports and those habitats in which flycatchers value for the flycatcher outside of the reevaluated Little Tujunga Creek in the currently breed (Service 2002, p. 80). It conservation area. As a result, we Santa Clara Management Unit. We determined that these disconnected is important to recognize that most discovered that the 2.2-km (1.4-mi) flycatcher breeding habitats are portions of the Pinal Creek floodplain segment of the Little Tujunga Creek is were not essential for flycatcher susceptible to future changes in site not essential for the flycatcher because conservation and do not include them hydrology (natural or human-related), it provides minimal habitat, in this final revised critical habitat human impacts such as development or metapopulation stability, and designation. fire, and natural catastrophic events prevention against catastrophic loss. As (6) In Nevada, we reevaluated the such as flood or drought (Service 2002, a result, we determined that it was not 17.3-km (10.8-mi) stream and other p. 80). Furthermore, as the vegetation at essential for flycatcher conservation and bodies of water in Pahranagat Valley sites matures, it can lose the structural did not include it in this final revised (hereinafter referred to as the Pahranagat characteristics that make it suitable for critical habitat designation. River in this final rule) proposed in the breeding flycatchers (Service 2002, p. (3) In California, we reevaluated Pahranagat National Wildlife Refuge 80). These and other factors can destroy mapped information and proposed (NWR) in the Pahranagat Management or degrade breeding sites, such that one critical habitat along the Santa Ana Unit (76 FR 50542, August 15, 2011, p. cannot expect any given breeding site to River within the Prado Basin in the 50570). Based on our reevaluation, we remain suitable in perpetuity (Service Santa Ana Management Unit (76 FR determined that the southern 13.7 km 2002, p. 80). Thus, it is necessary to 50542, August 15, 2011, pp. 50563– (8.5 mi) of this segment is not essential have additional suitable habitat 50564). We detected, through additional for flycatcher conservation. The habitat available to which flycatchers can analysis, several groundwater recharge along this segment consists of open readily move if displaced by such ponds and areas at, or below, the 154- water, marsh, wet meadow, alkali flats, habitat loss or change (Service 2002, p. m (505-ft) elevation line that will be and upland salt desert shrub. The water 80). subject to regular inundation. These along this segment is standing, is

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ephemeral, or has been channelized in land interspersed with Southern Ute portion meets the quantity of habitat ditches. These areas do not currently tribal land along the Los Pinos River and territories identified as essential for consist of riparian tree and shrub within the San Juan Management Unit this Management Unit (refer to our species and are unlikely to develop the that, upon further analysis, we do not Criteria Used To Identify Critical necessary vegetation for flycatcher consider critical habitat because they Habitat section). Therefore, we are not habitat in the future. As a result, we are not essential for flycatcher including this portion in the designation determined that these locations were conservation. At the perimeter of for this Management Unit. not essential for flycatcher conservation Southern Ute tribal lands along the Los More specifically, although the and do not include it in this final Pinos River, but outside of tribal segment contains some elements of the revised critical habitat designation. jurisdiction, are collectively about 2.7 physical or biological features of (7) In Nevada, within the Pahranagat intermittent river km (1.7 mi) of private flycatcher habitat along the reservoir Management Unit, we inaccurately lands. Additionally, at the southern end edge, the habitat features in the described the Key Pittman Wildlife Area of the Southern Ute Reservation, downstream portion are not essential to as a 6.3-km (3.9-mi) single stream approximately 1.2 km (0.8 mi) or less of flycatcher conservation because the segment along the Pahranagat River (76 scattered private land parcels occur. number of flycatcher territories and FR 50542, August 15, 2011, p. 50570) Individually, these parcels are at the amount of habitat in the farther and also inaccurately described the area perimeter of the floodplain, are small in upstream portion of this segment have we were considering for exclusion, size, and are not contiguous. already far exceeded the recovery goals under section 4(b)(2) of the Act, as a Collectively, they represent a small for this Management Unit. The recovery single 4.0-km (2.5-mi) segment (76 FR fraction of the area we considered for goals in this Management Unit are for 50542, p. 50583). The Key Pittman critical habitat along the Los Pinos 100 flycatcher territories, and the most Wildlife Area is more accurately River. As result of their small size and recent survey data from 2012 found 327 described as being comprised of two limited extent of habitat, we do not territories in this management unit separate stream segments, one 2.5 km consider these segments essential to (USBR 2012, p. 1). Only 33 of these (1.6 mi) long and the other 1.4 km (0.9 flycatcher conservation and do not territories occurred in the downstream mi) long. Between these two portions of include them in this final revised portion along Elephant Butte Reservoir. the Key Pittman Wildlife Area is a 2.4- critical habitat designation. Therefore, the upstream portion of the km (1.5-mi) segment of private land, (10) In Colorado, there are five small proposed segment within Socorro which consists of agricultural fields, parcels of BLM land on the Rio Grande County has about three times more and limited water and riparian habitat. in the San Luis Valley Management Unit flycatcher territories than the recovery Therefore, because of the lack of both that were included in the proposed goals for this management unit. As a flycatcher habitat and likelihood of critical habitat. The farthest upstream result, the lower portion of this segment, developing flycatcher habitat in the section is west of Del Norte and is 300 where reservoir inundation is more future, this area between the separate m (980 feet) long. The other four parcels likely, and flycatcher habitat may be portions of the Key Pittman Wildlife are south of Alamosa NWR near the less persistent over time, is not needed Area should not have been identified as Conejos and Costilla County border. The to reach recovery goals in this an essential area for flycatcher boundary of the first parcel does not management unit. This is consistent conservation, and we do not include it intersect with the river but is within the with other areas (such as the Roosevelt in our final critical habitat designation. lateral extent of proposed critical habitat Management Unit) where we used the We are excluding the two stream and constitutes 3.73 ha (9.21 ac). The numerical and habitat-related recovery segments on Key Pittman Wildlife Area second parcel is 135 m (443 feet) long. goals from the Recovery Plan, along under section 4(b)(2) of the Act (see The third parcel is 0.96 km (0.59 mi) with the current and previous number Exclusions section). long. The boundary of the fourth parcel of known flycatcher territories, to guide (8) In Colorado, we reevaluated also does not intersect the river but is the endpoints of critical habitat information about the habitat on the Los within the lateral extent of proposed segments along areas with large Pinos River in the San Juan critical habitat and constitutes 2.77 ha populations (see ‘‘Methodology Management Unit (76 FR 50542, August (6.85 ac). Because these five small, Overview,’’ ‘‘Areas with Large 15, 2011, p. 50571) through maps, scattered, and limited sections of habitat Populations’’). As a result, we have reports, and site visits (Ireland T. 2012, are not essential to flycatcher recovery, determined this downstream 31.4 km entire). We found that the northern 9.1- we do not include them in this final (19.5 mi) portion of the Rio Grande in km (5.6-mi) portion of the Los Pinos revised critical habitat designation. Elephant Butte Reservoir does not meet River is at a high elevation, with a steep (11) In New Mexico, in response to our criteria for, and, therefore, the stream slope, and the vegetation comments, we reevaluated information definition of, critical habitat for the composition is not consistent with about the Elephant Butte Reservoir flycatcher, and we have removed it from flycatcher habitat. The plant species portion of the proposed 211.8-km-km our final critical habitat designation. adjacent to this stream are mostly (131.6-mi) Rio Grande segment in the comprised of those not used by nesting Middle Rio Grande Management Unit Other Changes flycatchers (such as alders and conifers). (76 FR 50542, August 15, 2011). This (12) In California, after further Therefore, this segment does not evaluation resulted in our determination analysis of maps and using information currently consist of the riparian tree and that the downstream 31.4 km (19.5 mi) received during comments, we have shrub species used by flycatchers, and of the proposed segment within the made three revisions to the approximate it is unlikely to develop them in the active conservation pool of Elephant stream lengths along tribal lands within future. As a result, we determined that Butte Reservoir is not critical habitat. the San Diego Management Unit. These this portion of the Los Pinos River was The 31.4 km (19.5 mi) downstream lands were subsequently excluded from not essential for flycatcher conservation, portion of the proposed segment that is our final designation under section and do not include it in this final within the active storage pool of 4(b)(2) of the Act (see Exclusions revised critical habitat designation. Elephant Butte Reservoir is not section). (9) In Colorado, there is a collection necessary for the conservation of We incorrectly described the length of of checker-boarded parcels of private flycatcher, as the Unit without this the San Diego River occurring along the

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

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

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

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

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

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

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(Vitis arizonica), Virginia creeper riparian vegetation improvement extends out from larger patches) or (Parthenocissus quinquefolia), Siberian projects focus on the eradication or during migration for foraging, cover, and elm (Ulmus pumila), and walnut control of tamarisk. The implementation shelter (Sogge and Tibbitts 1994, p. 16; (Juglans hindsii) (Service 2002, pp. D– of these projects requires careful Sogge and Marshall 2000, p. 53). 3, D–5, D–9). Other species used by evaluation (see Special Management Therefore, based on the information nesting flycatchers may become known Considerations or Protections below) above, we identify a variety of riparian over time as more studies and surveys and success can rely on the tree and shrub species as essential occur. improvement of the physical or physical or biological features of Canopy density (the amount of cover biological features included in this flycatcher habitat. Typically, dense provided by tree and shrub branches determination associated with river flow expansive riparian forests provide measured from the ground) at various and groundwater (Service 2002, habitat to place nests. Riparian nest sites ranged from 50 to 100 percent Appendices H and K). vegetation of broader quality, with a (Service 2002, p. D–3). Flycatcher Flycatchers have been recorded mosaic of open spaces, typically breeding habitat can be generally nesting in patches as small as 0.1 ha surround locations to place nests or organized into three broad habitat (0.25 ac) along the Rio Grande, and as along river segments and provide types—those dominated by native large as 70 ha (175 ac) in the upper Gila vegetation for foraging, perching, vegetation (typically willow), by exotic River, New Mexico (Service 2002, p. dispersal, and migration, and habitat (nonnative) vegetation (typically salt 17). The mean reported size of that can develop into nesting areas cedar), and those with mixed native and flycatcher breeding patches was 8.6 ha through time. those dominated by exotic plants (21.2 ac), with the majority of sites Primary Constituent Elements for (typically salt cedar and willow). toward the smaller end, as evidenced by Flycatcher These broad habitat descriptors reflect a median patch size of 1.8 ha (4.4 ac) the fact that flycatchers inhabit riparian (Service 2002, p. 17). Mean patch size Under the Act and its implementing habitats dominated by both native and of breeding sites supporting 10 or more regulations, we are required to identify nonnative plant species. Salt cedar and flycatcher territories was 24.9 ha (62.2 the physical or biological features Russian olive are two exotic plant ac). Aggregations of occupied breeding essential to flycatcher conservation in species used by flycatchers for nest patches within a breeding site may areas occupied at the time of listing, placement and also foraging and shelter create a riparian mosaic as large as 200 focusing on the features’ primary (Service 2002, p. D–4). The riparian ha (494 ac), such as areas like the Kern constituent elements. Primary patches used by breeding flycatchers River (Whitfield 2002, p. 2), Alamo constituent elements are those specific vary in size and shape (Service 2002, p. Lake, Roosevelt Lake (Paradzick et al. elements of the physical or biological D–2). They may be relatively dense, 1999, pp. 6–7), and Lake Mead features that provide for a species’ life- linear, contiguous stands or irregularly- (McKernan 1997, p. 13). history processes and are essential to shaped mosaics of dense vegetation Flycatchers can cluster their the conservation of the species. with open areas (Service 2002, pp. D– territories into small portions of riparian Based on our current knowledge of 2–D–11). sites (Whitfield and Enos 1996, p. 2; the physical or biological features and Flycatchers use tamarisk (or salt Sogge et al. 1997, p. 24), and major habitat characteristics required to cedar) and Russian olive for nest portions of the site may only be used sustain the species’ life-history placement, foraging, roosting, cover, briefly or not at all in any given year. processes, we determine that the migration, and dispersal. Fewer than Habitat modeling based on remote primary constituent elements specific to half (44 percent) of the known sensing and electronic Geographic the flycatcher are: flycatcher territories occur in habitat Information System (GIS) data has (1) Primary Constituent Element 1— patches that are greater than 90 percent found that breeding site occupancy at Riparian vegetation. Riparian habitat native vegetation in composition (Durst reservoir sites in Arizona is influenced along a dynamic river or lakeside, in a et al. 2008, p.15). About 50 percent of by vegetation characteristics of habitat natural or manmade successional all known flycatcher territories are adjacent to the actual nesting areas environment (for nesting, foraging, located at breeding sites that include (Hatten and Paradzick 2003, pp. 774, migration, dispersal, and shelter) that is mixtures of native and exotic plant 782); therefore, areas adjacent to nest comprised of trees and shrubs (that can species (mostly tamarisk) (Durst et al. sites can be an important component of include Gooddings willow, coyote 2008, p.15). In many of these areas, a breeding site. How size and shape of willow, Geyer’s willow, arroyo willow, exotic plant species are significant riparian patches relate to factors such as red willow, yewleaf willow, pacific contributors to the habitat structure by flycatcher nest-site selection and willow, boxelder, tamarisk, Russian providing the dense lower strata fidelity, reproductive success, olive, buttonbush, cottonwood, stinging vegetation that flycatchers prefer (Durst predation, and brood parasitism is nettle, alder, velvet ash, poison et al. 2008, p.15). A USGS comparative unknown (Service 2002, p. D–11). hemlock, blackberry, seep willow, oak, study (Sogge et al. 2005, p. 1) found no With only some exceptions, rose, sycamore, false indigo, Pacific difference in flycatcher physiology, flycatchers are generally not found poison ivy, grape, Virginia creeper, immunology, site fidelity, productivity, nesting in confined floodplains Siberian elm, and walnut) and some or survivorship between flycatchers (typically those bound within a narrow combination of: nesting in tamarisk-dominated habitat canyon) (Hatten and Paradzick 2003, p. (a) Dense riparian vegetation with versus native-dominated habitats. 780) or where only a single narrow strip thickets of trees and shrubs that can Tamarisk habitats vary with respect to of riparian vegetation less than range in height from about 2 to 30 m suitability for breeding flycatchers approximately 10 m (33 ft) wide (about 6 to 98 ft). Lower-stature thickets across their range, just as do native develops (Service 2002, p. D–11). While (2 to 4 m or 6 to 13 ft tall) are found habitats (Sogge et al. 2005, p.1). While riparian vegetation too mature, too at higher elevation riparian forests and the literature refutes or questions the immature, or of lesser quality in tall-stature thickets are found at middle- negative environmental impacts of abundance and breadth may not be used and lower-elevation riparian forests; tamarisk (Glenn and Nagler 2005, pp. 1– for nesting, it can be used by breeding (b) Areas of dense riparian foliage at 2; USGS 2010, pp. vi–xviii), many flycatchers for foraging (especially if it least from the ground level up to

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approximately 4 m (13 ft) above ground maintain metapopulation stability, denominations of 25. The goal for some or dense foliage only at the shrub or tree connectivity, and gene flow, and to Management Units may be as few as 25 level as a low, dense canopy; protect against catastrophic loss. All territories or as many as 325. (c) Sites for nesting that contain a river segments designated as flycatcher With this designation of critical dense (about 50 percent to 100 percent) critical habitat are either: (1) Within the habitat, we intend to identify the tree or shrub (or both) canopy (the known range of the subspecies, physical or biological features essential amount of cover provided by tree and representing areas known to be to the conservation of the species, shrub branches measured from the occupied at the time of listing; or (2) through the identification of the ground); essential areas for the conservation of features’ primary constituent elements (d) Dense patches of riparian forests the species not known to be occupied by sufficient to support the life-history that are interspersed with small the flycatcher at the time of listing, but processes of the species. openings of open water or marsh or now may or may not be known to have areas with shorter and sparser Special Management Considerations or flycatchers present. These areas contain Protections vegetation that creates a variety of at least one the primary constituent habitat that is not uniformly dense. elements of the physical or biological When designating critical habitat, we Patch size may be as small as 0.1 ha features essential for the conservation of assess whether the specific areas within (0.25 ac) or as large as 70 ha (175 ac). the subspecies. It is important to the geographical area occupied by the (2) Primary Constituent Element 2— recognize that the primary constituent species at the time of listing contain Insect prey populations. A variety of elements such as riparian vegetation features that are essential to the insect prey populations found within or with trees and shrubs of a certain type conservation of the species and which adjacent to riparian floodplains or moist and insect prey populations are present may require special management considerations or protection. environments, which can include: flying throughout the river segments selected, As mentioned briefly or referenced in ants, wasps, and bees (Hymenoptera); but the specific quality of riparian dragonflies (Odonata); flies (Diptera); this rule, the flycatcher and its habitat habitat for nesting (which involve are threatened by a multitude of factors true bugs (Hemiptera); beetles elements such as specific configuration (Coleoptera); butterflies, moths, and occurring at once. Threats to those of riparian foliage, sites for nesting, and features that define critical habitat caterpillars (Lepidoptera); and interspersion of small openings), spittlebugs (Homoptera). (elements of physical or biological migration, foraging, and shelter will not features) are caused by various factors. With this critical habitat designation, remain constant in condition or location we intend to identify the physical or We believe the essential features within over time due to succession (plant the critical habitat areas will require biological features essential to the germination and growth) and the conservation of the species, through the some level of management or protection dynamic environment in which they (or both) to address the current and identification of the features’ primary exist. constituent elements sufficient to future threats and maintain the quality, support the life-history processes of the In order to reach the goal of quantity, and arrangement of the species. conserving the subspecies by recovering elements of physical or biological an adequate geographical distribution features essential to flycatcher Physical or Biological Features and that represents ecological diversity of conservation. Primary Constituent Elements Summary the flycatcher populations, the Essential features in need of special The discussion above outlines those distribution and abundance of management occur not only at the physical or biological features essential flycatcher habitat and breeding immediate locations where the to flycatcher conservation and presents populations must improve across the 29 flycatcher may be present, but at our rationale as to why those features Management Units (see Background additional areas needed to reach were selected. The primary constituent section). The recovery goal is 1,950 recovery goals and areas that can elements described above are results of flycatcher territories geographically and provide for normal population the dynamic river or lakeside numerically distributed in the fluctuations and habitat succession that environment that germinates, develops, appropriate Management Units along may occur in response to natural and maintains, and regenerates the riparian with twice the habitat needed to unpredictable events. The flycatcher forest and provides food for breeding, maintain these territories (see may be dependent upon habitat non-breeding, dispersing, territorial, and Background section). Also, these areas components beyond the immediate migrating flycatchers. must hold these populations for a areas where individuals of the species Anthropogenic factors such as dams, number of years and be protected occur if they are important in irrigation ditches, or agricultural field through conservation agreements or maintaining ecological processes such return flow can assist in providing or other means. The most recent rangewide as hydrologic regimes; plant mimicking the conditions that support flycatcher assessment estimated that germination, growth, maintenance, and flycatcher habitat. In regulated there were about 1,300 flycatcher regeneration (succession); environments, riparian vegetation territories (Durst et al. 2008, p. 13). The sedimentation; groundwater elevations; improvement projects associated with Lower Colorado, Upper Colorado, and plant health and vigor; or maintenance planting, irrigation, and cultivation may Basin and Range Recovery Units need of prey populations. also require manual manipulation to the most growth in known territories The designation of critical habitat maintain suitability over the long term. and habitat to reach recovery goals. does not imply that lands outside of Because the flycatcher exists in While there is still great variance in the critical habitat do not play an important disjunct breeding populations across a known number of territories within the role in flycatcher conservation. Federal wide geographic and elevation range Coastal California, Gila, and Rio Grande activities outside of critical habitat are and its habitat is subject to dynamic Recovery Units, these areas are closer in still subject to review under section 7 of events (such as flooding and drying), the number of territories and amount of the Act if they may affect the flycatcher quantity and spatial arrangement of habitat to the established recovery goals. or its critical habitat (such as critical habitat river segments described The numeric territory goals established groundwater pumping, developments, below are essential for the flycatcher to per Management Unit are in watershed condition). Prohibitions of

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

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

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

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

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

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

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within the 100-year floodplain. We designated stream segments occur in and Santa Maria Rivers (including created these boundaries from existing California, Nevada, Utah, Colorado, upper Alamo Lake), Arizona. digital sources and visual interpretation. Arizona and New Mexico and include a Upper Colorado Recovery Unit in Overall, these designated stream total of approximately 1,975 km (1,227 Arizona, Utah, Colorado, and New segments represent flycatcher habitat mi) of streams. The following list Mexico known to be occupied at the time of represents the names of the portions of listing and essential areas that have high streams that are being designated as (13) San Juan Management Unit—Los recovery value. The designated areas flycatcher critical habitat organized by Pinos River, Colorado; San Juan River support stable and growing breeding Recovery and Management Unit. In (north bank), Utah. populations, provide migration stopover order to help further understand the (14) Powell Management Unit—Paria areas, protect against simultaneous location of these designated stream River, Utah. catastrophic loss, maintain gene flow, segments, please see the associated Gila Recovery Unit in Arizona and New prevent isolation and extirpation, and maps found within the Regulation Mexico encourage colonizers to use new areas. Promulgation section of this final rule. All stream segments provide habitat for (15) Verde Management Unit—Verde Coastal California Recovery Unit in a wide distribution of flycatcher River, Arizona. California territories, including areas for (16) Roosevelt Management Unit— population growth to meet numerical (1) Santa Ynez Management Unit— Salt River and Tonto Creek, Arizona. and habitat-related recovery goals. The Santa Ynez River and Mono Creek. (17) Middle Gila and San Pedro designated areas also support other (2) Santa Clara Management Unit— Management Unit—Gila River and San important flycatcher needs such as Santa Clara River, Ventura River, Piru Pedro River, Arizona. migration, dispersal, foraging, and Creek, Castaic Creek, Big Tujunga (18) Upper Gila Management Unit— shelter to reach the geographic Canyon, and San Gabriel River. Gila River in Arizona and New Mexico. distribution and habitat-related recovery (3) Santa Ana Management Unit— (19) Santa Cruz Management Unit— goals. Bear Creek, Mill Creek, Oak Glen Creek, Santa Cruz River, Empire Gulch, and We are designating as critical habitat San Timoteo Creek, Santa Ana River Cienega Creek, Arizona. lands that we have determined were (including portions of Prado Basin), (20) San Francisco Management occupied at the time of listing and Waterman Creek, and Bautista Creek. Unit—San Francisco River, Arizona and contain sufficient elements of physical (4) San Diego Management Unit— New Mexico. or biological features to support life- Santa Margarita River, DeLuz Creek, San (21) Hassayampa and Agua Fria history processes essential for the Luis Rey River, Pilgrim Creek, Agua Management Unit—Hassayampa River, conservation of the species (as defined Hedionda Creek, Santa Ysabel Creek, Arizona. under section 3(5)(A)(i) of the Act), and Temescal Creek, Temecula Creek, Rio Grande Recovery Unit in New lands outside of the geographical area Sweetwater River, and San Diego River. Mexico and Colorado occupied at the time of listing that we Basin and Mojave Recovery Unit in have determined are essential for (22) San Luis Valley Management California and Nevada flycatcher conservation (as defined Unit—Conejos River and Rio Grande, under section 3(5)(A)(ii) of the Act). The (5) Kern Management Unit—South Colorado. occupied stream segments are Fork Kern River (including upper Lake (23) Upper Rio Grande Management designated based on sufficient elements Isabella) and Canebrake Creek, Unit—Coyote Creek, Rio Grande, Rio of physical or biological features being California. Grande del Rancho, and Rio Fernando, present to support flycatcher life (6) Mojave Management Unit—Deep New Mexico. processes. Some segments contain all of Creek, Holcomb Creek, Mojave River, (24) Middle Rio Grande Management the identified elements of physical or and West Fork Mojave River, California. Unit—Rio Grande, New Mexico. biological features and support multiple (7) Salton Management Unit—San Table 1 below lists all the streams life processes. Some segments contain Felipe Creek and Mill Creek, California. included in this revised designation and only some elements of the physical or (8) Amargosa Management Unit— whether they are considered occupied at biological features necessary to support Willow Creek, California; Amargosa the time of listing and whether they are the flycatcher’s particular use of that River, California and Nevada; and five currently considered occupied. habitat. separate riparian areas within Ash We note which streams were within Meadows National Wildlife Refuge, the geographical area known to be Final Critical Habitat Designation Nevada. occupied at time of listing, based upon We are designating stream segments our criteria (1991–1994), and are in 24 Management Units found in six Lower Colorado Recovery Unit in therefore being designated under section Recovery Units as flycatcher critical Nevada, California and Arizona Border, 3(5)(A)(i) of the act because they contain habitat. Following our evaluation and Arizona, Utah, and New Mexico essential physical or biological features analysis under section 4(b)(2) of the Act, (9) Little Colorado Management that require special management or stream segments in five Management Unit—Little Colorado River and West protections. Streams not known to be Units (Owens, Middle Colorado, Hoover Fork Little Colorado River, Arizona. occupied at the time of listing are being to Parker Dam, Parker Dam to Southerly (10) Virgin Management Unit—Virgin designated as critical habitat under International Border, and Lower Rio River, Nevada, Arizona, and Utah. section 3(5)(A)(ii) of the act because Grande Management Units) where (11) Pahranagat Management Unit— they are essential for the conservation of recovery goals occur and critical habitat Pahranagat River, Nevada. the species. We also note which streams was proposed were excluded in their (12) Bill Williams Management Unit— have had flycatcher territories detected entirety (see Exclusions section). The Big Sandy River, Bill Williams River, between 1991 and 2010.

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TABLE 1—PORTION OF STREAMS DESIGNATED FOR FLYCATCHER CRITICAL HABITAT

Known to be occupied at Territories de- Recovery unit Management unit Portion of streams time of listing tected (1991– (1991–1994) 2010)

Coastal California ...... Santa Ynez ...... Mono Creek ...... No No. Santa Ynez River ...... Yes Yes. Santa Clara ...... Big Tujunga Canyon ...... No No. 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 Creek ...... No Yes. DeLuz Creek ...... No Yes. Pilgrim Creek ...... Yes Yes San Diego River ...... No Yes. San Luis Rey River ...... Yes Yes. Santa Margarita River ...... No Yes. Santa Ysabel Creek ...... No Yes. Sweetwater River ...... No Yes. Temecula Creek ...... No Yes. Temescal Creek ...... No No. Basin and Mojave ...... Kern ...... Canebrake Creek ...... No Yes. South Fork Kern River ...... Yes Yes. Mohave ...... Deep Creek ...... No No. West Fork Mojave River ...... No No. 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 Riparian Areas ...... No Yes. Lower Colorado ...... Little Colorado ...... Little Colorado River ...... Yes Yes. West Fork Little Colorado River .... No No. Virgin ...... Virgin River ...... No Yes. Pahranagat ...... Pahranagat River ...... No Yes. Bill Williams ...... Big Sandy River ...... Yes Yes. Bill Williams River ...... Yes Yes. 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 ...... San Pedro River ...... Yes Yes. 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 River ...... Yes Yes. Hassayampa and Agua Fria ...... Hassayampa River ...... No Yes. 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 Rancho ...... Yes Yes. Middle Rio Grande ...... Rio Grande ...... Yes Yes.

Approximate land ownership in each habitat occurs is provided below in State where the designated critical 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)

State Federal State Private Other/Unclassified Total

AZ ...... 365 (227); 9,869 50 (31); 3,012 (7,443) ... 369 (229); 19,436 0 (0); 0 (0) ...... 784 (487); 32,317 (24,387). (48,026). (79,856). CA ...... 188 (117); 2,688 (6,642) 26 (16); 619 (1,529) ...... 78 (48); 1,089 (2,692) ... 316 (196); 11,470 609 (378); 15,866 (28,342). (39,205). CO ...... 43 (27); 4,063 (10,040) 0 (0); 0 (0) ...... 7 (5); 221 (547) ...... 0 (0); 0 (0) ...... 51 (31); 4,284 (10,586). NV ...... 29 (18); 1,451 (3,584) ... 7 (4); 649 (1,603) ...... 19 (12); 1,383 (3,416) ... 0 (0); 0 (0) ...... 54 (34); 3,482 (8,603). NM ...... 125 (78); 6,318 (15,613) 29 (18); 4,780 (11,812) 248 (154); 14,817 0 (0); 0 (0) ...... 402 (250); 25,916 (36,613). (64,039). UT ...... 41 (25); 1,544 (3,816) ... 0 (0); 15 (38) ...... 35 (22); 1,146 (2,831) ... 0 (0); 0 (0) ...... 76 (47); 2,705 (6,685).

Total ...... 791 (492); 25,933 112 (69); 9,075 (22,424) 756 (470); 38,091 316 (196); 11,470 1,975 (1,227); 84,569 (64,082). (94,125). (28,342). (208,973). Notes: No tribal lands were included in the final revised designation. Totals do not sum because some stream segments have different owner- ship 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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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we are designating a 0.4-km (0.2-mi) downstream of the power-line crossing habitat, through development and segment of the Rio Fernando that is is included within the designation). protection of habitat and water located about 3.2 km (2.0 mi) upstream This Rio Grande segment was transaction agreements, we are from the Rio Lucero confluence. identified as having substantial recovery excluding this segment from the final Rio Grande, Rio Grande del Rancho, value in the Recovery Plan (Service designation of revised flycatcher critical and Coyote Creek were identified within 2002, p. 92). This segment of the Rio habitat under section 4(b)(2) of the Act this Management Unit as having Grande is anticipated to provide (see Exclusions section below). substantial recovery value in the flycatcher habitat for metapopulation Recovery Plan (Service 2002, p. 92). stability, gene connectivity through this Effects of Critical Habitat Designation These three segments, along with the portion of the flycatcher’s range, Section 7 Consultation essential Rio Fernando segment, are protection against catastrophic Section 7(a)(2) of the Act requires anticipated to provide flycatcher habitat population loss, and population growth Federal agencies, including the Service, for metapopulation stability, gene and colonization potential. As a result, to ensure that any action they fund, connectivity through this portion of the this river segment and associated authorize, or carry out is not likely to flycatcher’s range, protection against flycatcher habitat are anticipated to jeopardize the continued existence of catastrophic population loss, and support the strategy, rationale, and population growth and colonization science of flycatcher conservation in any endangered species or threatened potential. As a result, these river order to meet territory and habitat- species or result in the destruction or segments and associated flycatcher related recovery goals. adverse modification of designated habitat are anticipated to support the critical habitat of such species. In Lower Rio Grande Management Unit, strategy, rationale, and science of addition, section 7(a)(4) of the Act New Mexico flycatcher conservation in order to meet requires Federal agencies to confer with territory and habitat-related recovery The Recovery Plan describes a goal of the Service on any agency action which goals. 25 flycatcher territories in the Lower Rio is likely to jeopardize the continued Due to the our partnership with the Grande Management Unit (Service 2002, existence of any species proposed to be Santa Clara, San Juan, and San Ildefonso p. 84). listed under the Act or result in the Pueblos and their conservation efforts There were no large flycatcher nesting destruction or adverse modification of on the Rio Grande, we are excluding populations in the lower Rio Grande proposed critical habitat. these pueblos from the final flycatcher Management Unit to help guide us Decisions by the 5th and 9th Circuit critical habitat designation under toward a critical habitat area. Therefore, Courts of Appeals have invalidated our section 4(b)(2) of the Act (see Exclusions to identify the areas that would regulatory definition of ‘‘destruction or section below). contribute to meeting recovery goals for adverse modification’’ (50 CFR 402.02) this Management Unit, we used (see Gifford Pinchot Task Force v. U.S. Middle Rio Grande Management Unit, information based on known flycatcher Fish and Wildlife Service, 378 F. 3d New Mexico territories and breeding sites, guidance 1059 (9th Cir. 2004) and Sierra Club v. The Recovery Plan describes a goal of from the Recovery Plan, and knowledge U.S. Fish and Wildlife Service et al., 245 100 flycatcher territories in the Middle about stream habitat to determine F.3d 434, 442 (5th Cir. 2001)), and we Rio Grande Management Unit (Service critical habitat segments that may be do not rely on this regulatory definition 2002, p. 85). essential for flycatcher conservation (see when analyzing whether an action is We identified a large flycatcher below). Between 1993 and 2007, three likely to destroy or adversely modify nesting population on the middle Rio breeding sites had been detected along critical habitat. Under the statutory Grande in Valencia and Socorro the lower Rio Grande in Sierra and Dona provisions of the Act, we determine Counties, New Mexico. Flycatcher Ana Counties, New Mexico, with the destruction or adverse modification on territories were first detected in this first territories found in 1993 (Sogge and the basis of whether, with Management Unit in 1993. In 2007, a Durst 2008). During this time period the implementation of the proposed Federal high of 230 territories were detected number of known flycatcher territories action, the affected critical habitat (Sogge and Durst 2008), and since then detected annually fluctuated between would continue to serve its intended the population has grown to about 350 zero and eight (Sogge and Durst 2008). conservation role for the species. territories (Moore and Ahlers 2010, p. However, in 2011 the number of If a Federal action may affect a listed 1). The Rio Grande is within the territories detected within the Lower species or its critical habitat, the geographical area known to be occupied Rio Grande Management Unit increased responsible Federal agency (action by flycatchers at the time of listing, and due to improved survey effort (Service agency) must enter into consultation contains the physical or biological 2012, p. 32) and in 2012 is believed to with us. Examples of actions that are features essential for the conservation of have reached 25 territories (Hill, D. subject to the section 7 consultation the species which may require special 2012, pers. comm.). The Rio Grande is process are actions on State, tribal, management considerations or within the geographical area known to local, or private lands that require a protection, as described above. be occupied by flycatchers at the time Federal permit (such as a permit from We are designating as critical habitat of listing, and contains the physical or the Corps under section 404 of the Clean a 180.4-km (112.1-mi) segment of the biological features essential for the Water Act (33 U.S.C. 1251 et seq.) or a Rio Grande that extends from below conservation of the species which may permit from the Service under section Isleta Pueblo and the Bernalillo and require special management 10 of the Act) or that involve some other Valencia County line downstream past considerations or protection, as Federal action (such as funding from the Bosque del Apache and Sevilleta NWRs described above. Federal Highway Administration, and into the upper part of Elephant The lower Rio Grande, from Caballo Federal Aviation Administration, or the Butte Reservoir ending in Socorro Dam to Leasburg Dam (74.2 km, 46.1 Federal Emergency Management County about 3.2 km (2.0 mi) north of mi), was also proposed as critical Agency). Federal actions not affecting the Sierra County line, New Mexico habitat in this management unit. listed species or critical habitat, and (about 14.4 km, 9.0 mi of the upper part However, as a result of the commitment actions on State, tribal, local, or private of Elephant Butte Reservoir, to comprehensively manage flycatcher lands that are not federally funded or

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authorized, do not require section 7 Application of the ‘‘Adverse impoundment, groundwater pumping, consultation. Modification’’ Standard dam construction and operation, or any As a result of section 7 consultation, The key factor related to the adverse other activity which negatively changes we document compliance with the modification determination is whether, the frequency, magnitude, duration, requirements of section 7(a)(2) through with implementation of the proposed timing, or abundance of surface flow our issuance of: Federal action, the affected critical (and also subsurface groundwater (1) A concurrence letter for Federal habitat would continue to serve its elevation). These activities could actions that may affect, but are not intended conservation role for the permanently eliminate available likely to adversely affect, listed species species. Activities that may destroy or riparian habitat and food availability or or critical habitat; or adversely modify critical habitat are degrade the general suitability, quality, (2) A biological opinion for Federal those that alter the physical or structure, abundance, longevity, and actions that may affect and are likely to biological features to an extent that vigor of riparian vegetation and adversely affect, listed species or critical appreciably reduces the conservation microhabitat components necessary for habitat. value of critical habitat for the nesting, migrating, food, cover, and When we issue a biological opinion flycatcher. As discussed above, the role shelter. concluding that a project is likely to of critical habitat is to support life- (4) Actions that permanently destroy jeopardize the continued existence of a history needs of the species and provide or alter flycatcher habitat. Such listed species and/or destroy or for the conservation of the species. activities could include, but are not adversely modify critical habitat, we Section 4(b)(8) of the Act requires us limited to, discharge of fill material, provide reasonable and prudent to briefly evaluate and describe, in any draining, ditching, tiling, pond alternatives to the project, if any are proposed or final regulation that construction, and stream channelization identifiable, that would avoid the designates critical habitat, activities (due to roads, construction of bridges, likelihood of jeopardy and/or involving a Federal action that may impoundments, discharge pipes, destruction or adverse modification of destroy or adversely modify such stormwater detention basins, dikes, critical habitat. We define ‘‘reasonable habitat, or that may be affected by such levees, and others). These activities and prudent alternatives’’ (at 50 CFR designation. could permanently eliminate available 402.02) as alternative actions identified Activities that may affect critical riparian habitat and food availability or during consultation that: habitat, when carried out, funded, or degrade the general suitability, quality, (1) Can be implemented in a manner authorized by a Federal agency, should structure, abundance, longevity, and consistent with the intended purpose of result in consultation for the flycatcher. vigor of riparian vegetation and the action, These activities include, but are not microhabitat components necessary for (2) Can be implemented consistent limited to: nesting, migrating, food, cover, and with the scope of the Federal agency’s (1) Actions that would remove, thin, shelter. legal authority and jurisdiction, or destroy riparian flycatcher habitat, (5) Actions that result in alteration of (3) Are economically and without implementation of an effective flycatcher habitat from improper technologically feasible, and riparian habitat management plan livestock or ungulate management. Such (4) Would, in the Director’s opinion, resulting in the development of riparian activities could include, but are not avoid the likelihood of jeopardizing the vegetation of equal or better flycatcher limited to, unrestricted ungulate access continued existence of the listed species quality in abundance and extent. Such and use of riparian vegetation; excessive and/or avoid the likelihood of activities could include, but are not ungulate use of riparian vegetation destroying or adversely modifying limited to, removing, thinning, or during the non-growing season (i.e., leaf critical habitat. destroying riparian vegetation by drop to bud break); overuse of riparian Reasonable and prudent alternatives mechanical (mowing, cutting), chemical habitat and upland vegetation due to can vary from slight project (herbicides or burning), or biological insufficient herbaceous vegetation (low- modifications to extensive redesign or (grazing, biocontrol agents) means. growing, non-woody plants) available to relocation of the project. Costs These activities could reduce the livestock; and improper herding, water associated with implementing a amount or extent of riparian habitat development, or other livestock reasonable and prudent alternative are needed by flycatchers for sheltering, management actions. These activities similarly variable. feeding, breeding, and migrating. can reduce the volume and composition Regulations at 50 CFR 402.16 require (2) Actions that would appreciably of riparian vegetation, prevent Federal agencies to reinitiate diminish habitat value or quality regeneration of riparian plant species, consultation on previously reviewed through direct or indirect effects. Such physically disturb nests, alter floodplain actions in instances where we have activities could include, but are not dynamics, facilitate brood parasitism listed a new species or subsequently limited to, degradation of watershed and (laying eggs in flycatcher nests) by designated critical habitat that may be soil characteristics; diminishing river brown-headed cowbirds, alter affected and the Federal agency has surface and subsurface flow; negatively watershed and soil characteristics, alter retained discretionary involvement or altering river flow regimes; introduction stream shape, and facilitate the growth control over the action (or the agency’s of exotic plants, animals, or insects; or of flammable exotic plant species. discretionary involvement or control is habitat fragmentation from recreation Exemptions authorized by law). Consequently, activities. These activities could reduce Federal agencies sometimes may need to or fragment the amount or extent of Application of Section 4(a)(3) of the Act request reinitiation of consultation with riparian habitat needed by flycatchers The Sikes Act Improvement Act of us on actions for which formal for sheltering, feeding, breeding, and 1997 (Sikes Act) (16 U.S.C. 670a) consultation has been completed, if migrating. required each military installation that those actions with discretionary (3) Actions that would negatively alter includes land and water suitable for the involvement or control may affect the surface or subsurface river flow. conservation and management of subsequently listed species or Such activities could include, but are natural resources to complete an INRMP designated critical habitat. not limited to, water diversion or by November 17, 2001. An INRMP

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integrates implementation of the management; fish and wildlife habitat under section 101 of the Sikes Act (16 military mission of the installation with enhancement or modification; wetland U.S.C. 670a), if the Secretary determines stewardship of the natural resources protection, enhancement, and in writing that such plan provides a found on the base. Each INRMP restoration where necessary to support benefit to the species for which critical includes: fish and wildlife; and enforcement of habitat is proposed for designation.’’ (1) An assessment of the ecological applicable natural resource laws. We consult with the military on the needs on the installation, including the The National Defense Authorization development and implementation of need to provide for the conservation of Act for Fiscal Year 2004 (Pub. L. 108– INRMPs for installations with listed listed species; 136) amended the Act to limit areas species. We analyzed INRMPs (2) A statement of goals and priorities; eligible for designation as critical developed by military installations (3) A detailed description of habitat. Specifically, section 4(a)(3)(B)(i) located within the range of the critical management actions to be implemented of the Act (16 U.S.C. 1533(a)(3)(B)(i)) habitat designation for the flycatcher to to provide for these ecological needs; now provides: ‘‘The Secretary shall not determine if they meet the criteria for and designate as critical habitat any lands or exemption from critical habitat under (4) A monitoring and adaptive other geographical areas owned or section 4(a)(3) of the Act. The following management plan. controlled by the Department of areas are Department of Defense lands Among other things, each INRMP Defense, or designated for its use, that with completed, Service-approved must, to the extent appropriate and are subject to an integrated natural INRMPs within the proposed revised applicable, provide for fish and wildlife resources management plan prepared 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 Specific area definition of critical Areas exempted in unit habitat in km (mi) km (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 Naval Base INRMP shared boundary ...... 7.5 km (4.7 mi) ...... 7.5 km (4.7 mi). San Diego ...... Fallbrook Naval Base INRMP ...... 3.2 km (2.0 mi) ...... 3.2 km (2.0 mi).

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

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

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additional 7.5 km (4.7 mi) area shared flycatcher (Navy 2006, Chapter 3, pp. Exclusions with the adjacent Naval Weapons 110–112). Areas or habitat containing Application of Section 4(b)(2) of the Act Station Seal Beach—Detachment features essential to the conservation of Fallbrook (Fallbrook Naval Weapons flycatchers within the boundaries of Section 4(b)(2) of the Act states that Station) in this revised critical habitat Fallbrook Naval Weapons Station occur the Secretary shall designate and make designation because of this exemption. along portions of Pilgrim Creek and the revisions to critical habitat on the basis Naval Weapons Station Seal Beach– Santa Margarita River. of the best available scientific data after Detachment Fallbrook (Fallbrook Naval taking into consideration the economic Weapons Station)—San Diego The flycatcher primarily receives impact, national security impact, and Management Unit, California protection from activities at Fallbrook any other relevant impact of specifying Fallbrook Naval Weapons is the Naval Weapons Station because no any particular area as critical habitat. primary west coast supply point of training occurs on the installation. The The Secretary may exclude an area from ordnance for the U.S. Marine Corps and INRMP’s management and conservation critical habitat if he determines that the the large deck amphibious assault ships measures for the flycatcher consist of benefits of such exclusion outweigh the of the Pacific Fleet. Fallbrook Naval avoidance and minimization measures, benefits of specifying such area as part Weapons Station also has the only west applied to infrastructure development of the critical habitat, unless he coast maintenance facility for air- and maintenance to protect the determines, based on the best scientific launched missiles for the Pacific Fleet. flycatcher, that are part of the NEPA (42 data available, that the failure to The installation encompasses U.S.C. 4321 et seq.) approval process designate such area as critical habitat approximately 3,582 ha (8,852 ac) and is (Navy 2006, Chapter 3, pp. 110–112). will result in the extinction of the located within the southern foothills of The flycatcher also receives indirect species. In making that determination, the of northern protection through management and the statute on its face, as well as the San Diego County, adjacent to the conservation measures for the least legislative history are clear that the unincorporated community of Bell’s vireo such as: (1) Protection of Secretary has broad discretion regarding Fallbrook, California. It is bounded to flycatcher habitat through protection of which factor(s) to use and how much the north, west, and much of the south a subset of least Bell’s vireo priority weight to give to any factor. In considering whether to exclude a by MCB Camp Pendleton, with the management areas; (2) fencing that Santa Margarita River forming the particular area from the designation, we protects priority areas from cattle common border on the north between identify the benefits of including the grazing; (3) a Fire Management Plan that the two properties. Other than training area in the designation, identify the lands on MCB Camp Pendleton, provides a higher priority protection for benefits of excluding the area from the surrounding land use includes semi- riparian habitat, due to the limited designation, and evaluate whether the rural agricultural lands that include amount of riparian habitat on Fallbrook benefits of exclusion outweigh the plant nurseries, avocado and citrus Naval Weapons Station, such as core benefits of inclusion. If the analysis groves, vineyards, and limited urban areas of least Bell’s vireo and flycatcher indicates that the benefits of exclusion development. habitat; (4) consideration of prescribed outweigh the benefits of inclusion, the In the previous final critical habitat burns and livestock grazing as tools for Secretary may exercise his discretion to designation for flycatcher, we exempted the establishment of a buffer area exclude the area only if such exclusion Fallbrook Naval Weapons Station from between riparian habitat and would not result in the extinction of the the designation under section 4(a)(3)(B) shrublands; (5) timing and location species. of the Act because it was subject to an protections associated with prescribed When identifying the benefits of INRMP prepared under section 101 of burns; (6) assessment and mapping of inclusion for an area, we consider the the Sikes Act (16 U.S.C. 670a) that we riparian habitat to determine suitability additional regulatory benefits that area determined to provide a benefit to the for least Bell’s vireo occupation; and (7) would receive from the protection from flycatcher (70 FR 60886; October 19, implementation of nonnative vegetation adverse modification or destruction as a 2005). The INRMP was prepared to control measures, including removal of result of actions with a Federal nexus; assist installation staff and users in their Arundo donax (giant reed) (Navy 2006, the educational benefits of mapping efforts to support mission operations pp. 3–118). essential habitat for recovery of the and accommodate increased military listed species; and any benefits that may Based on the above considerations, mission requirements for national result from a designation due to State or and in accordance with section security and emergency homeland Federal laws that may apply to critical security, while meeting all 4(a)(3)(B)(i) of the Act, we have habitat. environmental compliance determined that conservation efforts The principal benefit of including an responsibilities. The INRMP also identified in the 2006 INRMP for area in a critical habitat designation is provides ecosystem-based management Fallbrook Naval Weapons Station the requirement for Federal agencies to to preserve, protect, and enhance provide a benefit to the flycatcher and ensure actions they fund, authorize, or natural resources on the installation, riparian habitat on the installation. carry out are not likely to result in the and provides the organizational support Therefore, lands subject to the INRMP destruction or adverse modification of and communication links necessary for for the Fallbrook Naval Weapons Station any designated critical habitat, the effective planning, implementation, and are exempt from critical habitat regulatory standard of section 7(a)(2) of administration of the installation’s designation under section 4(a)(3) of the the Act under which consultation is natural resources. The Fallbrook Naval Act. We are not including completed. Federal agencies must also Weapons Station completed its INRMP approximately 3.2 km (2.0 mi) of habitat consult with us on actions that may in 2006 (which was updated from an on Pilgrim Creek and portions of the affect a listed species to ensure their INRMP developed by the Naval Santa Margarita River that lie within the proposed actions are not likely to Ordnance Center Pacific Division in boundaries of the Fallbrook Naval jeopardize the continued existence of 1996) to address conservation and Weapons Station in this revised critical such species. The analysis of effects to management of its natural resources, habitat designation because of this critical habitat is a separate step and including conservation measures for the exemption. different standard from that of the

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

Santa Clara Management Unit

Newhall Land and Farm Conservation Easement ...... Santa Clara River ...... 4.4 (2.7)

Santa Ana Management Unit

Western Riverside County Multiple Species HCP ...... Santa Ana River ...... 30.0 (18.6) San Timoteo Creek ...... 21.4 (13.3) Bautista Creek (two segments) ...... 3.1 (1.9) Temecula Creek (see San Diego Management Unit). Ramona Band of Cahuilla Partnership ...... Bautista Creek ...... 0.4 (0.3)

San Diego Management Unit

San Diego County Multiple Species HCP ...... San Dieguito River ...... 9.2 (5.7) San Diego River ...... 9.6 (6.0) Santa Ysabel Creek (upper) ...... 2.4 (1.5) Santa Ysabel Creek (lower) ...... 1.1 (0.7) Sweetwater River ...... 2.1 (1.3) Western Riverside County Multiple Species HCP ...... Temecula Creek (including Vail Lake) ...... 18.7 (11.6) Orange County Southern Subregional HCP ...... Can˜ada Gobernadora Creek ...... 4.7 (2.9) City of Carlsbad Habitat Management Plan ...... Agua Hedionda Creek (two segments) ...... 3.2 (2.0) 2.1 (1.3)

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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—Continued

Approximate stream length Management unit and basis for exclusion Streams segments excluded excluded in km (mi)

La Jolla Band of Luisen˜o Indians Management Plan ...... San Luis Rey River ...... 11.6 (7.2) Rincon Band of Luisen˜o Mission Indians Management Plan .... San Luis Rey River ...... 4.3 (2.7) Pala Band of Luisen˜o Mission Indians Partnership ...... San Luis Rey River 6.9 km (4.3 mi) segment plus four sepa- 8.3 (5.2) rate nearby parcels totaling an additional 1.4 km (0.9 mi). The Barona and Viejas Groups of Capitan Grande Band of San Diego River ...... 0.9 (0.6) Diegueno Mission Indians Partnership.

Owens Management Unit

Los Angeles Department of Water and Power Management Owens River ...... 128.5 (79.8) Plan.

Kern Management Unit

Sprague Ranch Management Plan ...... South Fork Kern River (north side) ...... 4.0 (2.5) Hafenfeld Ranch Management Plan ...... South Fork Kern River (south side) ...... 0.30 (0.20)

Salton Management Unit

Iipay Nation of Santa Ysabel Partnership ...... San Felipe Creek ...... 1.6 (1.0)

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 Nation ...... Colorado River, including upper Lake Mead ...... 74.1 (46.0)

Pahranagat Management Unit

Key Pittman State Wildlife Area Management Plan ...... Pahranagat River (two segments) ...... 2.5 (1.6) 1.4 (0.9) Overton State Wildlife Area Management Plan ...... Muddy River ...... 3.1 (1.9)

Bill Williams Management Unit

LCR MSCP ...... Bill Williams River ...... 8.9 (5.6)

Hoover to Parker Dam Management Unit

LCR MSCP, including Fort Mojave and Chemehuevi Tribes .... Colorado River ...... 107.0 (66.4) LCR MSCP ...... Bill Williams River ...... 1.7 (1.0)

Parker Dam to Southerly International Border Management Unit

LCR MSCP, including Colorado River Indian Tribes and Colorado River (two segments) ...... 65.0 (40.4) Quechan (Fort Yuma) Indian Tribe. 148.0 (92.0)

San Juan Management Unit

Navajo Nation Management Plan ...... San Juan River (New Mexico) ...... 3.5 (2.2) San Juan River, (Utah)—43.5 km (27.0 mi) of south bank 51.6 (32.1) plus 8.1 km (5.1 mi) of both banks on eastern most portion of segment. Southern Ute Tribe Management Plan ...... Los Pinos River ...... 25.9 (16.1)

Verde Management Unit

Salt River Project Horseshoe and Bartlett Dams HCP ...... Verde River (Horseshoe Lake) ...... 9.6 (6.0) Yavapai-Apache Management Plan ...... Verde River (two segments) ...... 2.1 (1.3) 0.7 (0.4)

Roosevelt Management Unit

Salt River Project Roosevelt Lake HCP ...... Tonto Creek (Roosevelt Lake) ...... 12.8 (7.9) Salt River (Roosevelt Lake) ...... 16.3 (10.1) Freeport McMoRan Pinal Creek Management Plan ...... Pinal Creek ...... 5.8 (3.6)

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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—Continued

Approximate stream length Management unit and basis for exclusion Streams segments excluded excluded in km (mi)

Middle Gila and San Pedro Management Unit

San Carlos Apache Tribal Management Plan ...... San Pedro River (dispersed parcels) ...... 0.9 (0.6)

Upper Gila Management Unit

U-Bar Ranch Management Plan ...... Gila River (dispersed parcels) ...... 13.8 (8.6) San Carlos Apache Tribal Management Plan ...... Gila River ...... 31.3 (19.5) San Carlos Reservoir ...... Gila River (San Carlos Reservoir) ...... 26.8 (16.6)

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 Plan ...... Rio Grande ...... 7.7 (4.8) Santa Clara Pueblo Partnership ...... Rio Grande ...... 10.2 (6.4) San Juan Pueblo (Ohkay Owingeh) Partnership ...... Rio Grande ...... 9.3 (5.8)

Lower Rio Grande Management Unit

Elephant Butte Irrigation District Canalization and Conserva- Rio Grande ...... 74.2 (46.1) tion 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 specifying any particular area as critical impacts associated specifically with the areas within our proposed rule and habitat. In order to consider economic designation of critical habitat for the subsequent July 12, 2012, publication impacts, we prepared a draft economic species. The incremental conservation that we considered for exclusion under analysis of the entire proposed critical efforts and associated impacts are those section 4(b)(2) of the Act, but after habitat designation (which include areas not expected to occur absent the further analysis, we did not exclude we were considering for exclusion) and designation of critical habitat for the from this flycatcher critical habitat related factors (Industrial Economics species. In other words, the incremental revision. In some instances, we did not 2012, entire). costs are those attributable solely to the exclude an entire area we considered The intent of the final economic designation of critical habitat above and (Clark County HCP–Virgin River; Alamo analysis (FEA) is to quantify the beyond the baseline costs; these are the Lake State Wildlife Area–Big Sandy, economic impacts of all potential costs we consider in the final Santa Maria, and Bill Williams River; conservation efforts for the flycatcher; designation of critical habitat. The South Fork Kern River Wildlife Area– some of these costs will likely be analysis looks retrospectively at Kern River, including upper Lake incurred regardless of whether we baseline impacts incurred since the Isabella; and Elephant Butte Reservoir– designate critical habitat (baseline). The species was listed, and forecasts both Rio Grande) and in others, we did not economic impact of the final critical baseline and incremental impacts likely exclude a portion of the lands we habitat designation is analyzed by to occur with the designation of critical identified for consideration (Overton comparing scenarios both ‘‘with critical habitat. For a further description of the Wildlife Area–Virgin River, and habitat’’ and ‘‘without critical habitat.’’ methodology of the analysis, see Newhall Farm and Land–Santa Clara The ‘‘without critical habitat’’ scenario Chapter 2, ‘‘Framework for the River and Castaic Creek). Explanations represents the baseline for the analysis, Analysis,’’ of the economic analysis. for our conclusions can be found in the considering protections already in place The FEA also addresses how potential Summary of Comments and for the species (e.g., under the Federal economic impacts are likely to be Recommendations section of this final listing and other Federal, State, and distributed, including an assessment of rule. local regulations). The baseline, any local or regional impacts of habitat therefore, represents the costs incurred conservation and the potential effects of Exclusions Based on Economic Impacts regardless of whether critical habitat is conservation activities on government Under section 4(b)(2) of the Act, we designated. The ‘‘with critical habitat’’ agencies, private businesses, and consider the economic impacts of scenario describes the incremental individuals. The FEA measures lost

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

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excluded under section 4(b)(2) of the Lake Roosevelt; however, baseline a consultation under section 7 of the Act (see Exclusions section). economic impacts in these areas are Act; likely to be limited to $1.9 million over (2) There is a reasonable expectation Mining, and Oil and Gas Development 20 years. In addition, management that the conservation management In 2005, potential impacts to oil and activities at a picnic site in the San strategies and actions will be gas development were not identified as Bernardino National Forest results in implemented for the foreseeable future, a significant issue and thus were not present value baseline costs of $39,000. based on past practices, written considered in the previous economic A copy of the FEA with supporting guidance, or regulations; and analysis. However, proposed revised documents may be obtained by (3) The plan provides conservation critical habitat in the San Juan contacting the Arizona Ecological strategies and measures consistent with Management Unit in San Juan County, Service’s Office (see ADDRESSES) or by currently accepted principles of Utah, and La Plata County, Colorado, downloading from the Internet at http:// conservation biology. generated concern, because this area www.regulations.gov at Docket No. We believe that the following HCPs, serves as a highly developed source of FWS–R2–ES–2011–0053. plans, agreements, and partnerships oil and natural gas, with hundreds of fulfill the above criteria or otherwise existing wells. Due to the level of Exclusions Based on National Security provide benefits that outweigh the existing protections in riparian areas Impacts benefits from inclusion as critical required by, or agreed to by, oil and gas Under section 4(b)(2) of the Act, we habitat and are excluding these areas. We organize the following discussion of developers and land and resource consider whether there are lands owned exclusions below by Management Unit. managers, no project modification costs or managed by the Department of We will note below where a discussion are expected as a result of the Defense where a national security will occur if HCPs occur across multiple designation of revised flycatcher critical impact might exist. All Department of Management Units or we consolidate habitat. However, baseline Defense lands that met the definition of administrative costs of $33,000 for one multiple lands into a single discussion. flycatcher critical habitat were formal and six informal consultations exempted from designation (see Summary of Exclusions are expected due to limited oil and gas Exemptions section above). In addition activities, including seismic studies and Santa Clara Management Unit we found no other proposed areas that pipeline construction and maintenance. had national security impacts. Newhall Land and Farming Company In addition to baseline costs, the Consequently, the Secretary is not Natural River Management Plan analysis forecasts $11,000 in exercising his discretion to exclude any incremental administrative costs to Newhall Land and Farming Company areas from this final designation based consider adverse modification as part of (Newall LFC) has developed a Natural on impacts on national security. these consultations. River Management Plan (NRMP) While few active mineral mining Exclusions Based on Other Relevant (Valencia Company 1998, entire) for the activities occur within revised critical Impacts long-term conservation and habitat, the mining industry has management of the biological resources expressed concern that water use by Under section 4(b)(2) of the Act, we within their lands, including a portion existing or potential mining operations consider any other relevant impacts, in of the Santa Clara River (including the could be affected by flycatcher addition to economic impacts and Santa Clara- conservation activities, particularly the impacts on national security. We confluence) that we proposed as designation of critical habitat. There are consider a number of factors including flycatcher critical habitat. The Corps currently no data that indicate whether whether the landowners have developed and CDFG approved the NRMP in 1998. existing or future diversions of water for any HCPs or other management plans The NRMP provides management mining activities (including for the area, or whether there are measures designed to protect, restore, groundwater pumping) reduce stream conservation partnerships that would be monitor, manage, and enhance habitat flow or modify hydrologic conditions to encouraged by designation of, or for multiple species, including the the degree that adversely impacts the exclusion from, critical habitat. In flycatcher, that occur along the main flycatcher and its riparian habitat. As addition, we look at any tribal issues, stem of the Santa Clara River within the such, the analysis does not quantify the and consider the government-to- Santa Clara Management Unit. probability or extent to which water use government relationship of the United Protective measures for flycatcher for mining purposes would need to be States with tribal entities. We also habitat in the NRMP include: (1) The curtailed or modified to remedy impacts consider any social impacts that might creation of new riverbed areas, to flycatcher. Additionally, impacts to occur because of the designation. including planting wetland mitigation extractive mining operations, such as We have excluded areas from critical sites; (2) revegetation of riparian areas; sand and gravel pits, that cause direct habitat based on land and resource (3) removal of invasive plants such as habitat loss may occur as the result of management plans, conservation plans giant reed (Arundo donax) and tamarisk critical habitat designation. However, or agreements, or other conservation (Tamarix sp.); (4) protecting wetlands project modification costs associated partnerships where the benefits of from urban runoff by establishing a with these operations are uncertain due exclusion from critical habitat outweigh revegetated upland buffer between to the limited consultation history, and, the benefits of including an area from developed areas and the river; (5) as a result, our analysis is unable to critical habitat. We consider a current implementing a Drainage Quality forecast economic impacts for mining land management or conservation plan Management Plan with Best activities. (HCPs as well as other types) to provide Management Practices to ensure water adequate management or protection if it quality within the river corridor; and (6) Recreation meets the following criteria: implementing the biological mitigation Incremental impacts to recreational (1) The plan is complete and provides measures for the Newhall Ranch activities are unlikely to result from the the same or better level of protection Specific Plan that includes restricting designation. In the baseline, activities from adverse modification or pets and off-road vehicles from the area may be affected at Lake Isabella and destruction than that provided through and restricting access to the river

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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continued existence of the flycatcher. Peer Review Comments along the Middle Rio Grande in New Second, the pueblos are committed to In accordance with our peer review Mexico, researchers have not witnessed protecting and managing Pueblo lands policy published on July 1, 1994 (59 FR the type of breeding flycatcher and species found on those lands 34270), we solicited independent movements within years or between according to their tribal, cultural, and opinions from five knowledgeable years reported in Paxton et al. (2007, p. natural resource management objectives, individuals who have expertise with the 76). Shifts in territories may occur; which provide conservation benefits for species, with the geographic region however the statement in the proposal the species and its habitat. In short, the where the subspecies occurs, or that flycatchers ‘‘regularly’’ will pueblos are committed to greater familiarity with the principles of disperse or move to new breeding sites conservation measures on their land conservation biology. Of the five 30 to 40 km (18 to 25 mi) away within a particular basin within the same year than would be available through the individuals contacted, four responded. may be an overstatement. The reviewer designation of critical habitat. The peer reviewers that submitted wrote that based on the detection and Accordingly, we have determined that comments supported the science used to establishment of flycatcher territories the pueblos of Ohkay Owingeh and develop the proposal and provided us along the Middle Rio Grande, Santa Clara should be excluded under with comments, which are included in flycatchers do not appear to regularly section 4(b)(2) of the Act because the the summary below and incorporated disperse more than a few kilometers or benefits of exclusion outweigh the into the final rule, as appropriate. We miles, and in general are not likely to benefits of inclusion and will not cause received comments from the peer disperse more than 16 to 24 km (10 to the extinction of the species. reviewers during the comment period 15 mi). Therefore, a reduction in the Summary of Comments and on our proposed rule. Peer reviewer geographic extent of population Recommendations comments are addressed in the connectivity should be considered. following summary and incorporated We requested written comments from Our Response: In order to determine into the final rule as appropriate. the connectivity of small separate the public on the proposed designation Comment (1): Peer reviewers of critical habitat for the flycatcher flycatcher breeding sites and the commented that we made good use of distance from large populations to during two comment periods. The first the current data, published and gray comment period associated with the evaluate for critical habitat, we used the literature, expert opinion, and the known between-year movements of publication of the proposed rule (76 FR Recovery Plan (Service 2002, entire). 50542) opened on August 15, 2011, and banded adult and juvenile flycatchers Peer reviewers agreed with our reported from USGS (Paxton et al. 2007, closed on October 14, 2011. We also justification to designate critical habitat requested comments on the proposed p. 76). This study is the most as river segments, our definition of a comprehensive banding and movement critical habitat designation and large population, and that small associated draft economic analysis and study conducted on the flycatcher, populations in close proximity equaled occurring over a decade and involving draft environmental assessment during a a large population. With one the banding and tracking of over 1,500 comment period that opened on July 12, clarification (see below), peer reviewers flycatchers (Paxton et al. 2007, p. 1). 2012, and closed on September 10, 2012 agreed with our rationale to use a 35-km From one season to the next, flycatchers (77 FR 41147). We did receive one (22-mi) radius to determine the degree have returned very near to the area request for a public hearing from Globe of connectivity to assign smaller previously used (50 m (150 feet)) and County. We held a public hearing on separate flycatcher breeding sites and have moved as far away as 444 km (275 August 16, 2012, in San Carlos, Arizona. the distance from large populations to mi). However, more common were We also contacted appropriate Federal, evaluate for designation of areas as movements toward the lower end of State, and local agencies; scientific critical habitat. All reviewers who these two extremes. As opposed to using organizations; and other interested provided input agreed with our the word ‘‘regularly’’ as the peer parties and invited them to comment on approach to use the Recovery Plan and reviewer noticed, we could have more the proposed rule, draft economic expert opinion to select critical habitat accurately described that ‘‘locations analysis, and draft environmental segments where few or no territories with breeding habitat that are within 30 assessment during these comment were known. Additionally, all peer to 40 km (18 to 25 mi) of each other will periods. reviewers agreed with our identification have higher meta-population During the two comment periods, we of the importance of migration habitat connectivity, and there is a higher received over 240 comment letters on and how we included it within the probability of colonization of new the proposed critical habitat designation. Peer reviewers agreed with habitats that are within this distance designation, draft economic analysis, or how we identified and categorized (Paxton et al. 2007, p. 76).’’ As a result draft environmental assessment. During special management considerations or of this change in wording, we believe the August 16, 2012, public hearing, no protections (see below for a clarifying the flycatcher movements detected in individuals or organizations made comment) as well as our description of New Mexico are more accurately comments on the designation of revised the lateral extend of critical habitat. captured and the intent of our statement critical habitat for the flycatcher. All Our Response: We believe we have is clearer. substantive information provided considered and applied to this Further, the shorter between-year during comment periods has either been designation the best available scientific distances detected on the Rio Grande in incorporated directly into this final and commercial information regarding New Mexico may be a result of the determination or addressed below. the flycatcher. recent success of nesting flycatchers at Comments we received were grouped Comment (2): One peer reviewer those sites. As USGS reported, ‘‘the into several general issues specifically discussed the 35-km (22-mi) radius to higher a flycatcher’s productivity in one relating to the proposed critical habitat determine connectivity, provided year, the more likely it was to return to designation for the flycatcher and are information on results of flycatcher the same territory the following year. addressed in the following summary movements in New Mexico, and Those individuals that had higher than and incorporated into the final rule as commented on our use of the term normal reproductive success and appropriate. ‘‘regularly.’’ The reviewer discussed that showed territory fidelity continued to

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reproduce above average, while those found in the Recovery Plan (Service partners was very helpful, and enabled that did poorly and moved tended to do 2002, Appendices H and K). us to refine our understanding of habitat better than in the previous year (Paxton essential to the conservation of the Comments From States et al. 2007, p. 76).’’ species, and in the case of occupied Comment (3): One peer reviewer Section 4(i) of the Act states, ‘‘the habitat, habitat that contains physical or discussed that it may be appropriate to Secretary shall submit to the State biological features that may require describe the relative importance of the agency a written justification for his special management considerations or list of special management failure to adopt regulations consistent protections. We based the proposed rule considerations and protections. The with the agency’s comments or on the best available information at that reviewer was concerned that because we petition.’’ Accordingly, we provided time; we requested technical input from referred to the elimination or reduction notice about our proposed rule to all six a variety of partners, including the of exotic plants, this could be construed States where critical habitat was States, to help us refine the final critical as having additional importance for proposed (California, Nevada, Arizona, habitat designation. The final rule has flycatcher conservation. The reviewer Utah, New Mexico, and Colorado). been adjusted accordingly, including described that the research does not Comments we received from States modifying boundaries of critical habitat support any difference in flycatcher regarding the proposal to designate units, based on our partners’ site- health, reproductive success, or revised critical habitat for the flycatcher specific biological expertise with the survivorship when comparing nesting are addressed below. We received species (see Summary of Changes from flycatcher use of native vegetation to comments from State agencies of Proposed Rule section). habitat dominated with exotic tamarisk. Arizona, Nevada, New Mexico, and Comment (6): Although reevaluation Our Response: We agree with the Colorado. We also received a comment of recovery goals is not included in the reviewer that the science demonstrates from Utah Governor’s office. Two State proposed rule, the New Mexico that flycatchers can be equally agencies (AGFD and New Mexico Department of Game and Fish suggests successful in both suitable exotic Department of Game and Fish) establishing recovery goals in the future tamarisk and native vegetation (Sogge et expressed specific support for the for the Pecos River and designating al. 2005, p. 1). Many of the previous Service’s approach to designating Rattlesnake Springs, Eddy County, New beliefs associated with adverse impacts critical habitat for the flycatcher. Mexico, as critical habitat. of tamarisk on reducing water supply Comment (4): The Service has failed Our Response: The Recovery Plan and impacting wildlife populations to cooperate or consult with State and does not currently have recovery goals were largely overstated or inaccurate local agencies prior to designating or a management unit established for (Shafroth et al. 2010, pp. viii-xi). critical habitat for the flycatcher as the Pecos River, therefore, we did not As a result, it is not our intention to required under sections 2(c)(2) and propose any areas in the Pecos River suggest that removal or elimination of 7(a)(2) of the Act. ‘‘Consultation with drainage as critical habitat. The small tamarisk is a preferred flycatcher affected States,’’ where required by population of flycatcher territories at management need. On the contrary, we statute but not defined by Congress, Rattlesnake Springs continues to be believe that because of the sustained means something more than the monitored by the New Mexico interest in the removal of tamarisk, our invitation of comments from the public; Department of Game and Fish and inclusion of this item is to provide the commenter cited California Carlsbad Caverns National Park. measures that reduces the Wilderness Coalition v. United States Although this location is not included implementation of poorly designed Dept. of Energy, 631 F.3d 1072, 1087 within units where goals have been projects, reduces temporal impacts to (9th Cir. 2011) in support of this established, these areas and territories flycatcher habitat, and identifies argument. are still subject to consultation under strategies and considerations that would Our Response: During this the jeopardy provisions of section 7 of result in successful projects with designation process, we requested the Act and may play a role in recovery improved overall habitat quality. information from, and coordinated with regards to source population and For a number of reasons, we believe development of, the proposed critical population stability. that flycatcher habitat that is comprised habitat designation with appropriate Comment (7): The Colorado of tamarisk requires special State resource agencies in Arizona, Department of Natural Resources urges management considerations and Utah, Nevada, California, New Mexico, an assessment of the genetic status and protections. Tamarisk can be more and Colorado. The Service received distribution of the flycatcher. Further, flammable than native vegetation, and substantial information from a variety of other commenters noted that there are there may be widespread future impacts partners, including the States, to help us questions associated with the northern to flycatcher habitat associated with the refine the final critical habitat portion of the flycatcher’s range and the tamarisk leaf beetle. In order to address designation. The final rule has been boundaries of the range of the these issues, where flycatcher habitat is adjusted, accordingly, including southwestern subspecies. comprised of tamarisk, it is important to modifying boundaries of critical habitat Our Response: We are familiar with understand that reducing the proportion units, based on information provided this issue, and the collection and of tamarisk may be largely dependent on from peer review and public comments analysis of genetic information from reducing land or water management on site specific biological expertise on breeding flycatchers and history of stressors that may be preventing native the flycatcher. A summary of comments adjustment of the northern boundary in vegetation from flourishing. As a result, from States is provided below. Utah and Colorado is discussed within our special management considerations Comment (5): We received several the proposed rule. Following the and protections emphasize retaining comments from State resource agencies analysis of flycatcher genetic material native and exotic vegetation, while presenting site-specific information on across the northern part of the bird’s improving the distribution, abundance, areas that should or should not be range (Paxton 2000, pp. 3, 18–20), the and quality of flycatcher habitat by considered as critical habitat and areas northern boundary of this southwestern improving hydrologic conditions and that we should consider for exclusion. subspecies in Utah and Colorado was reducing land management stressors. Our Response: The information reduced (Service 2002, Figure 3). As a We encourage implementing strategies received from our State resource agency result, the southwestern subspecies’

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

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

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

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

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potential impacts on water management, expanded to include the entirety of the should consider the impacts of critical including irrigation diversions, in great creek from the headwaters downstream habitat designation on the proposed detail. We do not anticipate changes in because this is high-quality habitat National Recreation Area. the amount of water available as a result where flycatchers have been Our Response: The NPS’s study, of the listing or designation. Rather, the documented. including its recommendations, is water projects have historically obtained Our Response: The BLM provided us scheduled to be transmitted to Congress incidental take permits by completing new information during the comment this year. At this time, given the HCPs that generally involve acquiring period about a breeding flycatcher uncertainty associated with the various mitigation lands and various detected on Empire Gulch (a tributary to alternatives proposed in the study and management activities. Because changes the headwaters of Cienega Creek) and likely action taken by Congress, we are in flow are not anticipated, impacts to habitat quality for breeding and unable to estimate the potential effects downstream agricultural users are not migrating flycatchers along Cienega of the designated critical habitat on anticipated. Creek. We discussed these comments recreational opportunities arising from a Comment (20): The New Mexico with the BLM, incorporated their National Recreation Area. However, a Department of Agriculture disagrees recommendations into our proposal discussion of the study and possible with the statement in the draft within our July 12, 2012, amendments action by Congress has been added to environmental assessment that to the proposed rule (76 FR 41147, p. Chapter 10 of the final economic ‘‘potential impacts to the quality of the 41151), and subsequently have included analysis. environment are not likely to be highly two short segments of Empire Gulch and Comment (25): The Corps requested controversial’’ and, instead, suggests the a longer segment of Cienega Creek in we exclude the South Fork Kern River ‘‘potential impacts * * * may result in our final designation (see Critical (including upper Lake Isabella) and varying degrees of controversy.’’ Habitat Unit Descriptions, Gila Canebrake Creek, California, located Our Response: The environmental Recovery Unit section above). within the South Fork Kern River assessment acknowledges prior Comment (23): A commenter stated Wildlife Area, as well as Hafenfeld and controversy. The Service believes that, that under the recent consultation for Sprague Ranches, from the revised with the combination of exclusions and Nationwide Aerial Application of Fire critical habitat designation, because voluntary conservation measures in Retardant on USFS lands, retardant use current management of Lake Isabella place, the likely impacts of the proposed within flycatcher critical habitat on Reservoir benefits flycatcher habitat and designation would not be highly national forests would be avoided. The a designation could impact the controversial. The Service understands commenter stated that, although the management purpose of the reservoir for that, given the prior history of proposed critical habitat was not flood control and water supply. The designation, some level of controversy considered in that analysis, it too will commenter indicated that the Sprague may result. likely be avoided by the same size buffer and Hafenfeld properties are managed zones. However, the commenter under a conservation easement or Comments From Federal Agencies believes that newly designated critical management plan to benefit flycatchers. Comment (21): One commenter stated habitat identified in the final rule will The commenter also noted that Lake that they oppose the designation of need to be reviewed by the individual Isabella Reservoir is managed in critical habitat on military lands. national forests at that time to determine compliance with all terms and Our Response: Within this revision, if there would need to be any exceptions conditions of the Service’s 2000 we identified important streams for or modifications to the standard buffer biological opinion on long-term flycatcher habitat and recovery to zones. The commenter states that the operations of Lake Isabella Reservoir propose as critical habitat at national forests will consult as that addressed effects to the flycatcher Vandenberg Air Force Base within the appropriate at that time, and the new and its critical habitat designated at that Santa Ynez Management Unit and areas will then be included in fire time. Marine Corps Base Camp Pendleton and retardant avoidance maps prior to the Our Response: On the basis of the Naval Weapons Station Seal Beach upcoming fire season. conservation easement and management Detachment Fallbrook (Fallbrook Naval Our Response: We appreciate the plan in place with private partnerships, Weapons Station) within the San Diego commenter’s information and the Sprague Ranch and Hafenfeld Ranch Management Unit. After the willingness to incorporate this final have been excluded from this final identification of these lands, we critical habitat designation into designation (see Exclusions section evaluated the conservation and consideration of fire retardant use on above). management of these lands by these USFS lands. We look forward to However, the South Fork Kern military installations as provided in working with the USFS for future Wildlife Area is owned by the Corps their INRMPs. We described and discussion of fire retardant use and and managed by the USFS. In contrast evaluated the conservation measures for avoidance of its use on National Forest to the non-federally owned Sprague each of these installations in our System lands that might affect this Ranch and Hafenfeld Ranch, there is proposal and this final rule and revised critical habitat designation for additional benefit to including the concluded that each provides a benefit the flycatcher. federally owned portions of the South to the flycatcher and its habitat. As a Comment (24): One commenter noted Fork Kern River in the designation of result, we conclude that the areas we that the NPS is currently conducting a critical habitat because of the Federal identified as important for the flycatcher special resource study of the San agencies obligation to consult under habitat are exempt from critical habitat Gabriel River watershed and the San section 7 of the Act on activities that designation under section 4(a)(3) of the Gabriel Mountains regarding the may adversely modify critical habitat. Act (see Application of Section 4(a)(3) formation of the San Gabriel Region The Corps has consulted with the of the Act section above). National Recreation Area in California. Service in the past on dam operations, Comment (22): A Federal agency The purpose of such action would be to the potential effects to the flycatcher, suggested that the Cienega Creek increase recreational opportunities in and implemented reasonable and segment in southern Arizona within the the area, including riding, cycling, prudent measures described in those Santa Cruz Management Unit should be hiking and picnicking. The Service associated biological opinions.

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

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activities taking place in this area is the flycatcher. Several groups, including representatives, including making unlikely. If the USFS requests technical the Santa Domingo Pueblo (Service presentations at tribal wildlife assistance or informal consultation, we 2008) and the Pueblo of San Felipe conferences in Arizona and New Mexico are unlikely to recommend (Service 2007b), have been funded to about the upcoming critical habitat modifications to these activities, remove nonnative plants and refurbish revision and our related policies. In because the stream segment in question habitats along the Rio Grande. These California, the Service attended is used for migratory purposes, rather projects provide proper water flow and meetings with all seven tribes that could than nesting. Furthermore, there may be bank stabilization for the silvery be affected by critical habitat. a benefit to continued recreation at the minnow while also creating native Following publication of our August site in terms of educating visitors about habitat structure for the flycatcher. 15, 2011, proposal (76 FR 50542), and the flycatcher and its habitat needs. If Comment (34): We received a throughout the process to revise critical technical assistance or informal suggestion to add the U.S. Department habitat, we continued communicating consultation occurs, the majority of the of Agriculture and NPS to the list of with tribes and pueblos verbally and in costs would be attributed to the baseline agencies likely to enter into section 7 writing. We contacted each tribe and scenario because the area is considered consultations with the Service under the pueblo formally in writing, and to be occupied by the species. In No Action Alternative in the draft informally via telephone and electronic addition, Federal agencies are aware of environmental assessment. mail; offered government-to-government the potential presence of the species Our Response: The USFS is the consultation at their request; and because the Santa Ynez River segment Federal bureau within the U.S. provided a copy of the proposal. In was previously designated as critical Department of Agriculture that would September 2011, we sent a letter to the habitat. We have added a discussion of be likely to consult with the Service, leader of each tribe and pueblo with an this site to chapter 10 of the final and this agency is already listed. We updated draft flycatcher management economic analysis. have added the NPS to this list and plan template, flycatcher literature, and Comment (33): USBR commented that noted other places in the environmental further guidance on how to develop and the ‘‘Fisheries’’ section of the assessment where actions by the NPS implement a flycatcher management environmental assessment should not could be considered in section 7 plan for our consideration for exclusion focus on just the Colorado River consultations for flycatcher critical under section 4(b)(2) of the Act. We fisheries, as several other river systems habitat. followed up this letter with electronic such as the Rio Grande have conflicting Comments Related to Tribal Lands messages and phone calls to tribes and uses between the fisheries and pueblos providing additional flycatcher. The discussion does not Comment (35): A variety of comments management plan guidance. We later represent the full issues associated with from tribes and others stated that they provided tribes and pueblos an update conflicts between existing fish such as oppose the designation of critical on our schedule for completion of the the Rio Grande silvery minnow habitat on tribal lands. We also received designation, opportunities for (Hybognathus amarus) and the some comments that we did not submitting management plans, an offer flycatcher. adequately coordinate with tribes based of technical assistance on management Our Response: Along the middle Rio on our government-to-government plans, and information about seeking Grande, revised flycatcher critical relationship. exclusion from the critical habitat habitat overlaps with critical habitat for Our Response: It is important for the designation. the Rio Grande silvery minnow, which Service to work and communicate with Following our July 12, 2012, notice of is only found in the section of the Rio tribes and pueblos potentially impacted availability for the draft economic Grande between Cochiti Dam and by the designation of critical habitat. We analysis and draft environmental Elephant Butte Reservoir (68 FR 8088, support and recognize tribal sovereign assessment (77 FR 41147), we again sent February 19, 2003). Both the flycatcher authority and each tribe’s inherent a letter to the leader of each tribe and and silvery minnow have experienced power to manage and control their pueblo, dated July 30, 2012, to notify loss of habitat from stream natural resources. In accordance with them of the opportunity to comment on modifications along the river system Secretarial Order 3206 and the Service’s the process, offer government-to that include agriculture development, Native American Policy, we consult government consultation, and inform water diversion, impoundments, and with tribes when actions taken under them of the dates and locations of the livestock grazing (68 FR 8088, February the Act may affect tribal lands, tribal public hearing and open house meeting. 19, 2003, pp. 8088–8089, 8127). Because trust resources, or the exercise of Representatives from local Service field of potential conflicting interests American Indian tribal rights as defined offices in Arizona, California, Colorado, between current and future water users in the Secretarial Order. and New Mexico contacted tribes and and protected species, a collaborative Prior to our publication of the pueblos in person, during meetings, and group called the Middle Rio Grande proposed revision of flycatcher critical through electronic mail and telephone Endangered Species Collaborative habitat, the Service’s Regional Directors calls to inform them about the proposed Program was developed. This group sent letters to the leader of each tribe rule and offered help with development consists of local, regional, tribal, and and pueblo that could be affected by the of flycatcher management plans. Federal organizations whose goals are to rule, provided information about our Representatives from the BIA also alleviate jeopardy for the protected intention to propose revised flycatcher coordinated with the Service to provide species while still providing for current critical habitat, and offered the their guidance and assistance. In many and future water users (Middle Rio opportunity to initiate government-to- cases, the Service assisted tribes in the Grande Endangered Species government consultations regarding the development of flycatcher management Collaborative Program 2010). process. We also explained our plans. USBR has overseen several restoration exclusion policies under section 4(b)(2) In November 2011, we met with a projects, funded by the Middle Rio of the Act and provided other relevant representative from the San Ildefonso Grande Endangered Species information to assist tribes and pueblos Pueblo in New Mexico at their request. Collaborative Program, to enhance in cooperating in this process. We also We also met with and had habitat for both the silvery minnow and communicated informally with tribal teleconferences with representatives

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

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

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

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order to properly reflect the current economic impacts have occurred as a whether an agency’s action is likely to conditions. Another suggests that it is result of the presence of the flycatcher. result in the destruction or adverse incorrect to assume that the presence of Past economic impacts related to modification of habitat which is the species was the impetus for flycatcher conservation have included determined by the Service to be critical conservation actions already costs of administrative efforts, surveying to the conservation of the species (16 undertaken, and that conservation and monitoring, and cowbird trapping. U.S.C. 1536(a)(2)). We agree with the efforts should therefore not be These costs are expected to continue in commenter that to perform this analysis, considered baseline costs. the future with or without critical we consider how the proposed action is Our Response: According to OMB’s habitat. Some additional consultation likely to affect the function of the Circular A–4, the baseline should be the could occur if critical habitat were critical habitat in serving the intended best assessment of the way the world designated. However, given our ongoing conservation role. will look (in the future) absent the relationship with the San Carlos Apache Comment (59): Some commented that proposed rule. The revised designation Tribe and the information provided in the Service did not adequately notify will replace the existing critical habitat their Management Plan, we have landowners where proposed critical regulation. Thus, the Secretary has the determined that the benefits of habitat was located. discretion to exclude from the final rule excluding lands on the San Carlos Our Response: Due to the large scope areas that were designated in 2005. In Apache Reservation outweigh the of the proposed designation, it was not other words, absent an explicit decision benefits of inclusion. possible to contact each individual from the Secretary to designate an area Comment (57): The Santa Clara landowner within the proposed as part of the final rule, in the future, Pueblo indicates that the draft economic designation. We believe we contacted critical habitat protections will no analysis improperly states that the the appropriate Federal, State, and local longer apply. Thus, comparison of a Service contacted each tribe to solicit agencies; tribes; scientific organizations; world with the designation as proposed information on the likely impacts of the elected officials; and other interested in 2011 to a world without critical designation. Santa Clara Pueblo parties including other landowners, as habitat (the baseline scenario) is maintains that informal contact from best we could, and invited them to appropriate for the purposes of the contractor staff to the tribes does not comment on the proposed rule. We sent economic analysis. respect the government-to-government out over 1,100 pieces of mail for each Comment (56): Activities occurring on relationship the Service should published notice in the Federal tribal lands, unlike activities occurring maintain with tribal entities. Register. We contacted these groups by in other geographic areas where critical Our Response: The Service has letter and electronic mail at the time of habitat may be designated, almost maintained contact with the Santa Clara publication of the proposed rule (76 FR always have a Federal nexus for section Pueblo and other tribal governments 50542, August 15, 2011); and again 7 consultation. As a result, the San through letters, phone calls, and emails, when we reopened the comment period Carlos Apache Tribe is likely to and has provided the Tribe with notice to announce the availability of the draft experience significant economic of publication dates of various economic analysis and draft impacts. documents. We provided numerous environmental assessment, and to notify Our Response: Paragraph 325 in opportunities to engage in government- the public of the location of a public section 6 of the draft economic analysis to-government discussions regarding hearing (77 FR 41147, July 12, 2012). explains that because all tribal lands our proposal, and we continue our We held a public hearing at the request overlapping proposed critical habitat are openness to do so. We appreciate the of Gila County, in San Carlos, Arizona, located within areas occupied by the comment and are fully responsible for on August 16, 2012. In order to inform flycatcher, which would include strengthening government-to- the general public, notices were flycatcher territories, and migrating and government relationships with tribes. published in the Federal Register and dispersing flycatchers. As a result, local newspapers, and we widely Other Comments Related to the Act and where the species occupancy is well distributed news releases and posted known, the Service considers all costs Implementing Regulations and Policy them on the Internet. A web page of associated with conservation measures Comment (58): Since the definition of flycatcher critical habitat materials was to be baseline (see chapter 2 of the ‘‘destruction or adverse modification of maintained at Arizona Ecological economic analysis). This would pertain critical habitat’’ has been invalidated, Services Web site http://www.fws.gov/ to activities on tribal lands with a the Service must revise the definition to southwest/es/arizona. Additional Federal nexus. As a result, we assume focus on whether, with the flycatcher critical habitat materials, that future incremental impacts on tribal implementation of an agency’s proposed including public comments, are lands will be limited to the additional action (taking into consideration habitat available at http://www.regulations.gov. administrative effort of addressing management, conservation or other Comment (60): Several commenters critical habitat in section 7 consultation. offsetting measures), the critical habitat expressed the willingness of a variety of Specifically, the draft economic remaining would continue to serve its water agencies (Bear Valley Mutual analysis (paragraphs 444 and following intended conservation role for the Water Company, City of Redlands, City in section 6.4.15) discusses this concern species. of Riverside, City of San Bernardino using text from a comment submitted Our Response: The Service is working Municipal Water Department, East previously by the San Carlos Apache to update the regulatory definition of Valley Water District, San Bernardino Tribe. The full extent of flycatcher adverse modification since it was Valley Municipal Water District, San occupancy on San Carlos Indian invalidated by several Courts of Appeal, Bernardino Valley Water Conservation Reservation is unknown due to the including the Ninth Circuit and the District, Western Municipal Water proprietary nature of tribal survey Fifth Circuit. At this time (without District, West Valley Water District, and information. However, the information updated regulatory language), we are Yucaipa Valley Water District) to work contained in the management plan, as analyzing whether destruction or with the Service to provide for well as the section 7 consultation adverse modification would occur based flycatcher conservation. history, does not indicate that on the statutory language of the Act Our Response: The Service significant management requirements or itself, which requires us to consider appreciates the agencies’ willingness to

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work with the Service to conserve the thorough consideration of the facts. The naturally irregular, patchy, and flycatcher and its habitat. We believe Recognize and disclose that the dynamic distribution of flycatcher partnerships with other agencies are redesignation of critical habitat will habitat within riparian corridors, vital to providing conservation of our cause the otherwise unnecessary combined with the habitat-related and shared natural resources, and look expenditure of funds by local territory recovery goals and important forward to working with the agencies in governments and private citizens. migration habitat likely accounts for a pursuit of this goal. Our Response: The designation or larger area than what is perceived to be Comment (61): There is no reference revision of critical habitat does not needed in order to accomplish the in the proposed rule to the requirement impose a legally binding duty on non- territory component of the Recovery set forth in the Federal Land and Policy Federal Government entities or private Plan’s targets. In other words, because of Management Act for values parties. The Service completed an the dynamic aspects of flycatcher management. The Service must adhere economic analysis and made its findings habitat due to flooding, changing river to the requirements as set forth in that available for public comment. locations, and land uses, we are unable legislation including mitigation efforts Consequently, we do not believe that to specifically target patches of habitat for all the promised values. this rule will significantly or uniquely within riparian corridors. Instead, we Our Response: The Federal Land and affect small governments for reasons identified the boundaries (riparian area) Policy Management Act of 1976, as explained in the sections of this rule where this habitat is expected to occur amended (43 U.S.C. 1701), established entitled Regulatory Flexibility Act (5 over time. the BLM’s multiple-use mandate to U.S.C. 601 et seq.) and Unfunded Additionally, a comparison of the serve present and future generations. Mandates Reform Act (2 U.S.C. 1501 et 2011 proposal to the 2005 final Section 102(a)(8) states that public lands seq.). designation is inappropriate because our must ‘‘be managed in a manner that will 2011 proposal does not incorporate any Other Comments Related to Biology, protect the quality of scientific, scenic, section 4(b)(2) exclusions from the final Methodology, and Critical Habitat historical, ecological, environmental, air designation. In the 2011 proposed rule Designation and atmospheric, water resource, and and 2012 notice of availability, we archeological values.’’ In section 103(e), Comment (64): Several commented identified 1,451.5 km (901.9 mi) stream ‘‘public lands’’ is defined generally as that the critical habitat in the proposed miles that we considered for exclusion land administered by the BLM. There rule is excessive, capable of supporting from the final designation (76 FR 50542, are no provisions in the Federal Land some 100,000 flycatcher territories, in August 15, 2011; 77 FR 41147, July 12, and Policy Management Act that are contrast to the current number of 2012). The exclusions we are making in applicable to the Service in general or territories (approximately 1,300) and the this final rule are discussed in the the designation of critical habitat Recovery Plan goal of 1,950 territories. Exclusions section. specifically. Similar comments were received that Comment (65): Some commenters Comment (62): The implementing generally pointed out that the amount questioned the scientific evidence used agreements for both the Orange County and location of areas identified in the by the Service. Southern Subregion HCP and the critical habitat proposal were Our Response: In designating Western Riverside County MSHCP state significantly larger than our 2005 flycatcher critical habitat, we believe we that, to the extent consistent with other designation, and there was no have used the best available scientific agency priorities, staffing, and funding discussion or analysis of the difference. and commercial information, including constraints, the Service intends to Our Response: Our specific results of numerous surveys, peer- reassess and revise the boundaries of methodology used to identify areas reviewed literature, unpublished reports existing designated critical habitat and proposed as flycatcher critical habitat by scientists and biological consultants, any proposed critical habitat of covered was described in the proposed rule (76 habitat suitability models, a species designated within the HCP FR 50542, August 15, 2011, pp. 50552– stakeholder-driven Recovery Plan, and boundaries. 50558). This approach duplicated much expert opinion from biologists with Our Response: The implementing of what was identified and designated extensive experience studying the agreements indicate that the Service in 2005, with additional proposed areas flycatcher and its habitat. We believe intends to reassess and revise the primarily targeting locations needed in the peer reviewer support for our use of boundaries of existing designated order to reach specific territory and the best available science to develop critical habitat and any proposed critical habitat-related recovery goals for each this critical habitat designation confirms habitat of covered species within HCP management unit. our approach. boundaries. However, due to current The science provided in the Recovery Comment (66): One commenter funding and priority limitations, the Plan (Service 2002, entire) and our expressed concern that the quality of the Service cannot reassess or revise all knowledge of the distribution and maps was poor and, therefore, made it critical habitat designations for multiple abundance of territories, use of river difficult for the public to adequately species concurrently. In revising this corridors for migration, year-to-year comment on the proposed revisions. current designation of critical habitat for movements, habitat use within Map quality makes it difficult to the flycatcher, the Service is responding territories, and Recovery Plan goals proceed with land and water to litigation and the subsequent helped guide our approach and management projects such as fuel settlement agreement in which we provided support for the segments reduction or fire management. agreed that the Service would revise proposed and designated as critical Similarly, some commenters critical habitat for the flycatcher. habitat. In some locations, especially recommended more detailed maps to Comment (63): The Service has found Management Units where there is determine where the primary that the redesignation does not create a limited information on flycatcher constituent elements of critical habitat Federal mandate as defined under the distribution and abundance, we sought may be absent at locations such as road, Unfunded Mandates Reform Act (2 additional information through the campgrounds, bridges, or where the U.S.C. 1501 et seq.). However, the designation process and used our best bird’s status is uncertain. Service needs to complete a financial professional judgment to identify and Our Response: In the proposed rule plan in an honest manner and with a designate river segments. (76 FR 50542; August 15, 2011), we

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

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

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

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

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

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

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

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preventing flood damage to life and Comment (96): A commenter Comment (98): Many commenters property. expressed concern that critical habitat identified particular areas that they Our Response: Under section 7 of the designation would restrict or eliminate believed should not be designated Act, a Federal agency consults with the the continuation of riparian because critical habitat will Service to ensure activities it undertakes management efforts such as wildland unnecessarily burden the regulated do not adversely modify designated fuels reduction projects, and biological public and will overload Service staff critical habitat. However, section 7(p) of and mechanical control of tamarisk and with implementation of the designation. the Act, concerning Presidentially Russian olive. Specifically, many private landowners declared disaster areas, allows for Our Response: Designation of critical with water diversions, cattle ranches, emergency actions to be taken without habitat has no impact on decisions that and agricultural property, plus residents section 7 consultation in the event of an private landowners make on their land in areas dependent on recreation to ‘‘emergency situation which does not that do not require Federal funding or support local economies throughout the allow the ordinary procedures of this permits. Federal agencies that flycatcher’s range, commented that this section to be followed.’’ Thus, the undertake, fund, or permit activities that designation would cause them harm Service does not anticipate that any may affect critical habitat are required to economically, could limit the ability of consultation in this area would require consult with the Service to ensure such farmers and ranchers to till productive that species conservation take actions do not adversely modify or farmland, could limit use of fertile precedence over protection of human destroy designated critical habitat. grazing land, could restrict the life or property. Our consultation record Critical habitat does not close any utilization of critical water rights, and since 1995 has demonstrated that the public or private lands to most could delay projects through the listing of the flycatcher or designation of activities; critical habitat designation regulatory process. critical habitat has not resulted in the only serves to identify areas essential to Our Response: Pursuant to the Act, inability to protect existing flood control flycatcher conservation. Should projects we are statutorily required to designate structures or operations. The Service be proposed for these areas that require critical habitat for a federally listed believes that flycatcher conservation, Federal funding or permitting, the species if it is determined to be both the requirements of Federal agencies to Federal agency would be required to prudent and determinable. We made a evaluate and consult on potential disclose the potential negative impacts determination that critical habitat was adverse effects to the flycatcher and its to flycatchers or their primary both prudent and determinable in our critical habitat can be compatible with constituent elements. previous designation for the flycatcher the maintenance of flood control (62 FR 39129, July 22, 1997). We further Our environmental assessment for the structures and operations (see Comment note that we were previously under proposed rule (section 3.5.2.1) 15 for more explanation regarding court order to revise flycatcher critical concludes that there would be minimal impacts to water operations). habitat (69 FR 60706, October 12, 2004; Comment (95): One commenter impacts on fire risk reduction projects 76 FR 60886, October 19, 2005) and requested that the Service buffer its and wildland fire suppression projects. reached a settlement agreement with critical habitat designation by removing Conservation activities and measures, plaintiffs and the Court for this current from critical habitat the area 60 m (200 such as appropriate seasonal timing and revision (our proposal was published at ft) from the center line of a highway to avoiding occupied locations, are 76 FR 50542, August 15, 2011). Please minimize any disturbance to the critical limitations that will continue to allow see the Previous Federal Actions section habitat that might occur as a result of fire management goals to be achieved. for a discussion of the litigation history any routine maintenance and repair Furthermore, this rule and the Recovery concerning this designation. work. Plan supports proposed management Critical habitat designations do not Our Response: We identified the actions that reduce the land constitute or create a regulatory burden, lateral extent of all proposed lands for management actions that result in the by themselves, in terms of Federal laws critical habitat designation as those increase in exotic plant species and and regulations on private landowners areas within the boundaries of the 100- supports actions that improve landscape carrying out private activities, but in year floodplain that currently support, conditions allowing native plants to certain areas they may trigger additional or have the possibility to support, the flourish. State regulatory reviews and other physical or biological features essential Other Comments Related to Exclusion requirements. For example, actions for the flycatcher. We identified that Areas occurring in critical habitat in California existing paved roadways that may occur may be subject to additional regulatory within the critical habitat boundaries Comment (97): One commenter does reviews under the California where habitat could not be established, not support the exclusion of properties Environmental Quality Act (California would not be considered critical habitat, under section 4(b)(2) of the Act. Public Resources Code, sections 21000– even though we were unable to identify Our Response: Exclusion of areas 21178, and Title 14 CCR, section 753, and extract those locations from our from final designation of critical habitat and Chapter 3, sections 15000–15387) designation. However, routine is provided for under section 4(b)(2) of and other State laws and regulations. maintenance activities on roadways or the Act, when a determination is made When a private action requires Federal adjacent to roadways could affect that the benefits of excluding any area approval, permit, or is federally funded, critical habitat or the flycatcher from critical habitat outweigh the the critical habitat designation may depending on the type of activity, extent benefits of including that area in critical impose a Federal regulatory burden for of maintenance, season of work, habitat, provided that exclusion of that private landowners; absent Federal development of temporal access roads, area from critical habitat will not result approval, permits, or funding, the or any number of various actions. The in extinction of the species. Please see designation should not affect farming impacts to the flycatcher or to its the Application of Section 4(b)(2) of the and ranching activities on private lands. designated critical habitat must be Act section for a full discussion of the Similarly, a Federal nexus could result considered by any Federal agency areas we have determined are in the designation affecting future land planning to conduct or permit such appropriate to exclude from the final use plans, and the designation may activities. designation of critical habitat. trigger State requirements which could

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

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

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This assessment focused on species in lands leased from USBR and the NPS. In addition, there may be Federal the upland areas along the Virgin River Funding for the operation and involvement in the funding of the rather than the riparian and aquatic maintenance of Overton WMA results management of the area that could species occurring in the 100-year primarily from Federal Aid in Wildlife provide benefits of including the area in floodplain of the river, as that would be Restoration Act funds (74 percent) with critical habitat. the focus of the Virgin River HCP. an additional 25 percent funded by the Based on the above factors, we The Virgin River HCP is currently State, and 1 percent funded by Federal determined that the benefits of under development but is not yet Aid in Sport Fish Restoration Act funds. including Overton WMA land (6.5 km completed. Therefore, conservation Pursuant to Federal Aid regulations, the (4.0 mi)) occurring along the Virgin actions that would minimize and property must continue to serve the River from designation of critical habitat mitigate impacts specific to Virgin River purpose for which it is funded, in this outweigh the benefits of excluding the riparian and aquatic species occurring case for waterfowl and other wetland area. Thus, this area is included in the in the river and its 100-year floodplain, species (16 U.S.C. 669–669i; 50 Stat. final designation of critical habitat. including the flycatcher, are not yet in 917). Other Comments Related to Economic place. Overton WMA lands along the Virgin Impacts and Analysis Additionally, while the MSHCP River occur in an important flycatcher planning area encompasses the entire breeding area known as Mormon Mesa. Comment (106): One entity segment of the Virgin River in Nevada, Other lands in this area are managed by representing mining interests states that much of the riparian habitat along this BLM, USBR, Clark County, and multiple any restriction or interruption imposed segment occurs on lands managed by private entities. This area is on water transportation and diversions entities other than the MSHCP undeveloped and subject to flooding to maintain critical habitat would have permittees, including the BLM, NPS, events and river flows that provide a a dramatic impact on mining operations. and State of Nevada. Although these relatively natural mosaic of habitats Further, any such restrictions are agencies are signatories to the MSHCP’s including cattail marshes and riparian attributable solely to the designation of Implementing Agreement, they retain forest consisting of tamarisk, Gooddings critical habitat. management authority and are willow, and coyote willow. Due to flood Our Response: Nearly all of the ultimately responsible for activities events, suitable habitat and occupied mining sites located in or near proposed occurring on their lands and impacts sites have shifted over the years, but all critical habitat are in areas occupied by associated with those activities, such as breeding sites have been located within the flycatcher where Federal agencies livestock grazing and recreational a 1-km (0.62-mi) wide floodplain and are already aware of the presence of the activities. In addition, other activities 6.6-km (4.1-mi) long stretch of the river. species. Thus, any future section 7 that negatively affect the habitat, such as A management plan for Overton consultations related to the mining water resource development, are not WMA, which included strategies for operations would occur regardless of covered activities under the MSHCP and managing flycatcher habitat, was whether critical habitat is designated. not under the jurisdiction or authority completed in December 2000, to provide Furthermore, as described in the of the permittees, and threats, such as a framework for implementing Service’s memorandum provided in the occurrence and spread of biocontrol management actions for the next 10 Appendix C of the draft economic agents, are not under the control of any years. This plan is targeted for revision analysis, project modifications likely to of the land managers or owners. in the future. The main strategy be requested to avoid adverse Therefore, threats to the flycatcher and identified in the plan to benefit modification are likely to be similar to its habitat not under the control, flycatcher (and other neotropical modifications requested to avoid responsibility, or authority of the migratory birds) along the Virgin River jeopardy. Thus, the incremental effects MSHCP permittees remain a concern of Overton WMA is to maintain and of the designation in these cases are and have yet to be addressed. enhance dense patches of coyote willow likely to be limited to minor Based on the above factors, we for occupied and breeding habitat for administrative costs. determined that the benefits of flycatcher. Currently, no enhancement One exception is the Morenci Mine in including this area from designation of projects have been implemented by the the San Francisco Management Unit. critical habitat outweigh the benefits of NDOW at Mormon Mesa although the The flycatcher occupies this unit; excluding the area. Thus, this area is NDOW is in the initial stages of however, the area was not previously included in the final designation of developing plans with the USBR to proposed for critical habitat designation, critical habitat. remove tamarisk and plant native and there is no history of formal section Comment (105): We received requests riparian species in their place along the 7 consultation in the area. Thus, we to exclude segments of the Virgin River Virgin River of Overton WMA. assume the designation would increase within the Overton Wildlife Up until recently, natural conditions the awareness of Federal agencies of the Management Area (WMA) in Clark have maintained suitable flycatcher need to consider impacts to flycatcher, County, Nevada, and we identified this habitat at Mormon Mesa; therefore, the and future section 7 consultations location in our proposal as an area we NDOW has not yet implemented would be attributable to the designation. were considering for exclusion under projects here. Recently, impacts from This site is located 11 km (7 mi) section 4(b)(2) of the Act. the tamarisk leaf beetle in the area has southwest of proposed critical habitat; Our Response: Overton WMA is significantly reduced suitable flycatcher thus, consultation would be required if located in Clark County, Nevada, and is breeding habitat. This area continues to a Federal action occurs and a hydrologic managed by the NDOW. Stretches of be threatened by the overutilization and link is established showing an effect on both the Muddy River and Virgin River trampling of riparian vegetation by the flycatcher or its critical habitat. As run through Overton WMA. Overton livestock, surface and noise disturbance described in paragraphs 570 through WMA encompasses a wide diversity of from recreational activities, and water 571 of the draft economic analysis, we habitats within its 7,146 ha (17,657 ac). resource development. These issues are lack the specific data and models to Approximately 20 percent of lands not addressed by current conservation determine how streamflow in proposed comprising Overton WMA are owned by efforts, minimizing the benefits of critical habitat may be affected. This site the State of Nevada, and 80 percent are excluding the area from critical habitat. is discussed in greater detail in

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

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

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

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

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

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

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over protection of human life or the rule is unlikely to conflict with directly regulated entities, which the property. For example, section 7(p) of mitigation requirements imposed on Service interprets to be Federal the Act, concerning Presidentially flood control projects by the other agencies, which are not small entities declared disaster areas, allows for Federal agencies (see discussion in (see Regulatory Flexibility Act (5 U.S.C. emergency actions to be taken without section 3.2.4 of the final economic 601 et seq.) section below.). Our section 7 consultation in the event of an analysis). analysis goes further, and considers ‘‘emergency situation which does not Comment (139): The Service states impacts to small entities that may be allow the ordinary procedures of this that no regulatory flexibility analysis indirectly affected (e.g., third parties to section to be followed.’’ Likewise, under the Regulatory Flexibility Act (5 section 7 consultations), but only to routine maintenance will not be U.S.C. 601 et seq.) is required if the those entities for which the regulatory prohibited. Therefore, economic proposed critical habitat designation link would be measurably diluted. impacts that potentially could result will not impact a substantial number of Indeed, in response to a similar from a catastrophic flood event, such as small entities (i.e., small businesses, argument to include indirectly regulated loss of life or property value, are not small organizations, and small entities in the analysis of a rule quantified because management actions government jurisdictions). The Service’s promulgated by Environmental to prevent catastrophic flooding are not proposed restrictions on dam operations Protection Agency, the DC District Court expected to be precluded due to and flood protection facility wrote, ‘‘The rule will doubtless have designation of critical habitat for the maintenance have consequences to economic impacts in many sectors of flycatcher. We have included additional communities near and far downstream the economy. But to require an agency text in the final economic analysis of the proposed critical habitat areas in to assess the impact on all of the discussing the potential for economic Los Angeles County. A substantial nation’s small businesses possibly impacts associated with flood control number of small entities depend on the affected by the rule would be to convert activities. flood protection facilities that are every rulemaking process into a massive Furthermore, the Service does not potentially impacted by the proposed exercise in economic modeling, an propose to restrict water supply in the critical habitat designation because they approach we have already rejected. See Big Tujunga subunit. As discussed in get their water supply from the Mid-Tex Elec. Coop., 773 F.2d at 343’’ detail in previous responses, groundwater basins in which the (Cement Kiln Recycling Coalition v. historically, flycatcher concerns have proposed critical habitat areas for Los Environmental Protection Agency, 225 been addressed through mitigation, Angeles County are located. The F. 3d 855, 869 (DC Cir. 2001, at V:50– rather than changes to water operations. Service’s proposal will increase these 52.)). The court limited the analysis to Comment (138): The proposed small entities’ exposure to flood hazards only those small entities to which the designation warrants review and a and their access to their water supply. rule will apply. Thus, the analysis determination of significance by the The Service needs to comply with the presented in Appendix A of the final OMB because: (1) Potential flood Regulatory Flexibility Act and conduct economic analysis complies with the damage to properties in any given year a regulatory flexibility analysis of the Regulatory Flexibility Act. due to the Service’s proposed proposed critical habitat designation. Other Comments Related to the restrictions on dam operations and The analysis should include the Environmental Assessment facility maintenance, combined with the cumulative impact of other Act listings potential loss of groundwater available and critical habitat designations in Los Comment (140): The draft for pumping due to the Service’s Angeles County and in the areas in environmental assessment views proposed pumping restrictions will which the region gets its imported environmental justice impacts only result in significant economic impacts water. The Service also needs to consult through a ‘‘macro lens.’’ Environmental to Los Angeles County; and (2) proposed local flood protection, water supply and justice impacts must be assessed by restrictions on nonnative vegetation business entities, not solely litigious looking at those impacts on us as a removal and maintenance of flood environmental groups, while separate, unique people, and not solely protection facilities do conflict with conducting this analysis. within the context of the entire other Federal agencies’ actions by Response: As discussed in response to designation. conflicting with mitigation requirements prior comments, we do not anticipate Our Response: The environmental imposed by Federal permits issued to that the proposed rule will affect water assessment acknowledges the potential the District and the maintenance operations or flood control capacity. for localized environmental justice activities of the Corps in Big Tujunga Thus, the types of downstream impacts. The potential for economic Wash, Hansen Flood Control basin, San economic impacts contemplated in the impacts that disproportionately affect Gabriel River, and Santa Fe Flood comment are unlikely. low income or minority communities Control Basin. Furthermore, we note that Appendix exists for some activities, to the extent Response: The economic impacts of A of the final economic analysis that there are employment and payroll the proposed critical habitat designation includes an analysis of the potential for impacts of reductions on economic are estimated and reported in the final critical habitat designation to have a activity, and those impacts are economic analysis. The estimate of significant economic impact on a concentrated in the minority or low annualized costs range from less than $1 substantial number of small entities as income communities. As no specific million to $1.7 million. The designation required by the Regulatory Flexibility projects are mandated or authorized by will not result in an annual effect of Act. The appendix discusses the case this designation of critical habitat, and $100 million or more on the economy, law concerning whether indirectly the designation does not directly restrict therefore, this rule is not considered an affected entities (i.e., entities that are land use or land management activities, economically significant rule. We do not not directly subject to the regulation, it is not possible to predict whether anticipate that the flood protection such as the downstream communities such impacts will in fact occur. capabilities of water structures located referenced in this comment) must be However, it is likely that any such in designated critical habitat will be included in the Regulatory Flexibility impacts would be at most minor, in the affected by the regulation for the reasons Act analysis. The case law concludes context of the entire designation, discussed in previous responses. Thus, that the analysis need only include because: (1) The economic impacts

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

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impact of designating those segments. (FEMA) flood hazard area and required comply with floodplain management The sections on cumulative impacts to purchase flood insurance policies for requirements. consider the impacts of these segments federally secured mortgages. The Our Response: For reasons describe when added to those of past, present, potential flood insurance cost should be above in response to Comment 147, the and reasonably foreseeable future estimated and included in the analysis Service does not expect such remapping actions. of Alternative A. The flood insurance to occur as a result of critical habitat Comment (145): The environmental cost burden within low-income areas designation. assessment appears to be based on the protected by the levees could be Comment (148): The Service must incorrect assumption that suitable or especially severe. evaluate the air quality and greenhouse occupied flycatcher habitat occurs Our Response: The Service believes gas emissions and climate change across the entirety of mapped that the flood control rating for the impacts that may be caused by a critical floodplains and recovery Management levees would not be affected by the habitat designation. Units, and that section 7 consultations designation based on past conservation Response: The designation of critical would currently be required within the efforts and consultation outcomes (see habitat does not affect land ownership entire mapped floodplains and our response to Comment 101 for more or establish a refuge, wilderness, Management Units. Most floodplains explanation). In addition, Service policy reserve, preserve, or other conservation and Management Units (e.g., Santa Ana and precedent demonstrate that areas. The Service must use the best River) include various habitat types maintenance activities necessary to scientific and commercial information such as unvegetated, open channel areas protect against the loss of life or available; we do not believe that critical and areas that are not known to be property are not precluded by the Act. habitat will cause impacts to air quality occupied. If included in the critical The Act does not expect species or changes to greenhouse gas emissions. habitat, these areas would be subject to conservation to take precedence over section 7 consultations, further protection of human life or property. Required Determinations unnecessarily delaying critical flood For example, section 7(p) of the Act, Regulatory Planning and Review control maintenance activities. concerning Presidentially declared (Executive Orders 12866 and 13563) Our Response: The environmental disaster areas, allows for emergency assessment analyzes impacts based on actions to be taken without section 7 Executive Order 12866 provides that the methodology, assumptions, and consultation in the event of an the Office of Information and Regulatory definitions of critical habitat found in ‘‘emergency situation which does not Affairs (OIRA) will review all significant the August 15, 2011, proposed rule (76 allow the ordinary procedures of this rules. The Office of Information and FR 50542, pp. 50553–50558). This section to be followed.’’ Regulatory Affairs has determined that section includes discussion of migratory Examining the section 7 consultation this rule is significant. habitat, lateral extent, and mapping, as history for the Santa Ana sucker, for Executive Order 13563 reaffirms the they relate to coverage of areas within example, related to flood control principles of E.O. 12866 while calling each management unit. operations at Cogswell Dam shows that for improvements in the nation’s Comment (146): Section 3.6.2.3 of the flood protection projects (e.g., sediment regulatory system to promote environmental assessment incorrectly control) have been allowed to continue predictability, to reduce uncertainty, concludes that Alternative B impacts even when critical habitat was and to use the best, most innovative, would be similar to Alternative A. designated for the sucker at that and least burdensome tools for Alternative B would result in the location. Thus, economic impacts that achieving regulatory ends. The exclusion of the existing Santa Ana potentially could result from a executive order directs agencies to River Levee system from critical habitat catastrophic flood event, such as loss of consider regulatory approaches that and avoid the adverse impacts that a life or property value, are not reduce burdens and maintain flexibility critical habitat designation would likely quantified, because management actions and freedom of choice for the public have upon the levees. The to prevent catastrophic flooding are not where these approaches are relevant, environmental assessment should expected to be precluded due to feasible, and consistent with regulatory accurately describe the full extent of the designation of critical habitat for the objectives. E.O. 13563 emphasizes reduced potential adverse impacts flycatcher. As such, while some costs further that regulations must be based provided by Alternative B. may be incurred to complete section 7 on the best available science and that Also, section 3.12.2.2 of the consultations, the functioning of the the rulemaking process must allow for environmental assessment does not levee system is unlikely to be affected public participation and an open address all the potential adverse by the presence of the flycatcher or exchange of ideas. We have developed socioeconomic consequences of designated critical habitat, and, this rule in a manner consistent with Alternative A, which would not exclude therefore, flood insurance premiums these requirements. any of the proposed critical habitat should not change. units. Alternative A would include the Comment (147): Section 3.13.2 of the Regulatory Flexibility Act (5 U.S.C. 601 existing Santa Ana River Levee system environmental assessment does not et seq.) in the critical habitat area. This would address the potential adverse Under the Regulatory Flexibility Act result in possible delays in permits for environmental justice impacts of (RFA; 5 U.S.C. 601 et seq.), as amended levee maintenance activities as well as Alternative A. The potential remapping by the Small Business Regulatory section 7 conservation measures to of existing developed areas behind the Enforcement Fairness Act (SBREFA) of provide riparian vegetation conflicting Santa Ana River Levees as flood hazard 1996 (5 U.S.C 801 et seq.), whenever an with Federal levee certification and areas could adversely impact low agency must publish a notice of maintenance requirements. As a result, income or minority communities. In rulemaking for any proposed or final the levees may be decertified and addition to public health and safety rule, it must prepare and make available approximately 1,300 ha (3,300 ac) of concerns, a remapped floodplain would for public comment a regulatory land (approximately 10,000 residents) increase flood insurance costs and the flexibility analysis that describes the would be remapped and placed in a residential and commercial construction effects of the rule on small entities Federal Emergency Management Agency costs to flood-proof structures and (small businesses, small organizations,

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

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

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Energy Supply, Distribution, or Use— (1) This rule will not produce a in a voluntary Federal aid program, the Executive Order 13211 Federal mandate. In general, a Federal Unfunded Mandates Reform Act would Executive Order 13211 (Actions mandate is a provision in legislation, not apply, nor would critical habitat Concerning Regulations That statute, or regulation that would impose shift the costs of the large entitlement Significantly Affect Energy Supply, an enforceable duty upon State, local, or programs listed above onto State Distribution, or Use) requires agencies tribal governments, or the private sector, governments. (2) We do not believe that this rule to prepare Statements of Energy Effects and includes both ‘‘Federal will significantly or uniquely affect when undertaking certain actions. The intergovernmental mandates’’ and small governments because it would not Office of Management and Budget ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. produce a Federal mandate of $100 (OMB) has provided guidance for million or greater in any year; that is, it implementing this Executive Order that 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that is not a ‘‘significant regulatory action’’ outlines nine outcomes that may under the Unfunded Mandates Reform constitute ‘‘a significant adverse effect’’ ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ Act. The FEA concludes incremental when compared to not taking the impacts may occur due to regulatory action under consideration. with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also administrative costs of section 7 Some dams within the flycatcher consultations for water management, proposed critical habitat area have excludes ‘‘a duty arising from participation in a voluntary Federal livestock grazing, residential and related installed hydroelectric capacity; development, tribal, transportation, however, the conclusion found in our program,’’ unless the regulation ‘‘relates to a then-existing Federal program mining, oil, and gas development, and economic analysis does not forecast any recreation projects; however, these are changes to the timing or amount of under which $500,000,000 or more is provided annually to State, local, and not expected to significantly affect small water spilled at these dams. governments. Incremental impacts With respect to potential impacts to tribal governments under entitlement authority,’’ if the provision would stemming from various species the oil and gas development industry, conservation and development control representatives express concern that ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or activities are expected to be borne by development activity in La Plata the Federal Government, State agencies, County, Colorado, and San Juan County, otherwise decrease, the Federal Government’s responsibility to provide with some effects to water and livestock Utah, will be subject to section 7 grazing operators, and land, oil, and gas consultation as a result of the funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust developers, which are not considered designation. They estimate additional small governments. The designation of per project costs of $20,000, and accordingly. At the time of enactment, these entitlement programs were: critical habitat imposes no obligations potential time delays, associated with on State or local governments. By the consultation activity. Total energy Medicaid; Aid to Families with Dependent Children work programs; definition, Federal agencies are not production from natural gas wells in considered small entities, although the these counties totaled 433 million Mcf Child Nutrition; Food Stamps; Social Services Block Grants; Vocational activities they fund or permit may be (1 Mcf = one thousand cubic feet) in proposed or carried out by small 2010, or approximately 1.6 percent of Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent entities. Consequently, we do not the 26.86 billion Mcf produced in the believe that the critical habitat Living; Family Support Welfare United States in the same year. designation will significantly or Services; and Child Support Based on the protections already uniquely affect small government Enforcement. ‘‘Federal private sector afforded riparian habitat, we project entities. As such, a Small Government mandate’’ includes a regulation that only seven formal and information Agency Plan is not required. consultations over the timeframe for the ‘‘would impose an enforceable duty analysis. Because total present value upon the private sector, except (i) a Takings—Executive Order 12630 incremental administrative costs are condition of Federal assistance or (ii) a In accordance with Executive Order $11,000 over 20 years, costs associated duty arising from participation in a 12630 (Government Actions and with section 7 consultation are unlikely voluntary Federal program.’’ Interference with Constitutionally to increase the cost of energy production The designation of critical habitat Protected Private Property Rights), we in the United States in excess of 1 does not impose a legally binding duty have analyzed the potential takings percent. on non-Federal Government entities or implications of designating critical The economic analysis finds that private parties. Under the Act, the only habitat for the flycatcher in a takings energy-related impacts associated with regulatory effect is that Federal agencies implications assessment. As discussed flycatcher conservation activities within must ensure that their actions do not above, the designation of critical habitat critical habitat are not expected destroy or adversely modify critical affects only Federal actions. Although (Industrial Economics, Inc. 2012, pp. A– habitat under section 7. While non- private parties that receive Federal 17–A18). As such, the designation of Federal entities that receive Federal funding, assistance, or require approval critical habitat is not expected to funding, assistance, or permits, or that or authorization from a Federal agency significantly affect energy supplies, otherwise require approval or for an action may be indirectly impacted distribution, or use. Therefore, this authorization from a Federal agency for by the designation of critical habitat, the action is not a significant energy action, an action, may be indirectly impacted legally binding duty to avoid and no Statement of Energy Effects is by the designation of critical habitat, the destruction or adverse modification of required. legally binding duty to avoid critical habitat rests squarely on the destruction or adverse modification of Federal agency. The takings Unfunded Mandates Reform Act (2 critical habitat rests squarely on the implications assessment concludes that U.S.C. 1501 et seq.) Federal agency. Furthermore, to the this designation of critical habitat for In accordance with the Unfunded extent that non-Federal entities are the flycatcher does not pose significant Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they takings implications for lands within or seq.), we make the following findings: receive Federal assistance or participate affected by the designation.

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Federalism—Executive Order 13132 3(b)(2) of the Order. We are designating a review of public comments we In accordance with Executive Order critical habitat in accordance with the received on the August 15, 2011, 13132 (Federalism), this rule does not provisions of the Act. This final rule proposed rule (76 FR 50542). We analyzed the potential impacts of have significant Federalism effects. A uses standard property descriptions and critical habitat designation on the federalism impact summary statement is identifies the elements of physical or following resources and resource not required. In keeping with biological features essential to the management types: Land use and Department of the Interior and conservation of the flycatcher within the management; fish, wildlife, and plants Department of Commerce policy, we designated areas to assist the public in (including endangered and threatened requested information from, and understanding the habitat needs of the species. species); fire management; water coordinated development of, this resources (including water management critical habitat designation with Paperwork Reduction Act of 1995 (44 projects and groundwater pumping); appropriate State resource agencies in U.S.C. 3501 et seq.) livestock grazing; construction and California, Arizona, Nevada, Utah, This rule does not contain any new development; tribal trust resources; soils Colorado, and New Mexico. We collections of information that require and mineral resources; recreation; received comments from state wildlife approval by OMB under the Paperwork socioeconomics; and environmental agencies of Arizona, Nevada, Arizona, Reduction Act of 1995 (44 U.S.C. 3501 justice. We found that the designation of and Colorado. We also received et seq.). This rule will not impose critical habitat for the flycatcher would comments from The State of Utah’s recordkeeping or reporting requirements not have direct impacts on the Governor’s office. We have addressed on State or local governments, environment as designation is not them in the Summary of Comments and individuals, businesses, or expected to impose land use restrictions Recommendations section of the rule. organizations. An agency may not or prohibit land use activities. However, The designation of critical habitat in conduct or sponsor, and a person is not the designation of critical habitat could: areas currently occupied by the required to respond to, a collection of (1) Increase the number of additional flycatcher may impose nominal information unless it displays a section 7 consultations for proposed additional regulatory restrictions to currently valid OMB control number. projects within designated critical those currently in place and, therefore, habitat; (2) increase the number of may have little incremental impact on National Environmental Policy Act (42 U.S.C. 4321 et seq.) reinitiated section 7 consultations for State and local governments and their ongoing projects within designated activities. The designation may have It is our position that, outside the critical habitat; (3) maintain the some benefit to these governments in jurisdiction of the U.S. Court of Appeals flycatcher’s primary constituent that the areas that contain the physical for the Tenth Circuit, we do not need to elements; (4) increase the likelihood of or biological features essential to the prepare environmental analyses greater expenditures of time and Federal conservation of the species are more pursuant to the National Environmental funds to develop measures to prevent clearly defined, and the elements of the Policy Act (NEPA; 42 U.S.C. 4321 et both adverse effects to the species and features of the habitat necessary to the seq.) in connection with designating adverse modification to critical habitat; conservation of the species are critical habitat under the Act. We and (5) indirectly increase the specifically identified. This information published a notice outlining our reasons likelihood of greater expenditure of non- does not alter where and what federally for this determination in the Federal Federal funds by project proponents to sponsored activities may occur. Register on October 25, 1983 (48 FR complete section 7 consultations and to However, it may assist local 49244). This position was upheld by the develop reasonable and prudent governments in long-range planning U.S. Court of Appeals for the Ninth alternatives (to avoid adverse (rather than having them wait for case- Circuit (Douglas County v. Babbitt, 48 modification of critical habitat by by-case section 7 consultations to F.3d 1495 (9th Cir. 1995), cert. denied Federal agencies) that maintain critical occur). 516 U.S. 1042 (1996)). However, when habitat. Such an increase might occur Where State and local governments the range of the species includes States where there is a Federal nexus to require approval or authorization from a within the Tenth Circuit, such as that of actions within areas with no known Federal agency for actions that may flycatcher, under the Tenth Circuit flycatcher territories, or from the affect critical habitat, consultation ruling in Catron County Board of addition of adverse modification under section 7(a)(2) will be required. Commissioners v. U.S. Fish and Wildlife analyses to jeopardy consultations in While non-Federal entities that receive Service, 75 F.3d 1429 (10th Cir. 1996), known flycatcher habitat. Federal funding, assistance, or permits, we prepare an environmental The primary purpose of preparing an or that otherwise require approval or assessment. environmental assessment under NEPA authorization from a Federal agency for We prepared a draft environmental is to determine whether a proposed an action, may be indirectly impacted assessment for flycatcher critical habitat action would have significant impacts by the designation of critical habitat, the designation and notified the public of on the human environment. If legally binding duty to avoid its availability in the Federal Register significant impacts may result from a destruction or adverse modification of on July 12, 2012 (77 FR 41147). We also proposed action, then an environmental critical habitat rests squarely on the accepted public comments on the draft impact statement is required (40 CFR Federal agency. environmental assessment and made 1502.3). Whether a proposed action revisions in response to many of those exceeds a threshold of significance is Civil Justice Reform—Executive Order comments (see Summary of Comment determined by analyzing the context 12988 and Recommendations above). In and the intensity of the proposed action In accordance with Executive Order preparing the environmental (40 CFR 1508.27). Our environmental 12988 (Civil Justice Reform), the Office assessment, we also considered the assessment found that the impacts of the of the Solicitor has determined that the previous critical habitat designation in proposed critical habitat designation rule does not unduly burden the judicial 2005, internal scoping within the would be minor and not rise to a system and that it meets the applicable Service, a review of the previous significant level, so preparation of an standards set forth in sections 3(a) and consultation history of the species, and environmental impact statement is not

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required. Copies of our final Mexico included in the proposed from the Arizona Ecological Services environmental assessment and Finding designation of flycatcher critical habitat. Office (see FOR FURTHER INFORMATION of No Significant Impact can be found At the end of the 2007 flycatcher CONTACT). at http://www.fws.gov/southwest/es/ breeding season, 5 percent of all known Authors arizona, http://www.regulations.gov at breeding sites were administered by Docket No. FWS–R2–ES–2011–0053, Native American Tribes (Durst et al. The primary authors of this and at the Arizona Ecological Services 2007, p. 17). Using the criteria found in rulemaking are the staff members of the Office (see FOR FURTHER INFORMATION the Criteria Used To Identify Critical Arizona Ecological Services Office. CONTACT). Habitat section, we determined that all of the areas proposed for designation on List of Subjects in 50 CFR Part 17 Government-to-Government tribal lands were essential to flycatcher Relationship with Tribes Endangered and threatened species, conservation. We sought government-to- Exports, Imports, Reporting and In accordance with the President’s government consultation with these recordkeeping requirements, memorandum of April 29, 1994 tribes throughout the proposal and Transportation. (Government-to-Government Relations development of this final designation of with Native American Tribal flycatcher critical habitat, and we spoke Regulation Promulgation Governments; 59 FR 22951), Executive to tribal representatives at conferences, Accordingly, we amend part 17, Order 13175 (Consultation and meetings, and public hearings about the subchapter B of chapter I, title 50 of the Coordination With Indian Tribal designation. We communicated with Code of Federal Regulations, as set forth Governments), and the Department of tribes through letters, electronic below: the Interior’s manual at 512 DM 2, we messages, and telephone calls about our readily acknowledge our responsibility exclusion process under section 4(b)2 of PART 17—[AMENDED] to communicate meaningfully with the Act, and we provided templates and recognized Federal tribes on a information to develop management ■ 1. The authority citation for part 17 government-to-government basis. In plans, technical assistance and review continues to read as follows: accordance with Secretarial Order 3206 of management plans, and critical Authority: 16 U.S.C. 1361–1407; 16 U.S.C. of June 5, 1997 (American Indian Tribal habitat designation information and Rights, Federal-Tribal Trust 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– schedule updates. We considered these 625, 100 Stat. 3500; unless otherwise noted. Responsibilities, and the Endangered tribal areas for exclusion from final Species Act), we readily acknowledge critical habitat designation to the extent ■ 2. Amend § 17.11(h) by revising the our responsibilities to work directly consistent with the requirements of entry for ‘‘Flycatcher, southwestern with tribes in developing programs for 4(b)(2) of the Act, and subsequently, willow’’ under ‘‘BIRDS’’ in the List of healthy ecosystems, to acknowledge that excluded all tribal lands from this final Endangered and Threatened Wildlife to tribal lands are not subject to the same designation. read as follows: controls as Federal public lands, to remain sensitive to Indian culture, and References Cited § 17.11 Endangered and threatened wildlife. to make information available to tribes. A complete list of all references cited There were tribal lands in California, is available on the Internet at http:// * * * * * Utah, Arizona, Colorado, and New www.regulations.gov and upon request (h) * * *

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

******* BIRDS

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

*******

■ 3. In § 17.95, amend paragraph (b) by arroyo willow, red willow, yewleaf (Hymenoptera); dragonflies (Odonata); revising the entry for ‘‘Southwestern willow, pacific willow, boxelder, flies (Diptera); true bugs (Hemiptera); Willow Flycatcher (Empidonax traillii tamarisk, Russian olive, buttonbush, beetles (Coleoptera); butterflies, moths, extimus)’’ to read as follows: cottonwood, stinging nettle, alder, and caterpillars (Lepidoptera); and velvet ash, poison hemlock, blackberry, spittlebugs (Homoptera). § 17.95 Critical habitat—fish and wildlife. seep willow, oak, rose, sycamore, false (3) Critical habitat does not include * * * * * indigo, Pacific poison ivy, grape, (b) Birds. manmade structures (such as buildings, Virginia creeper, Siberian elm, and aqueducts, runways, roads, and other * * * * * walnut) and some combination of: paved areas) and the land on which they (A) Dense riparian vegetation with Southwestern Willow Flycatcher thickets of trees and shrubs that can are located existing within the legal (Empidonax traillii extimus) range in height from about 2 meters (m) boundaries on February 4, 2013. (1) Critical habitat units are depicted to 30 m (about 6 feet (ft) to 98 ft). Lower- (4) Critical habitat map units. Data for Inyo, Kern, Los Angeles, Riverside, stature thickets (2 to 4 m or 6 to 13 ft layers defining map units were created Santa Barbara, San Bernardino, San tall) are found at higher elevation in two steps. First, the linear segments Diego, and Ventura Counties in riparian forests, and tall-stature thickets were mapped from the National California; Clark, Lincoln, and Nye are found at middle- and lower- Hydrologic Dataset using USA Counties in southern Nevada; Kane, San elevation riparian forests; Contiguous Equidistant Conic (North Juan, and Washington Counties in (B) Areas of dense riparian foliage at American Datum 1983) coordinates. southern Utah; Alamosa, Conejos, least from the ground level up to Next, the lateral extents were digitized Costilla, and La Plata Counties in approximately 4 m (13 ft) above ground over the most recent available aerial southern Colorado; Apache, Cochise, or dense foliage only at the shrub or tree photography using Albers Equal Area Gila, Graham, Greenlee, La Paz, level as a low, dense canopy; Conic (North American Datum 1983) Maricopa, Mohave, Pima, Pinal, Santa (C) Sites for nesting that contain a coordinates. The maps in this entry, as Cruz, and Yavapai Counties in Arizona; dense (about 50 percent to 100 percent) modified by any accompanying and Catron, Grant, Hidalgo, Mora, Rio tree or shrub (or both) canopy (the regulatory text, establish the boundaries Arriba, Socorro, Taos, and Valencia amount of cover provided by tree and of the critical habitat designation. The Counties in New Mexico on the maps shrub branches measured from the coordinates or plot points or both on and as described below. ground); which each map is based are available (2) Within these areas, the primary (D) Dense patches of riparian forests to the public at the field office internet constituent elements of the physical and that are interspersed with small site (http://www.fws.gov/southwest/es/ biological features essential to the openings of open water or marsh or arizona/), http://www.regulations.gov at conservation of the southwestern areas with shorter and sparser Docket No. FWS–R2–ES–2011–0053, willow flycatcher consist of two vegetation that creates a variety of components: habitat that is not uniformly dense. and at the Arizona Ecological Services (i) Riparian vegetation. Riparian Patch size may be as small as 0.1 hectare Office. The textual description for each habitat along a dynamic river or (ha) (0.25 acre (ac)) or as large as 70 ha critical habitat unit below includes the lakeside, in a natural or manmade (175 ac). Universal Transverse Mercator (UTM) successional environment (for nesting, (ii) Insect prey populations. A variety zone and UTM easting (E) and northing foraging, migration, dispersal, and of insect prey populations found within (N) coordinate pairs for the starting and shelter) that is comprised of trees and or adjacent to riparian floodplains or ending points. shrubs (that can include Gooddings moist environments, which can include: (5) Index map of southwestern willow willow, coyote willow, Geyer’s willow, flying ants, wasps, and bees flycatcher critical habitat units follows:

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(6) Santa Ynez Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Ynez River (east) ...... 11, 259890, 3821926 ..... 11, 255550, 3823716. Santa Ynez River (middle) ...... 11, 253343, 3823606 ..... 11, 249967, 3824847. Santa Ynez River (west) ...... 10, 759116, 3832075 ..... 10, 732972, 3839168. Mono Creek ...... 11, 258529, 3824766 ..... 11, 258310, 3822974.

(ii) Map of Santa Ynez Management Unit follows:

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(7) Santa Clara Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Ventura River ...... 11, 287996, 3818329 ..... 11, 287559, 3794961. Santa Clara River ...... 11, 354467, 3810419 ..... 11, 291354, 3790556. Piru Creek ...... 11, 339998, 3831805 ..... 11, 335776, 3807951. Castaic Creek ...... 11, 351629, 3813373 ..... 11, 350055, 3809756. Big Tujunga Canyon Creek ...... 11, 376326, 3792941 ..... 11, 372432, 3792049. San Gabriel River ...... 11, 418737, 3781999 ..... 11, 410558, 3775011.

(ii) Map of Santa Clara Management Unit follows:

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(8) Santa Ana Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Ana River (east) ...... 11, 524293, 3778965 ..... 11, 491603, 3775416. Santa Ana River (middle) ...... 11, 476054, 3771257 ..... 11, 465807, 3764349. Santa Ana River (west) ...... 11, 446395, 3755315 ..... 11, 445684, 3754790. Santa Ana River (west) ...... 11, 445183, 3754633 ..... 11, 444806, 3753995. Waterman Creek (left fork) ...... 11, 473453, 3785826 ..... 11, 473755, 3785448.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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:

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(9) San Diego Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

DeLuz Creek ...... 11, 469888, 3700258 ..... 11, 470085, 3697512. Santa Margarita River ...... 11, 481662, 3699235 ..... 11, 476206, 3695949. Temecula Creek ...... 11, 517749, 3695379 ..... 11, 514170, 3698604. Pilgrim Creek ...... 11, 471495, 3681452 ..... 11, 468703, 3677979. San Luis Rey (a) ...... 11, 521911, 3678001 ..... 11, 515935, 3681292. San Luis Rey (b) ...... 11, 511327, 3681486 ..... 11, 510983, 3681512. San Luis Rey (c) ...... 11, 509443, 3679678 ..... 11, 508633, 3679673. San Luis Rey (d) ...... 11, 503450, 3681703 ..... 11, 502102, 3684334. San Luis Rey (e) ...... 11, 500948, 3684975 ..... 11, 497954, 3689280. San Luis Rey (f) ...... 11, 497754, 3689394 ..... 11, 497376, 3690144.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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:

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(10) Kern Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

South Fork Kern River (east) ...... 11, 393579, 3955510 ..... 11, 380211, 3948598. South Fork Kern River (west) ...... 11, 379924, 3948465 ..... 11, 375779, 3947268. Canebrake Creek ...... 11, 395263, 3954472 ..... 11, 393671, 3954409.

(ii) Map of Kern Management Unit follows:

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(11) Mojave Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Mojave River ...... 11, 469646, 3844680 ..... 11, 476583, 3814381. Holcomb Creek ...... 11, 503127, 3796007 ..... 11, 488326, 3794046. Deep Creek ...... 11, 488326, 3794046 ..... 11, 478190, 3800025. West Fork Mojave River ...... 11, 478190, 3800025 ..... 11, 469339, 3796375.

(ii) Map of Mojave Management Unit follows:

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(12) Salton Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Felipe Creek ...... 11, 549258, 3662280 ..... 11, 535835, 3672883. Mill Creek ...... 11, 514349, 3770661 ..... 11, 513502, 3770687.

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(ii) Map of Salton Management Unit follows:

(13) Amargosa Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Amargosa River ...... 11, 569473, 3967513 ..... 11, 570730, 3958035. Willow Creek ...... 11, 574000, 3962736 ..... 11, 572077, 3960419. Soda Springs—Ash Meadows NWR ...... 11, 559404, 4038346 ..... 11, 559130, 4038028. Lower Fairbanks—Ash Meadows NWR ...... 11, 557831, 4036089 ..... 11, 557907, 4035290. Crystal Reservoir–Ash Meadows NWR ...... 11, 561026, 4028705 ..... 11, 561308, 4028268. North Tubbs—Ash Meadows NWR ...... 11, 562783, 4025401 ..... 11, 562971, 4025329. South Tubbs—Ash Meadows NWR ...... 11, 563507, 4025681 ..... 11, 563484, 4025649.

(ii) Map of Amargosa Management Unit follows:

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(14) Little Colorado Management (i) Unit.

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

West Fork Little Colorado River ...... 12, 636971, 3758442 ..... 12, 642537, 3763668. Little Colorado River ...... 12, 642537, 3763668 ..... 12, 647842, 3773009.

(ii) Map of Little Colorado Management Unit follows:

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(15) Virgin Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Virgin River ...... 12, 288341, 4116050 ..... 12, 201782, 4048748.

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(ii) Map of Virgin Management Unit follows:

(16) Pahranagat Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Pahranagat River ...... 11, 666731, 4128006 ..... 11, 665370, 4131144.

(ii) Map of Pahranagat Management Unit follows:

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(17) Bill Williams Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Big Sandy River ...... 12, 261621, 3843406 ..... 12, 259631, 3818574. Big Sandy River (Alamo Lake) ...... 12, 266124, 3806764 ..... 12, 267166, 3799203. Santa Maria River (Alamo Lake) ...... 12, 274410, 3798130 ..... 12, 267166, 3799203. Bill Williams River (Alamo Lake) ...... 12, 263610, 3795533 ..... 12, 267166, 3799203. Bill Williams River (middle) ...... 12, 254565, 3788878 ..... 12, 240599, 3791815. Bill Williams River (west) ...... 12, 229050, 3794316 ..... 11, 219463, 3796378.

(ii) Map of Bill Williams Management Unit follows:

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(18) San Juan Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Los Pinos River ...... 13, 270002, 4121643 ..... 13, 269247, 4127372. San Juan River (north bank) (a) ...... 12, 645196, 4125489 ..... 12, 644259, 4125816. San Juan River (north bank) (b) ...... 12, 643496, 4126221 ..... 12, 643087, 4126308. San Juan River (north bank) (c) ...... 12, 642048, 4126642 ..... 12, 641584, 4126669. San Juan River (north bank) (d) ...... 12, 639237, 4127496 ..... 12, 638861, 4126738.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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:

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(19) Powell Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Paria River ...... 12, 417429, 4120619 ..... 12, 419459, 4107235.

(ii) Map of Powell Management Unit follows:

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(20) Verde Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Verde River (north) (a) ...... 12, 402583, 3854022 ..... 12, 417654, 3832237. Verde River (north) (b) ...... 12, 417505, 3832092 ..... 12, 417501, 3831831. Verde River (north) (c) ...... 12, 417492, 3831154 ..... 12, 417486, 3830684. Verde River (north) (d) ...... 12, 418260, 3830003 ..... 12, 420778, 3821249. Verde River (north) (e) ...... 12, 420842, 3821249 ..... 12, 420946, 3821249.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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:

(21) Roosevelt Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Tonto Creek ...... 12, 477856, 3734906 ..... 12, 474349, 3773074. Salt River ...... 12, 500594, 3724174 ..... 12, 518565, 3725825.

(ii) Map of Roosevelt Management Unit follows:

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

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Gila River ...... 12, 527193, 3660545 ..... 12, 476979, 3662407. San Pedro River (d) ...... 12, 566945, 3554766 ..... 12, 525343, 3640631.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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:

(23) Upper Gila Management Unit. (i)

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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.

(ii) Map of Upper Gila Management Unit follows:

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(24) Santa Cruz Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Cruz River ...... 12, 502742, 3480432 ..... 12, 495504, 3501179. Cienega Creek ...... 12, 543034, 3528728 ..... 12, 538757, 3515860. Empire Gulch (west) ...... 12, 534569, 3516911 ..... 12, 534222, 3516970. Empire Gulch (confluence with Cienega Creek) ...... 12, 538826, 3519337 ..... 12, 538662, 3518116.

(ii) Map of Santa Cruz Management Unit follows:

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(25) San Francisco Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Francisco River (north) (west segment) ...... 12, 666982, 3748335 ..... 12, 675606, 3745177. San Francisco River (north) (east segment) ...... 12, 678191, 3744748 ..... 12, 699562, 3745269. San Francisco River (middle) (New Mexico) ...... 12, 693857, 3703486 ..... 12, 697331, 3680357. San Francisco River (south) (Arizona) ...... 12, 661571, 3670502 ..... 12, 681790, 3679428.

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(ii) Map of San Francisco Management Unit follows:

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

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Hassayampa River ...... 12, 342308, 3757092 ..... 12, 345848, 3751261.

(ii) Map of Hassayampa and Agua Fria Management Unit follows:

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

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

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.

(ii) Map of San Luis Valley Management Unit follows:

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

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Rio Grande (north) ...... 13, 434154, 4021496 ..... 13, 404034, 3994489. Rio Grande (south) ...... 13, 403328, 3985181 ..... 13, 403319, 3986279. Coyote Creek ...... 13, 479246, 4005468 ..... 13, 480419, 3997620. Rio Grande del Rancho ...... 13, 447971, 4012369 ..... 13, 446044, 4021640. Rio Fernando ...... 13, 447152, 4028423 ..... 13, 446856, 4028320.

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

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

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Rio Grande ...... 13, 343067, 3856213 ..... 13, 298922, 3683834.

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

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* * * * * 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

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