March 13, 2015 Via the Federal eRulemaking Portal Docket No. Attn: Docket No. FWS–R8–ES–2013–0011; 4500030114 Public Comments Processing Division of Policy and Directives Management U.S. Fish and Wildlife Service Main Office 300 E. University Blvd., #120 Tucson AZ 85705 4401 N. Fairfax Drive TEL 520.629.0510 FAX 520.623.3476 MS 2042–PDM Tucson Audubon’s Mason Center 3835 W Hardy Road Arlington, VA 22203 Tucson AZ 85742 Karen Fogas Executive Director TEL 520.209.1801 Re: Proposed Western Yellow-billed Cuckoo Critical Habitat Designation [email protected] Dear Director Ashe: Established in 1949, the Tucson Audubon Society (Tucson Audubon) is a 501(c)(3) non-profit conservation organization. We are the third largest local Audubon chapter in the nation and write to you on behalf of our membership in excess of 5,000 citizens. Tucson Audubon promotes the protection and stewardship of southeast Arizona’s biological diversity through the study and enjoyment of birds and the places they live. Tucson Audubon advocates statewide for the sustainability, resilience, preservation, restoration and connectivity of habitats utilized by birds and other wildlife, with special emphasis on riparian habitats and their associated uplands. Tucson Audubon Society appreciates the opportunity to respond to the U.S. Fish and Wildlife Service’s (FWS) request for comments on the proposed designation of critical habitat for the federally threatened Distinct Population Segment (DPS) of the Western Yellow-billed Cuckoo (Coccyzus americanus occidentalis - WYBC). See: Fed. Reg. Vol 79 No. 158 50 CFR Part 17 (August 15, 2014). Due to recent staffing changes at Tucson Audubon, we submit our comments to you after the deadline stated in the Federal Register notice. However, we hope that our comments have arrived in time to be fully considered and to contribute to your deliberations. In addition to the comments provided herein, Tucson Audubon concurs with comments submitted on the proposed CHD by the American Bird Conservancy (ABC), Audubon Arizona et al., the Lower San Pedro Watershed Alliance (LSPWA), Cascabel Conservation Association (CCA) and Friends of the San Pedro River (FSPR). Background The rapid population decreases and range reductions of the Western Yellow-billed Cuckoo prompted petitions for the western distinct population segment to be listed by the US Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) as early as 1998 (e.g., Center for Biological Diversity, 1998). A settlement agreement with WildEarth Guardians, approved by the District Court in September 2011 and affirmed by the Federal Court of Appeals in 2013, requires the Fish and Wildlife Service to address 252 candidate species for listing under the Endangered Species Act before the end of FY 2016. The WYBC is one of these candidate species. In accordance with the settlement agreement, on October of 2014, the FWS issued a final determination that listed the Western DPS of the Yellow-billed Cuckoo as a threatened species under the ESA (79 FR 59991 60038). In western North America, large declines in distribution and abundance of WYBC have occurred as a result of loss, degradation, and fragmentation of riparian habitat by agriculture and residential development (Dobkin 1994), flood control (Laymon and Halterman 1987, 1989), invasion by less desirable salt cedar (Tamarix spp.; Hughes 1999), mining, dams, water withdrawals, pesticides, stochastic extinctions and low colonization rates. In Arizona, WYBCs were relatively widespread 50 years ago (Phillips et al., 1964). Today, WYBC are well documented breeding regularly in relatively isolated populations along the Gila, San Pedro, Bill Williams, Salt, Verde, and Colorado Rivers. Southwestern riparian habitats, the lush ribbons of vegetation running along our streams and rivers, contain the highest density and diversity of bird species outside of tropical rain forests. The vast majority of riparian bottomland forests in the southwestern United States have been modified or lost, and these alterations and losses are attributable to the synergistic impacts of woodcutting, urban and agricultural encroachment, water diversion and impoundment, channelization, groundwater pumping, livestock overgrazing, and hydrologic changes resulting from various land-use practices (Carothers 1977, pp. 2–3; Kusler 1985, p. 6; Jahrsdoerfer and Leslie 1988, pp. 17–36; USGAO 1988, p. 8; Szaro 1989, pp. 73–81; State of Arizona 1990, pp. 1–5; Bahre 1991, pp. 119–151). The Arizona Game and Fish Department (AGFD) stated that 90 percent of the Arizona’s riparian habitat had been lost in their November 1988 issue of Wildlife Views (AGFD 1988). Riparian areas are critical elements where biological diversity is at its highest and are valued for their higher water availability, vegetation density, and biological productivity. They are the main 2 arteries for hydro-geological and biological processes and facilitate landscape-level habitat connectivity for a wide variety of wildlife. Therefore, the final CHD should reflect the WYBC’s need for biological connectivity at landscape and regional scales. Law, Regulation and Procedural Guidance Governing Critical Habitat Designation The designation of critical habitat must be made on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may only exclude an area from critical habitat if he or she determines, based on the best scientific data available, that the benefits of such exclusion outweigh the benefits of designation and that the failure to designate the area as critical habitat will not result in the extinction of the species. Critical habitat shall include “the specific areas within the geographical area occupied by the species… on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” 16 U.S.C. § 1532(5)(A). It also must include areas outside the area occupied by the species at the time of listing if such areas are “essential for the conservation of the species.” Id. “Conservation” is in turn defined as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Id. § 1532(3). Courts have construed this definition of conservation, and thus the requirements for critical habitat, to require steps to promote the recovery of the species and not merely avoid jeopardy. See, e.g., Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004); Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2007). Section 3(5)(A)(i) of the ESA and its implementing regulations at 50 C.F.R. § 424.12, require FWS, when determining areas to propose as critical habitat, to consider areas containing the physical and biological features (PBFs) that are essential to the conservation of the species and may require special management considerations or protection. 78 Fed. Reg. at 18006. These features are the specific primary constituent elements (PCEs)—laid out in the appropriate quantity and spatial arrangement for the conservation of the species—and they include, but are not limited to: 3 (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. 50 C.F.R. § 424.12(b). Any one or more of the identified PCEs sufficient to support the life history processes of the species may qualify an area for designation as critical habitat. The FWS Listing Handbook further instructs the agency to, among other things: 1. Carefully evaluate the biology, status, and needs of the species, then determine what areas will best serve the species as critical habitat. These areas can include the entire known range, portions thereof, and/or additional suitable habitat or areas in need of restoration. 2. Critical habitat boundaries and size should be determined using great care and attention to detail. Keep them as simple as possible, yet accurate. 3. Carefully consider population or range variations over time. Be sure all included areas are thoroughly justified by one or more of the criteria in 424.12(b). Few species have static distributions. Allow for species dynamics in the critical habitat. If the species requires ephemeral habitats, consider where the future habitats might be relative to the present ones. Endangered Species Listing Handbook: Procedural Guidance for the Preparation and Processing of Rules and Notices Pursuant to the Endangered Species Act, Fourth Edition (March 1994), at 103 (emphasis added)1 Tucson Audubon takes the position that the proposed WYBC critical habitat designation is a solid starting point, but should be expanded to more comprehensively reflect WYBC occupancy 1 Available online at: http://training.fws.gov/EC/Resources/ES_Listing_and_Candidate_Assessment/ESA%20Folder/FWS%20Listing%20Handbook.pdf 4 at the time of listing, as well as additional suitable habitats. In addition to documented