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DEPARTMENT OF THE INTERIOR Executive Summary essential to the conservation of the Scope of this rule. The information species and (II) which may require Fish and Wildlife Service presented in this final rule pertains only special management considerations or to the western distinct population protections; and (ii) specific areas 50 CFR Part 17 segment of the yellow-billed cuckoo outside the geographical area occupied (western yellow-billed cuckoo) (DPS). by the species at the time it is listed, [Docket No. FWS–R8–ES–2013–0011; upon a determination by the Secretary FF09E21000 FXES11110900000 212] Any reference to the ‘‘species’’ or to the western yellow-billed cuckoo within that such areas are essential for the conservation of the species. Section RIN 1018–BE29 this document only applies to the DPS and not to the yellow-billed cuckoo as 4(b)(2) of the Act states that the Secretary must make the designation on Endangered and Threatened Wildlife a whole unless specifically expressed. A the basis of the best scientific data complete description of the DPS and and Plants; Designation of Critical available and after taking into area associated with the DPS is Habitat for the Western Distinct consideration the economic impact, the contained in the proposed and final Population Segment of the Yellow- impact on national security, and any listing rules for the western yellow- Billed Cuckoo other relevant impacts of specifying any billed cuckoo published in the Federal particular area as critical habitat. AGENCY: Fish and Wildlife Service, Register (78 FR 61621, October 3, 2013, Section 4(b)(2) also authorizes the Interior. and 79 FR 59992, October 3, 2014). Secretary to exclude areas from the ACTION: Final rule. Why we need to publish a rule. Under critical habitat if the benefits of the Endangered Species Act of 1973, as excluding the areas outweigh the SUMMARY: We, the U.S. Fish and amended (16 U.S.C. 1531 et seq.; benefits of including the areas, unless Wildlife Service (Service), designate hereafter ‘‘Act’’ or ‘‘ESA’’), any species exclusion would result in extinction of critical habitat for the western distinct that is determined to be an endangered population segment of the yellow-billed the species. or threatened species requires critical Peer review and public comment. We cuckoo (western yellow-billed cuckoo) habitat to be designated, to the (Coccyzus americanus) under the sought comments from six independent maximum extent prudent and specialists to ensure that our Endangered Species Act. In total, determinable. Designations and approximately 298,845 acres (120,939 designation is based on scientifically revisions of critical habitat can only be sound data and analyses. In 2014, we hectares) are now being designated as completed by issuing a rule. critical habitat in Arizona, California, obtained opinions from four What this document does. This is a knowledgeable individuals with Colorado, Idaho, New Mexico, Texas, final rule to designate critical habitat for and Utah. This rule extends the Act’s scientific expertise to review our the western yellow-billed cuckoo. This technical assumptions, analysis, and protections to critical habitat for this final designation of critical habitat species. whether or not we had used the best identifies areas that we have scientific data available. These peer DATES: This rule is effective May 21, determined, based on the best scientific reviewers generally concurred with our 2021. and commercial information available, methods and conclusions and provided are essential to the conservation of the ADDRESSES: additional information, clarifications, This final rule is available species or otherwise essential for its on the internet at http:// and suggestions to improve this final conservation. After exclusions of areas rule. Information we received from peer www.regulations.gov, and the under section 4(b)(2) of the Act, the Sacramento Fish and Wildlife Office review is incorporated in this final final critical habitat comprises 63 units designation of critical habitat. We also website at http://www.fws.gov/ and is located in the States of Arizona, sacramento. Comments and materials received comments from one of the peer California, Colorado, Idaho, New reviewers on our 2020 revised proposed we received, as well as supporting Mexico, Texas, and Utah. The total documentation we used or developed in rule. We considered all comments and change in area as a result of exclusions information received from the peer preparing this rule, are available for or changes from the revised proposed public inspection at http:// reviewer, species experts, and the designation is a reduction of public during the comment period for www.regulations.gov at Docket No. approximately 194,820 acres (ac) FWS–R8–ES–2013–0011. the 2014 proposed and the 2020 revised (78,840 hectares (ha)). In addition, some proposed designation of critical habitat. The coordinates or plot points or both of the areas removed did not contain the from which the maps are generated are physical or biological features or meet Previous Federal Actions included in the decisional record for our criteria for critical habitat for the On October 3, 2013 (78 FR 61621), we this critical habitat designation and are western yellow-billed cuckoo and were published a proposed rule to list the available at http://www.regulations.gov identified based on comments or western distinct population segment at Docket No. FWS–R8–ES–2013–0011 additional review. The total area (DPS) of the yellow-billed cuckoo as and on the Service’s website at http:// excluded is approximately 172,490 ac threatened. On August 15, 2014 (79 FR www.fws.gov/sacramento. (69,808 ha). 48547), we published a proposed rule to FOR FURTHER INFORMATION CONTACT: The basis for our action. Section designate critical habitat for the DPS. Michael Fris, Field Supervisor, U.S. 4(a)(3) of the Act requires the Secretary On October 3, 2014 (79 FR 59992), we Fish and Wildlife Service, Sacramento of the Interior (Secretary) to designate published the final listing rule, which Fish and Wildlife Office, 2800 Cottage critical habitat concurrent with listing to added the western yellow-billed cuckoo Way, Room W–2605, Sacramento, the maximum extent prudent and to the List of Endangered and California 95825; or by telephone 916– determinable. Section 3(5)(A) of the Act Threatened Wildlife in title 50 of the 414–6600. If you use a defines critical habitat as (i) the specific Code of Federal Regulations at 50 CFR telecommunications device for the deaf areas within the geographical area 17.11(h) as a threatened species. On (TDD), call the Federal Relay Service occupied by the species, at the time it February 27, 2020 (85 FR 11458), we (FRS) at 800–877–8339. is listed, on which are found those published a revised proposed critical SUPPLEMENTARY INFORMATION: physical or biological features (I) habitat designation and opened a public

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comment period that closed on April 27, designation all lands that were dynamic and may change condition or 2020. On September 16, 2020 (85 FR identified as proposed critical habitat location within or between years 57816), we published a not-warranted within the planning area. depending on environmental 12-month finding on a petition to delist (5) The U.S. Forest Service (USFS) conditions, vegetation growth, tree the western yellow-billed cuckoo. suggested that the Tucson Audubon regeneration, plant maturity, stream Please refer to the proposed and final Society (MacFarland and Horst 2015) dynamics, and sediment movement and listing and revised proposed critical did not survey Unit 44 (AZ–32, deposition. The species’ major food habitat rules for the western yellow- California Gulch). We corrected the unit resources (insects) are also similarly billed cuckoo published in the Federal description with survey information variable in abundance and distribution. Register for a detailed description of used to determine occupancy for this As a result, the western yellow-billed previous Federal actions concerning this unit. cuckoo’s use of an area is tied to the species. (6) We updated the climate change area’s habitat condition and food information with new references based resources, which as stated, can be Summary of Changes From the Revised on comments. variable between and within years. This Proposed Rule (7) We corrected a number of errors in variability in resources may cause the We reviewed the site-specific unit length, acreage, and descriptions. western yellow-billed cuckoo to move comments related to critical habitat for (8) We clarified that Rockhouse between areas in its wintering or the western yellow-billed cuckoo (see Demonstration Site on the Salt River breeding grounds to take advantage of Summary of Comments and inflow to Roosevelt Lake was not habitat conditions and food availability. Recommendations), completed our included as critical habitat. For a thorough discussion of the analysis of areas considered for (9) In the revised proposed rule, we western yellow-billed cuckoo’s biology exclusion under section 4(b)(2) of the failed to identify potential exclusions and natural history, including limiting Act, reviewed our analysis of the for San Carlos Apache parcels on the factors and species resource needs, Physical or biological features (PBFs) lower San Pedro River and Aravaipa please refer to the proposed and final essential to the long-term conservation Creek and for Eagle Creek on the San rules to list this species as threatened of the western yellow-billed cuckoo, Carlos Apache Tribal lands. These published in the Federal Register on reviewed the application of our Tribal lands have been excluded. We October 3, 2013 (78 FR 61621), and conservation strategy and criteria for corrected ownership and operation of October 3, 2014 (79 FR 59992), identifying critical habitat across the San Carlos Apache Reservoir and (available at http://www.regulations.gov range of the western yellow-billed Coolidge Dam. at Docket No. FWS–R8–ES–2013–0104), cuckoo to refine our designation, and Supporting Documents and the proposed critical habitat rule, completed the economic analysis of the which published August 15, 2014 (79 designation. This final rule incorporates In the revised proposed critical FR 48548) (available at http:// changes to our 2020 revised proposed habitat rule, we stated that a draft www.regulations.gov at Docket No. critical habitat rule based on the analysis document under the National FWS–R8–ES–2013–0011). comments that we received, and have Environmental Policy Act (NEPA) for Summary of Comments and responded to in this document, and the designation of critical habitat was Recommendations considers efforts to conserve the western made available to the public for yellow-billed cuckoo. comment. We have now finalized an We requested written comments from As a result, our final designation of environmental assessment with a the public on the initial proposed (2014) critical habitat reflects the following finding of no significance under NEPA. and revised proposed (2020) designation changes from the February 27, 2020, The document and finding of no of critical habitat for the western revised proposed rule (85 FR 11458): significance is available at http:// yellow-billed cuckoo during multiple (1) We revised unit areas based on www.regulations.gov at Docket No. comment periods. The first comment comments received regarding areas that FWS–R8–ES–2013–0011 and from the period opened on August 15, 2014, and did or did not contain the physical or Sacramento Fish and Wildlife Office at closed on October 14, 2014 (79 FR biological features essential to the http://www.fws.gov/sacramento. See 48548). The comment period was conservation of the species. Required Determinations section below reopened from November 12, 2014, to (2) We revised Federal, Tribal, and for a discussion of our NEPA obligations January 12, 2015 (79 FR 67154). On private land ownership information for this designation. December 2, 2014, we announced a regarding Unit 70 (UT–1) based on We also finalized our information public hearing which was held in information received from Duchesne pertaining to our economic analysis Sacramento, California, on December County, Utah. after considering public comment on the 18, 2014 (79 FR 71373). On February 27, (3) We excluded approximately draft document. The final document 2020, we opened a comment period on 172,490 ac (69,808 ha) from entire or (IEc 2020, entire) is available at http:// the revised proposed critical habitat (85 portions of Units as identified in Table www.regulations.gov at Docket No. FR 11458). The comment period closed 3, Areas Excluded by Critical Habitat FWS–R8–ES–2013–0011. on April 27, 2020. Unit. In our 2014 proposed rule designating (4) In the revised proposed rule, we Species Information critical habitat, we contacted misidentified the acreage of off-site The western yellow-billed cuckoo is a appropriate Federal, State, Tribal restoration areas identified in the Lower migratory bird species, traveling governments, and local agencies; Colorado River Multi-Species between its wintering grounds in scientific organizations; and other Conservation Program Habitat Central and South America and its interested parties, and invited them to Conservation Plan (LCR MSCP HCP). breeding grounds in North America comment on the proposed critical We now acknowledge this (Continental United States and Mexico) habitat designation and 2014 draft miscalculation and as a result of the each spring and fall often using river economic analysis. We also held a HCP providing conservation for the corridors as travel routes. Habitat public hearing in December 2014 in western yellow-billed cuckoo and its conditions through most of the western Sacramento, California, and received habitat, we are excluding from this yellow-billed cuckoo’s range are often comments from scientific experts,

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landowners, and other stakeholders addressed the 2014 and 2020 peer conservation strategy and criteria for regarding the proposed designation. On reviewer comments in this final rule as identifying occupied areas is supported February 27, 2020, with the publication appropriate. by existing information on species’ of the revised proposed rule (85 FR We reviewed all the comments we abundance and distribution. In our 11458), we again contacted all received from the peer reviewers for analysis, we found that existing habitat interested parties including appropriate substantive issues and new information availability along the Sacramento River Federal and State agencies, Tribal regarding the western yellow-billed is sufficient to support a larger number governments, scientific experts and cuckoo and its habitat use and needs. of breeding birds. As a result, in this organizations, and other interested The peer reviewers generally concurred final rule, we do not include additional parties and invited them to submit with the information regarding the unoccupied areas, especially if those written comments on the revised western yellow-billed cuckoo and its areas have not been restored to contain proposal by April 27, 2020. We stated habitat. In some cases, they provided the habitat features necessary for the that any comments received as a result additional information, clarifications, species. of the 2014 proposed rule need not be and suggestions to improve the Comment 3: One peer reviewer resubmitted and that they would be designation. Our revised designation suggested including areas along river addressed in this final rule. Newspaper was developed in part to address some segments to allow for natural stream notices inviting general public comment of the concerns and information raised processes such as bank cutting and were published in numerous locations by the 2014 peer reviewers. The deposition to occur, especially when throughout the range of the critical reviewers also provided or corrected hardened banks limit this natural habitat designation for both the original references we cited in the proposed process, thereby limiting the and revised proposed rules. rule. The additional details and establishment of riparian vegetation. During the comment period on the information have been incorporated into Our Response: In determining 2014 proposed rule, we received nearly this final listing rule as appropriate. boundaries for the critical habitat along 1,200 written comments as well as over Substantive comments we received from river segments, we evaluated aerial 87,000 form letters on the proposed peer reviewers as well as Federal, State, imagery to map those vegetated areas critical habitat designation or the draft Tribal, and local governments, along the river segments that we economic analysis (IEc 2013, entire). nongovernmental organizations, and the determined contain the physical or During the comment period on the public are outlined below. biological features (PBFs) essential to revised proposed rule, we received an Comment 1: One peer reviewer the conservation of the species and additional 99 comment letters and over recommended discussion of the role which may require special management 6,000 form letters on the revised nonnative plant species other than considerations or protection. In most proposed critical habitat designation or tamarisk (salt cedar) (Tamarix spp.) play cases, we included areas along rivers the draft economic analysis (IEc 2019, in supporting western yellow-billed and streams that would allow for entire; IEc 2020, entire). We also cuckoo. The peer reviewer noted that natural stream processes such as cutting received from several parties additional particularly in western Colorado, and deposition that would allow for requests for exclusion of areas that were Russian olive (Elaeagnus angustifolia) such meandering of the river to take not identified in the revised proposed forms dense stands dominating the place. understory of the largest cottonwood rule. We reviewed each exclusion Federal Agency Comments request and whether the requester galleries along areas identified as provided information or a reasoned critical habitat. The peer reviewer Comment 4: USFS stated that the rationale to initiate an analysis or provided information on a confirmed critical habitat designation in Unit 64 support an exclusion (see Policy nest on July 21, 2008, in Russian olive CA–2 at Lake Isabella, California, could Regarding Implementation of Section in revised proposed Unit 69 (CO–2) affect recreation and grazing 4(b)(2) of the Endangered Species Act: along the North Fork of the Gunnison opportunities on USFS lands. The U.S. 81 FR 7226; February 11, 2016). All River near the town of Hotchkiss. The Army Corps of Engineers (Corps) also substantive information provided peer reviewer commented that the commented that designating areas during each comment period has either possible effects to western yellow-billed within the floodplain would disrupt been incorporated directly into this final cuckoo and its habitat should be flood control operations and that determination or addressed in our considered during widespread removal portions of the unit within the responses below. of Russian olive and the reviewer floodplain of Lake Isabella under recommended rapid replacement with conservation easement should be Peer Review native shrubs. removed or excluded. In accordance with our peer review Our Response: In response to this Our Response: As a result of the policy published on July 1, 1994 (59 FR comment, in the 2020 revised proposed Federal agency and other public 34270), and our August 22, 2016, critical habitat, we included discussion comments (Kern County and Kern River memorandum updating and clarifying of the presence and use of nonnative Watermaster) on the 2014 proposed the role of peer review actions under the plant species, including Russian olive, designation and discussions with the Act, we solicited expert opinion on the in western yellow-billed cuckoo habitat Corps since the publication of the 2020 2014 proposed critical habitat from six (85 FR 11458, at pp. 11466, 11469, revised proposed designation, we knowledgeable individuals with 11473). revised the extent of the critical habitat scientific expertise that includes Comment 2: One peer reviewer within Unit 64 at Lake Isabella to avoid familiarity with the western yellow- suggested adding additional areas along those areas typically inundated by the billed cuckoo and its habitat, biological the Sacramento River, California, based lake or areas within the floodplain. needs, and threats. We received on future plans for restoration of those Although the western yellow-billed responses from four of the peer sites. cuckoo may use these areas during reviewers. In 2020, during the public Our Response: We based our periods of drought or other times when comment period, we received comments designation of areas by selecting the lake is drawn down, these areas are from one of the peer reviewers regarding occupied breeding habitat for the temporary and extremely variable and our revised proposed rule. We western yellow-billed cuckoo. Our may not contain the physical or

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biological features on a long-term basis. National Forest Land Management Plan the critical habitat designation, the We also identified and excluded and Allotment Management Plans, may commenters provided general portions of the unit under conservation be in compliance with grazing standards statements of their desire to be excluded easement under section 4(b)(2) of the but may still result in reduced riparian but no information or reasoned rationale Act. Our rationale for excluding certain habitat quality and quantity over time as described in our preamble discussion portions of the unit is outlined below. for western yellow-billed cuckoos. in our policy on exclusions (see Policy See Exclusions, Private or Other Non- Comment 7: The Department of Regarding Implementation of Section Federal Conservation Plans or Energy (DOE) through the Western Area 4(b)(2) of the Endangered Species Act: Agreements and Partnerships, in Power Administration (WAPA) and two 81 FR 7226; February 11, 2016) (Policy General. local private energy companies on Exclusions) or as described in our Comment 5: The Corps requested requested information on how 2020 revised proposed rule (85 FR exclusion of Unit 4 (AZ–2) and the maintaining rights-of-way for electrical 11502). For the Service to properly portion of Unit 31 (AZ–29) for operation power transmission lines would be evaluate an exclusion request, the and maintenance of Alamo Dam and treated in areas of critical habitat and commenter must provide information Lake in Arizona. requested that these areas be excluded concerning how their rights-of-way Our Response: We identified the from the designation. The commenters maintenance activities would be limited entire Unit 4 (AZ–2) at Alamo Lake and stated that the designation would limit or curtailed by the designation, and a portion of Unit 31 (AZ–29) upstream maintenance of the rights-of-way and hence the need for exclusion. In of the lake on Big Sandy River for potentially cause increased risk of addition, as noted above, the possible exclusion in our proposed rule wildfires, power outages, or injury to requirement to consult with us on and have excluded these areas based on human life and property. Federal actions that may affect the Arizona Game and Fish Department Our Response: With respect to rights- designated critical habitat is designed to (AGFD) Alamo Lake State Wildlife Area of-way maintenance activities in areas allow actions to proceed while avoiding management plan. We also acknowledge of critical habitat, Federal agencies that destruction or adverse modification of the multi-year process underway among authorize, carry out, or fund actions that critical habitat. the Corps and partners to develop a may affect listed species or designated In the Policy on Exclusions, we long-term operation plan for Alamo critical habitat are required to consult outline the procedures we undertake Dam and Lake that benefits with us to ensure the action is not likely when determining if an area should or environmental resources while meeting to jeopardize listed species or destroy or should not be excluded. In determining the dam’s maintenance needs (USACE adversely modify designated critical whether or not to exclude an area, the 2020, entire). Although the original habitat. This consultation requirement Secretary is given a great deal of authority for the Corps’ Alamo Dam and under section 7 of the Act is not a discretion for undertaking an exclusion Lake was for flood control, the Water prohibition of Federal agency actions; analysis or determining to exclude an Resources Development Act of 1996 rather, it is a means by which they may area. In our review of their request of (Pub. L. 104–303) authorized the proceed in a manner that avoids exclusion, we determined that the effect operation of the dam to provide fish and jeopardy or adverse modification. Even of having critical habitat designated in wildlife benefits both upstream and in areas absent designated critical their rights-of-way would be to require downstream of the dam as long as these habitat, if the Federal agency action may consultation with us for those Federal actions do not reduce flood control and affect a listed species, consultation is agency actions that may affect such recreation benefits. The revised still required to ensure the action is not designated critical habitat. In addition, operations are designed to improve the likely to jeopardize the species. Because we determined that this consultation currently degraded riparian western the areas designated as critical habitat requirement would not preclude these yellow-billed cuckoo and southwestern are occupied and consultation will be rights-of-way maintenance activities willow flycatcher habitat (Empidonax required to meet the jeopardy standard, from occurring, and subsequently would traillii extimus) by providing the the impact of the critical habitat not result in a potential for increased magnitude, timing, and duration of flow designation should be minimal and risk of wildfires, power outages, or that encourages regeneration and administrative in nature. In some injury to human life and property. maintenance of riparian vegetation instances, we have worked with entities Comment 8: The U.S. Bureau of (USACE 2020, pp. 14–16). Benefits are with on-going maintenance Reclamation (Reclamation) requested expected both upstream and requirements such as in rights-of-way to that the full pools of Elephant Butte and downstream of Alamo Dam (see develop programmatic consultations Caballo Reservoirs be excluded from Exclusions, Private or Other Non- that help to conserve habitat while still critical habitat designation based on a Federal Conservation Plans or meeting an entity’s operational precedent set by the Rio Grande silvery Agreements and Partnerships, in responsibilities, and we are willing to minnow (Hybognathus amarus) General). meet with DOE and WAPA to discuss designated critical habitat, a variety of Comment 6: The USFS reiterated that potential programmatic consultation commitments associated with section 7 overgrazing does not occur on most of activities. In addition, existing consultations and their Southwestern the 20 units in the Coronado National consultation processes also allow for Willow Flycatcher and Yellow-billed Forest that were proposed as critical emergency actions for wildfire and other Cuckoo Management Plan. The full pool habitat. The USFS requested removal of risks to human life and property; critical of Elephant Butte Reservoir is the statement regarding overgrazing habitat would not prevent the considered to be River Mile (RM) 62 by from the final rule. commenters from fulfilling those Reclamation. Our Response: Our discussion of obligations. Lastly, we note that actions Our Response: The Service commends overgrazing is in reference to the special of private entities for which there is no Reclamation on their decision to allow management and protections that may Federal nexus (i.e., undertaken with no for the temporary habitat to develop be required in areas identified as critical Federal agency involvement) do not within Elephant Butte and Caballo habitat. Grazing operations that are trigger any requirement for consultation. Reservoirs and other commitments properly managed, such as USFS lands In regard to the commenter’s request identified in their Southwestern Willow under management under the Coronado to exclude their rights-of-way areas from Flycatcher and Yellow-billed Cuckoo

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Management Plan. We have reviewed Unit 11 (AZ–9B Horseshoe Dam) side of the U.S./Mexico border in the information presented by segment where PBFs are lacking does California, Arizona, and New Mexico. Reclamation for Elephant Butte not constitute critical habitat. The Our Response: We have reviewed Reservoir and information on the southern terminus of this extension is DHS/CBP’s request and have excluded species use and habitat conditions for now the same as the terminus of the the 60-ft (18-m) area of the Roosevelt the western yellow-billed cuckoo and critical habitat for the southwestern Reservation from the final designation. determined that an exclusion for willow flycatcher. In the revised Please see Exclusions (Exclusions Based Elephant Butte Reservoir (Unit 37, NM– proposed rule, we identified portions of on Impacts on National Security and 6B) to RM 54 is appropriate for Unit 11 (AZ–9A and AZ–9B) for Homeland Security) for our analysis of exclusion. consideration to be excluded under the the DHS/CBP request for exclusion for We also reviewed Reclamation’s Salt River Project’s (SRP’s) Horseshoe border units within the Roosevelt request for excluding the two areas and Bartlett Reservoir HCP and Reservation. associated with Caballo Reservoir (Unit excluded these areas from the final Comment 12: The U.S. International 39, NM–8A and NM–8B) and designation (see Private or Other Non- Boundary and Water Commission determined that exclusion of these areas Federal Conservation Plans Related to (IBWC), expressed concern that the is appropriate. See Exclusions (Federal Permits Under Section 10 of the Act). designation of critical habitat along the Lands) for our description and analysis Comment 10: Reclamation requested a Rio Grande and other areas (Units 1, 2, for excluding Elephant Butte and correction to our description of how 37, 39, and 41) would hinder the Caballo Reservoirs under section 4(b)(2) western yellow-billed cuckoo habitat is implementation of the 1906 Convention of the Act from the final designation. maintained in Unit 1 (CA/AZ–1) and with Mexico or the requirements to Comment 9: Reclamation is concerned Unit 2 (CA/AZ–2) as a result of the LCR deliver water under the Rio Grande that critical habitat could impose MSCP. Reclamation points out the Compact. Therefore they requested unnecessary burdens on water storage inaccuracy of the statement that the exclusion of their lands from these and delivery operations in Arizona for hydrologic processes needed to units. IBWC also requested an exclusion Reclamation and its partners. The areas regenerate and maintain breeding of Unit 20 (AZ–18 Santa Cruz River) to of concern include: Habitat downstream habitat occur within these units but ensure its permit requirements and of Horseshoe Dam (Unit 11, AZ–9A); the depends on river flows and flood operation of the Nogales International eastern part of Unit 17 (AZ–15) on the timing. The majority of the western Wastewater Treatment Plant are not Lower San Pedro and Gila Rivers yellow-billed cuckoo breeding that impacted. upstream of Dripping Springs Wash to occurs on the mainstem of the Lower Our Response: Several of the areas San Carlos Reservoir on the Gila River Colorado River, including habitat at identified by the IBWC have already because this reach cuts through a Palo Verde Ecological Preserve, Cibola been excluded entirely or in part from narrow canyon, is devoid of vegetation, Valley Conservation Area, Cibola the final designation based on and surveys have not detected western National Wildlife Refuge Unit #1 conservation and management of the yellow-billed cuckoos; the 2020 Conservation Area, and the ‘Ahakhav areas by other entities and thus are not proposed Unit 11 (AZ–9B Horseshoe Tribal Preserve, has been created addressed further here. These areas Dam) extension from the south end of through tree plantings and can be include Unit 1 and 2 along the lower Horseshoe Reservoir to below Horseshoe maintained only through active Colorado River, portions of Unit 37 on Dam because the additional area irrigation as the habitat is disconnected the Rio Grande, Unit 39 at the Caballo downstream to Sheep Creek is canyon- from the river channel on the upland Reservoir, and Unit 41 at Seldon bound with narrow stringers of trees side of the levees. Canyon and Radium Springs (see and does not currently support suitable Our Response: We have reviewed the Exclusions, Private or Other Non- breeding or foraging habitat and because information and have revised the Federal Conservation Plans or the lower segment occurs within the information regarding Unit 1 and Unit 2 Agreements and Partnerships, in Bartlett Reservoir operating space that in this final rule to clarify that most of General Private or Other Non-Federal precludes establishment and persistence the western yellow-billed cuckoos Conservation Plans or Agreements and of suitable nesting and foraging habitat. breeding along the Lower Colorado Partnerships, in General) for a full Our Response: Habitat for many River are breeding in revegetation sites discussion of our exclusion analyses). species, including the western yellow- created by the LCR MSCP. Because We note that IBWC would still need to billed cuckoo, along rivers, dams, and these units have been excluded (see consult for actions which may affect the reservoirs fluctuates over time as habitat Exclusions) from the final designation, species under section 7 of the Act to transitions due to natural or human- we removed the Unit 1 and 2 ensure they do not jeopardize the induced succession. At any given time descriptions and provide them in our species. The only area remaining within across the range, habitat may be supporting documentation (Service the designation is a portion of Unit 37 regenerating, growing into suitability, 2020b, entire). (NM–6B) at Elephant Butte Reservoir. growing out of suitability, desiccated Comment 11: The U.S. Customs and With respect to the remaining area from drought, or killed from scouring Border Protection under the Department within Unit 37 (NM–6B), we have no floods or fire. These processes are of Homeland Security (DHS/CBP) information indicating that designation expected to occur over time in critical requested that the Roosevelt Reservation of these areas as critical habitat would habitat. We agree that proposed critical portion of critical habitat in Units 1, 16, prevent IBWC from implementing the habitat should not have been identified 20, 21, 44, 45, 52, and 61 along the U.S./ treaty or meeting their water delivery in the steeper and narrower portions of Mexico border be considered for commitments, or would otherwise Unit 17 (AZ–15) on the Gila River and exclusion under section 4(b)(2) of the disrupt water management actions. For have removed these areas from the final Act for national security reasons and for example, our economic analysis did not designation. Although some breeding being exempt from environmental identify water delivery or other water and foraging habitat exists in this upper regulations (DHS 2020, entire). The management actions as incurring reach, it is of lesser quality than habitat Roosevelt Reservation is a 60-ft (18-m) significant costs as a result of farther downstream. We also agree that wide strip of land owned by the Federal designating these areas, nor did it the southern boundary of the additional Government along the United States anticipate that water operations would

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be significantly affected. Moreover, the IBWC recommended an additional Collaborative Program (Program) and IBWC did not specify whether it was exclusion so that the exclusion would that this Program should be treated requesting exclusion based upon extend to 150-ft (46-m) from the U.S./ similarly to that of the LCR MSCP and national-security or homeland-security Mexican border for national security others. reasons, nor explain how treaty and access reasons. IBWC deferred to Our Response: In our analysis for implementation would fit within these the National Park Service (NPS) for exclusions for Unit 37, we decided to possible exclusions. IBWC did not critical habitat designated along the exclude the entire NM–6A (7,238 ac provide any other information or a border in Texas (Unit 72, TX–1). (2,929 ha)) and portions of NM–6B reasonably specific justification Our Response: We have excluded the (11,367 ac (4,600 ha)). Exclusion of Unit showing an incremental impact to 60-ft (18-m) Roosevelt Reservation from 37 (NM–6A) was based on Tribal national security or homeland security this final designation based on DHS/ management and partnerships through from designation, as described in our CBP’s request in support of their the Santa Ana Pueblo, the Santa preamble discussion in our Policy on national-security mission (see Comment Domingo Tribe, Cochiti Pueblo, and the Exclusions (81 FR at 7231). Nor did the 11 and Exclusions, Exclusions Based on San Felipe Pueblo (see Exclusions, IBWC provide any reasoned explanation Impacts on National Security and Tribal Lands). Because the area of how treaty implementation would be Homeland Security). We are not aware identified in Unit 37, NM–6B is part of affected by a designation, and thus we of any reason why this 60-ft (18-m) Elephant Butte Reservoir managed by have no basis to exclude this area based exclusion would be insufficient to Reclamation, exclusion of portions of on treaty commitments. Additionally, provide security and access, or why that unit were based on management of our 2020 revised proposed rule extending the exclusion out to 150-ft the area (see Comment 8 above and designating critical habitat for the (46-m) along the border with Mexico Exclusions, Federal Lands). western yellow-billed cuckoo requested would be necessary for ensuring In response to the Commission’s information on how properties for security and access. The IBWC provided request that the two units be excluded which exclusions were requested are general statements of their desire to be in their entirety based on the Middle managed and protected, noting that excluded but no such information or Rio Grande Endangered Species without this information, we could not reasoned rationale that the critical Collaborative Program (Program), we weigh the benefits of a potential habitat designation would impact their have determined that the exclusion exclusion in comparison to inclusion activities as described in our preamble would not be appropriate for several (85 FR 11458, 11502 (February 27, discussion in our Policy on Exclusions reasons. Although we commend the 2020)). Having received no information, (81 FR at 7231), or as requested in our Program for investing time, effort, and we have no basis to exclude the 2020 revised proposed rule (85 FR at funding for conservation on the Middle requested portions of Unit 37. 11502). Moreover, the IBWC did not Rio Grande, the habitat conservation In regard to the IBWC’s request to provide information showing how efforts to date that have been exclude areas in Unit 20 due to designating areas beyond the 60-foot implemented are focused on instream potential impacts to waste water exclusion would harm national-security restoration for the Rio Grande silvery treatment facilities, we have no or homeland-security interests. In the minnow, and conservation efforts for information indicating that such preamble to the Policy on Exclusions, the western yellow-billed cuckoo have impacts are likely. Due to the arid we made clear that a Federal agency’s been mostly associated with surveying, nature of the Southwest and lack of reference to national-security concerns monitoring, and non-habitat related consistent water flows, waste water does not in itself require an exclusion. efforts (MRGESCP 2003, entire). In treatment facilities often assist in Rather, the Federal agency must identifying critical habitat for the maintaining river flows and may benefit ‘‘provide a reasonably specific western yellow-billed cuckoo, we riparian habitat (Luthy et al. 2015, justification of an incremental impact identified those areas that meet the entire). As a result, we do not anticipate on national security that would result definition of critical habitat at section significant changes, if any, for the from the designation of that specific 3(5)(A) of the Act. Although operation of waste water treatment area as critical habitat’’ (81 FR at 7231). management actions for one listed facilities due to the designation of In light of the absence of information species may overlap other species’ critical habitat. Moreover, the IBWC on, or reasonably specific justification habitat or be mutually beneficial to again did not provide any supporting of, how designating these areas could multiple listed species, the physical and information, as described above raise national-security concerns, we do biological features in occupied habitat according to our Policy on Exclusions not consider this request to meet the for yellow-billed cuckoo differ from the (81 FR at 7231), or our request for initial burden described in our policy physical and biological features information in the 2020 revised that the agency requesting a national identified for the Rio Grande silvery proposed rule designating critical security exclusion must provide a minnow. We reviewed the habitat habitat (85 FR at 11502). As a result, we reasonably specific justification (81 FR restoration efforts conducted by the could not initiate a review of at 7231). We reiterated this requirement Middle Rio Grande Endangered Fish information for a potential exclusion to support a request for exclusion based Recovery Program and found that the and did not exclude areas along the on national security reasons in our 2020 vast majority of habitat management Santa Cruz River from Unit 20. revised proposed rule designating actions were focused on instream water Comment 13: The IBWC provided two critical habitat for the western yellow management and fish habitat and not comments regarding the units billed cuckoo (85 FR at 11503). western yellow-billed cuckoo habitat. designated along the U.S./Mexico Instream habitats do not contain the border. First, they concurred with the State Comments physical or biological features essential DHS/CBP’s request for the exclusion of Comment 14: The New Mexico to the conservation of the western the 60-ft (18-m) Roosevelt Reservation Interstate Stream Commission requested yellow-billed cuckoo and therefore are in California, Arizona, and New Mexico, that Unit 37 (NM–6A and NM–6B, not considered critical habitat. As a stating they coordinate with DHS/CBP Middle Rio Grande) be excluded in result, excluding these areas based on on vegetation clearing within the 60-ft entirety based on the efforts of the management for listed fish species does (18-m) Roosevelt Reservation. Second, Middle Rio Grande Endangered Species not meet our criteria for exclusion.

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Comment 15: We received comments habitat; unverified breeding pair of habitat historically described for the from the Arizona Game and Fish information; and arbitrary and species. Ephemeral drainages associated Department (AGFD) on the proposed unsupported estimation of pairs. The with monsoon events are relatively and revised proposed rule. In 2014, the AGFD recommended removing small and within a specific geographic AGFD suggested removing areas from unverified units and excluding certain area in southeastern Arizona. the proposal based on the areas being in State lands under conservation In response to AGFD’s questions poor condition or not supporting management and that the Service regarding our methodology for breeding western yellow-billed cuckoos. should assist the States with funds for determining occupancy, we followed In 2020, the AGFD expressed that the monitoring western yellow-billed the Act’s requirement that we determine revised proposed rule was inconsistent, cuckoo populations and allow partners occupancy based on areas that are did not clearly define essential habitat, to explore additional methods to restore occupied at the time of listing. We incorrectly identified western yellow- habitat to benefit the western yellow- revised our language within the unit billed cuckoos as a habitat generalist, billed cuckoo. The AGFD expressed descriptions to more accurately describe inappropriately included migration and concern that the economic analysis does occupancy status of the areas. We agree stop-over habitat that inflates areas not fully capture economic impacts to that survey information in Arizona needed, did not provide a location State agencies. The commenter noted identified by Corman and Magill (2000) where separation of rangewide breeding that many State agencies receive Federal cannot provide definitive occupancy or habitat and southwest breeding occurs, funds to conduct projects, including breeding information due to the survey and places regulatory burdens on the wildlife conservation projects. Because methodology used in the study. We also agree that statewide protocol surveys State. AGFD also stated that the Service of that potential Federal nexus, the would provide additional information defines all habitats where the species commenter suggested that State agencies on western yellow-billed cuckoo breeds, feeds, migrates, and stops over could incur incremental impacts. Lastly, distribution and breeding. We used as critical habitat, thus inappropriately the AGFD stated that the Service should numerous sources to make our imposing Federal regulatory restrictions finalize its determination on the petition determination of occupancy and on all landowners which will require to delist the species prior to finalizing critical habitat. breeding status for the areas identified both Federal and State resources to Our Response: Part of our reasoning as critical habitat; we determined that manage. AGFD commented that time for revising our 2014 proposed critical these sources viewed in combination would be more appropriately spent on habitat was in response to comments constitute the best scientific and other conservation programs to benefit from the AGFD on the description of the commercial information available. listed species. AGFD claimed that the physical and biological features needed Under the Act, we are required to revised designation violates 16 U.S.C. by the western yellow-billed cuckoo and designate critical habitat as long as we 1532 (5)(C), which states that critical to remove areas of degraded habitat or find that the designation is prudent and habitat ‘‘shall not include the entire not used by the species. As a result of determinable as we did for the western geographical area which can be AGFD’s and other comments and yellow-billed cuckoo. Given that the occupied by the threatened or information received, we removed or western yellow-billed cuckoo in endangered species’’ and that the reduced a number of areas from the Arizona occupies a variety of riparian Service has arbitrarily chosen to revised proposed designation. We habitats and its range overlaps with propose an inappropriate designation of revised the description of the habitat several other listed species, designating critical habitat, and ignore the true used by the species, including a critical habitat would potentially intent of the purpose of critical habitat description of the geographic area where provide additional funding through in the revised proposed rule. The AGFD southwest breeding habitat PBFs are section 6 of the Act and support the questioned the validity of designating found. We are not required to delineate State’s other conservation programs. critical habitat for the western yellow- or map a specific boundary line between Tamarisk can provide habitat for the billed cuckoo, if there is not a specific the identified PBFs as requested by the western yellow-billed cuckoo, habitat type that can be determined as AGFD. especially in areas where altered river critical. The proposed rule described a The Service did not include all flows have caused the native vegetation variety of habitat types (i.e., mesquite habitats where the species breeds, feeds, to become degraded. We compiled the bosques, tamarisk stands, xeroriparian migrates, and stops over as critical currently known information for areas, cottonwood-willow galleries, habitat. Our designation of critical western yellow-billed cuckoo’s use of desert scrub and grassland drainages, habitat focuses on selected areas used tamarisk and included information in etc.) as important breeding habitat. If for breeding by the western yellow- the rule. Western yellow-billed cuckoos these habitats are all important breeding billed cuckoo, and as a result breed in tamarisk, especially if mixed habitats, as described, AGFD stated that purposefully does not include all with other native habitat. the species should be considered a breeding areas used by the species. Regarding economic costs to State habitat generalist and no critical habitat We do not consider the western agencies, exhibit 3 of the economic should be designated (e.g., similar to the yellow-billed cuckoo to be a habitat analysis presents the unit incremental bald eagle). If this is not the situation, generalist. As explained in our revised administrative costs of section 7 AGFD stated that the revised proposed proposed rule, western yellow-billed consultation used in the economic rule needs to be rescinded and redrafted cuckoos in ephemeral drainages in the analysis. The total unit cost presented in to remove habitat that is used southwestern United States are found in that exhibit includes costs to the intermittently or occasionally for drainages with sparse, patchy, or dense Service, other Federal agencies, and breeding from the designation of critical tree cover, high humidity, and increased third parties. State agencies receiving habitat. AGFD also stated that there are insect availability. Our description of Federal funds to conduct projects would several factual inconsistencies in the habitat and inclusion of additional PBFs be considered third parties in proposed rule that require the proposed for the species is due to greater consultation and thus are represented in rule be rescinded. These inconsistencies specificity as to the types of habitat used the cost estimates produced by the include: An over-inflation of the by the western yellow-billed cuckoo and economic analysis. The analysis importance of tamarisk as breeding not an abandonment or reclassification estimates that the incremental costs

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incurred by third parties during the conservation goals for this geographic considerations or protection. The consultation process would range from area. facilities and features described by the $510 to $880 per consultation. In Comment 17: The California CVFPB do not contain the physical or addition, the analysis forecasts the Department of Water Resources (DWR) biological features essential to the likely number of section 7 consultations stated that the designation in Unit 63 conservation of the western yellow- based on consultations that have (CA–1) along the Sacramento River billed cuckoo and thus are not critical occurred since the listing of the western would cause conflicts with flood habitat. In our description of the yellow-billed cuckoo in 2014, which management requirements under the physical or biological features, we have included third parties, such as Central Valley Flood Protection Act of specifically state that critical habitat State agencies. Thus, State agency 2008 (CVFPA). The DWR stated that does not include humanmade structures consultation activity is captured in both they have developed the Central Valley (such as buildings, aqueducts, runways, the projection of the number of Flood Protection Plan (CVFPP) to roads, bridges, and other paved or consultations and the unit cost of these comply with the CVFPA to improve hardened areas as a result of consultations. public safety, environmental development) and the land on which We completed our status review and stewardship, and long-term economic they are located existing within the legal published our not warranted 12-month stability in its management of this boundaries of the critical habitat units finding in the Federal Register on critical water resource infrastructure. designated for the species on the September 16, 2020 (85 FR 57816). We The DWR requested exclusion of the effective date of this rule. Due to the are under a court-ordered deadline to area based on public safety, economic scale on which the critical habitat have a final designation submitted to concerns, and existing management. boundaries are developed, some areas the Federal Register by February 5, Our Response: We fully support the within the units’ legal boundaries may 2021. DWR’s mission of water resource not contain the physical or biological AGFD recommended exclusion of management and stream flows and features and therefore are not some AGFD properties under HCPs or emergency actions necessary to protect considered critical habitat. conservation management. In our the public. As described above, both our Comment 19: Colorado Department of evaluation of areas to be excluded from Policy on Exclusions and our revised Natural Resources, Colorado Riverfront the final designation, we identified the proposed rule indicated that entities Commission, Town of Palisade, Delta Upper Verde Wildlife Area, the Alamo requesting exclusion must provide a County Commissioners, Montrose Board Lake Wildlife Area, and State lands reasoned rationale in support of the of County Commissioners, City of covered under the LCR MSCP (see exclusion in order for the Service to Montrose, Gunnison County, Grand Exclusions). conduct a full exclusion analysis. Here, Valley Water Users Association/Orchard Comment 16: The California DWR provided general statements of Mesa Irrigation District/Ute Water Department of Fish and Wildlife their desire to be excluded but did not Conservancy District, Associated (CDFW) provided additional provide information or a reasoned Governments of Northwest Colorado, observation information for the rationale on the impact of the and Club 20 asserted that designating Sacramento Valley (Butte Creek) and for designation to its activities for us to critical habitat in Colorado is not areas adjacent to the Owens River in initiate an analysis or support an appropriate due to being on the fringe California (Hogback Creek and Baker exclusion. As a result, we have of the DPS’ range. They stated that areas Creek) and requested additional areas be determined that the designation of where western yellow-billed cuckoo are considered as critical habitat. critical habitat would not disrupt their routinely detected are limited and most Our Response: In determining those activities for flood management or water detections are sporadic, representing areas we consider essential to the delivery because the habitat along the single or very small numbers of conservation of the species as critical Sacramento River is in areas of natural individuals with limited documentation habitat, we developed a conservation stream conditions without flood control of recent breeding in western Colorado; strategy for the western yellow-billed or water delivery structures managed by therefore, these units will not make a cuckoo that focuses on core areas where the DWR. significant contribution towards the western yellow-billed cuckoo breeds Comment 18: The California Central conservation of the species. consistently in relatively high numbers Valley Flood Protection Board (CVFPB), Our Response: Although limited or is breeding in areas which are along with numerous other local water breeding is known to occur in Colorado, unique. Although the western yellow- agencies, expressed concern that flood western yellow-billed cuckoo billed cuckoo may be found in control infrastructure and facilities were consistently use the areas identified in additional areas throughout its range, within the critical habitat boundary and Units 68 and 69 (CO–1 and CO–2). not all areas meet our definition of that the designation would limit the These areas fall into category 3 of our essential as outlined in our conservation agencies’ ability to operate and maintain conservation strategy as they are large strategy. Of the three sites requested by as well as improve and alter these flood river systems outside of the Southwest the CDFW to include, only the Butte control facilities. The CVFPB identified that occur in different ecological Creek site has shown to include flood protection features such as levees, settings that are consistently being used sufficient numbers of presumably weirs, bypasses, water control gates, as breeding areas, thus contributing to breeding western yellow-billed cuckoos, bridges, pipelines, conduits, irrigation the ecological representation and with the Hogback and Baker Creek sites pumps, buildings, structures, and redundancy of the species. Maintaining showing few individuals with only underground and overhead utilities as breeding areas throughout the range of intermittent use. We did not consider being those types of flood control the species allows year-to-year the Butte Creek site to meet our features of particular concern. movements to take advantage of any designation criteria because the area is Our Response: Critical habitat is spatial and temporal changes in habitat not part of the core breeding area. defined by the existence of specific resources and food abundance. These Another nearby site that has been more physical or biological features for a areas are occupied and contain the PBFs consistently occupied (Unit 63, CA–1, species that are essential to the essential to the conservation of the Sacramento River) and has already been conservation of the species and which species and which may require special identified as critical habitat meets our may require special management management.

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Comment 20: The Colorado cuckoo, we identified those areas critical habitat Unit 37 (NM–6B) Department of Natural Resources, Mesa occupied by the species at the time of because the area has already been County Commissioners, Grand Valley listing, identified the physical and analyzed for effects to yellow-billed Water Users Association/Orchard Mesa biological features essential to cuckoo in a 2016 biological opinion for Irrigation District/Ute Water conservation of the species, and then Reclamation operations at Elephant Conservancy District, and Club 20 determined which of these features Butte Reservoir, New Mexico. strongly concur with the proposed within identified areas may require Additionally, an existing management exclusion of the Walter Walker State special management considerations or plan (2012) is working effectively. These Wildlife Area (SWA), Colorado River protections. Although management commenters also recommended Wildlife Management Area, and James actions for one listed species may exclusion of critical habitat Unit 39 M. Robb State Park from critical habitat. overlap habitat or be mutually beneficial (NM–8A and NM–8B) and that They additionally request exclusion of to multiple listed species, we identified Reclamation extends their 2012 the Leatha Jean Stassen SWA (near the the specific physical and biological management plan to cover this area. Walter Walker SWA) and Tilman features and geographic locations for Our Response: The proposed critical Bishop SWA on eastern edge of Unit 68. yellow-billed cuckoo for this habitat within Unit 37, NM–6B Our Response: Based on our designation. The physical and biological (Elephant Butte Reservoir) will be consideration of proposed exclusions features and occupied habitat for excluded from critical habitat due to and land management information yellow-billed cuckoo differ from the Reclamation’s management plan to received from Colorado Parks and physical and biological features benefit western yellow-billed cuckoo. Wildlife and Colorado Department of identified for the four listed fish. We Tribal lands within Unit 37 (NM–6A) Natural Resources, we found that the reviewed the habitat restoration efforts will also be excluded due to Tribal James M. Robb Colorado River Sate Park conducted by the Upper Colorado River management for western yellow-billed (CRSP), and the Leatha Jean Stassen, Endangered Fish Recovery Program and cuckoo and existing partnerships with Walter Walker, and Tilman Bishop found that the vast majority of habitat the Service. We are also excluding Unit SWAs are all managed in ways that management actions were focused on 39 from critical habitat due to existing promote cottonwood and willow growth instream water management and fish management. See Exclusions (Federal while minimizing nonnative plants and habitat and not western yellow-billed Lands and Tribal lands). noxious weeds, beneficial to western cuckoo habitat. As a result, excluding Comment 24: The State of Idaho’s yellow-billed cuckoo. Additionally, the these areas based on management for Office of Species Conservation (OSC) exclusion of these areas is likely to be listed fish species does not meet our (and other private water users) beneficial in maintaining a working criteria for exclusion. commented in 2014 and again in 2020. partnership with CPW. As a result of Comment 22: Colorado Department of The commenters provided our exclusion/inclusion benefits Natural Resources requested further modifications and corrections to the analysis, the Secretary has determined it consideration of Colorado conservation acreages identified in the proposed rule. appropriate to exclude these areas from efforts that focus on private lands, They stated that protections afforded the the designation. See Exclusions, Private stating that critical habitat designation western yellow-billed cuckoo as a or Other Non-Federal Conservation may reduce landowner’s willingness to threatened species and other current on- Plans or Agreements and Partnerships, work voluntarily to benefit a species. the-ground measures render the critical in General. The Department provided a list of habitat designation unnecessary; areas Comment 21: Colorado Department of conservation projects that have been in Idaho are not essential to the Natural Resources (along with other implemented in partnership by conservation of the species; the commenters) stated that rivers in numerous Federal and private entities Service’s current information on the Colorado and Utah are already managed that have helped to conserve western status and occupancy of western yellow- to benefit western yellow-billed cuckoo yellow-billed cuckoo and its habitat. billed cuckoo in Idaho is severely due to the existing recovery program Our Response: The list of wetland and lacking; and a recovery plan should be and designated critical habitat for listed riparian habitat projects from Partners developed before critical habitat is fish (Colorado pikeminnow for Fish and Wildlife, Natural Resources determined. They further stated that (Ptychocheilus Lucius), razorback Conservation Service (NRCS) and other they have concerns that the designation sucker (Xyrauchen texanus), bonytail local environmental groups and private would change water management, (Gila elegans), and humpback chub landowners shows eight projects since agricultural, and irrigation activities (Gila cypha)), such that critical habitat the listing of western yellow-billed along the Snake River or its tributaries does not need to be designated. Several cuckoo, two of which are in Mesa and that the American Falls Dam and commenters stated that the Upper County, Colorado. Because the programs Reservoir’s operations and associated Colorado River Endangered Fish have been working in partnership and transmission lines, humanmade Recovery Program and San Juan River implementing and coordinating such structures and rights-of-way would be Basin Recovery Implementation conservation efforts that are partly affected by the designation. The Program were not cited in the proposed coordinated by the Service and NRCS, commenters stated that special rule as providing protections for we do not expect private landowner management is not necessary as western yellow-billed cuckoo and that participation in future conservation measures are already in place and that areas identified as critical habitat for the efforts will be curtailed as a result of it is essential to preserve the 2004 Snake western yellow-billed cuckoo should be designating critical habitat. As shown River Agreement. excluded based on implementation of by the implementation of the various The OSC stated that the Service the recovery program. projects, the program has been should leverage existing collaborative Our Response: Areas along the San successful in getting private and non- efforts and implement landscape-scale Juan River were not included in the Federal partners to conserve sensitive partnerships and incentivize 2020 revised proposed designation and species and their habitat. ecologically-based cooperative water are not included in this final Comment 23: The Colorado management practices to conserve designation. In identifying critical Department of Natural Resources and riparian and western yellow-billed habitat for the western yellow-billed Club 20 recommend exclusions of cuckoo habitats while providing

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balanced management of agricultural analysis other than administrative Mexico Interstate Steam Commission, irrigation, managed aquifer recharge, analysis of any adverse modification and the Rio Grande Compact municipal uses, and flood control. The review for the agencies’ actions. Commission had comments on the OSC commented that if areas are Collaborative multi-stakeholder revised proposed Unit 37 (NM–6A and designated, the Service should expand cooperative partnerships can be NM–6B). They stated that in many cases the boundaries of the critical habitat to important to long-term conservation of the designation would not produce any correspond to Federal lands and only sensitive species and their habitats additional benefits for the western include non-Federal lands with while still allowing for the interests of yellow-billed cuckoo than already landowner discretion. stakeholders and needs of the public to resulting from issuance and Our Response: We have revised the continue. However, we are required to implementation of the Service’s 2016 final rule to reflect information designate critical habitat for threatened biological opinion (Service 2016a, provided by the OSC regarding acreages and endangered species where we find entire) for water operations and river and land ownership. We do not agree the designation to be both prudent and maintenance issued to Reclamation. with the commenters’ assessment that determinable as is the case with the These entities have also been pursuing areas in Idaho are not essential to the western yellow-billed cuckoo. In our other conservation actions in the conservation of the species and should development of critical habitat, we proposed area through the Middle Rio not be designated as critical habitat. We consider designating those areas with Grande Endangered Species developed a conservation strategy to the PBFs essential to the conservation of Collaborative Program. They would like assist in determining areas essential to the species and not based on land the Service to consider the exclusion of the conservation of the species and ownership, unless limiting the the Elephant Butte Reservoir operating determined that the areas in Idaho are designation to just Federal lands pool from designation as critical habitat. occupied, contain the PBFs essential to provides for the conservation of the The commenters also requested that the the conservation of the species, meet the species. In our proposed rule, we draft NEPA and draft economic analysis goals of the conservation strategy, and solicited the public for information developed for the revised proposed follow our criteria for designation. regarding potential exclusion of areas designation be made available for These areas in Idaho fall into category based on management plans or other review. 3 of our conservation strategy as they conservation efforts including Our Response: Partly as a result of the are large river systems outside of the partnerships and we engaged with our 2014 comments, we revised the Southwest that occur in different partners regarding excluding private previously identified Unit 52 (NM–8) ecological settings that are consistently lands within the units identified in (2014) (Unit 37 (2020)) to remove a being used as breeding areas, thus Idaho. We received a request to only segment of the river near Albuquerque, contributing to the ecological include private lands with landowner NM, as not constituting critical habitat representation and redundancy of the consent from OSC; however, we where there is a significant break in the species. Maintaining breeding areas received no information from private habitat for the western yellow-billed throughout the range of the species landowners to exclude their specific cuckoo. Though this area has had allows year-to-year movements to take lands in Idaho. incidental detections of western yellow- advantage of any spatial and temporal We do not agree that specific areas billed cuckoos, breeding activity has not changes in habitat resources and food and essential features within critical been confirmed by formal surveys since abundance. We based our occupancy habitat do not require special the species was listed. This area was and use of the areas in Idaho on State management considerations or removed from proposed critical habitat, natural heritage data and published protection because adequate protections which resulted in splitting the critical articles and survey reports including are already in place. In Center for habitat into two units (NM–6A and NM– Reynolds and Hinckley (2005, entire) Biological Diversity v. Norton, 240 F. 6B). We conducted an exclusion and Idaho Department of Fish and Game Supp. 2d 1090 (D. Ariz. 2003), the court weighing analysis and found that the (2013–2014, entire), as the best available held that the Act does not direct us to benefits of exclusion outweigh the data that have documented consistent designate critical habitat only in those benefits of inclusion and excluded the use of the areas designated as critical areas where ‘‘additional’’ special majority of Elephant Butte Reservoir as habitat in Idaho. In the proposed and management considerations or well as areas within Tribal lands from this final rule we have defined our protection is needed. If any area this final designation (see Comment 8 position and consideration of provides the physical or biological and Exclusions, Tribal Lands and occupancy (see Selection Criteria and features essential to the conservation of Federal Lands). The draft economic Methodology Used to Determine Critical the species, even if that area is already analysis (IEc 2019 and IEc 2020 entire) Habitat). well managed or protected, that area and draft NEPA analysis (Service 2019d) The designation of critical habitat still qualifies as critical habitat under were posted online at http:// requires Federal agencies to consult the statutory definition if special www.regulations.gov at Docket No. with the Service on activities they management is needed. The final rule FWS–R8–ES–2013–0011 under conduct, permit, or fund. Because the explicitly states that manmade features supporting documents or on the areas being designated are occupied, the such as irrigation structures and Sacramento Fish and Wildlife Office’s Federal agencies managing water storage facilities are excluded from the website at http://www.fws.gov/ and delivery infrastructures already designated critical habitat. However, sacramento. must ensure that their operations do not rights-of-way are agreements that Comment 26: In 2014, the New jeopardize western yellow-billed cuckoo impose a status on the use of lands Mexico Interstate Stream Commission due to the threatened status of the rather than describing the condition of and New Mexico Department of Game species. Our economic analysis did not the land as human-made structures. As and Fish (NMDGF) questioned the identify significant additional costs such, rights-of-way are not excluded source of western yellow-billed cuckoo associated with the designation of from designated critical habitat. occupancy data for the Gila, San critical habitat as the measures that may Comment 25: The New Mexico Francisco, Mimbres and San Juan Units. be required would likely be the same as Department of Agriculture, Middle Rio The New Mexico Interstate Stream those necessary under the jeopardy Grande Conservancy District, New Commission also requested additional

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information as to how State estimates western yellow-billed cuckoo habitat Exclusions, Private or Other Non- for western New Mexico were depending on the measures Federal Conservation Plans or established. On the Rio Grande, the implemented for the grazing activity. Agreements and Partnerships, in Commission also noted discrepancies in The amount of management depends on General). We value our partnership with 1986 study results by Howe (1986), the sensitivity of the habitat at any given New Mexico State agencies and when compared to the limited survey location and would most likely need to appreciate the conservation efforts effort completed by Reclamation from be managed on a site-by-site basis. For associated with the NMDGF State 2006–2010, and stated that the western example, a grazing regime used on Wildlife Action Plan and coordination yellow-billed cuckoo population is Audubon California’s Kern River with the Service on endangered and larger than estimated. The NMDGF also Preserve in the South Fork Kern River threatened wildlife conservation recommended removing the areas along Valley limits grazing to outside the measures and commitments through the the San Juan River (2014 Unit 46, NM– growing season (October to March). This consultation process. State Wildlife 1) and Mimbres River (2014 Unit 49, time restriction allows for regeneration Action Plans, including the NMDGF NM–6) (now identified as Unit 34, NM– of willows and cottonwoods and State Wildlife Action Plan (NMDGF 3A) from the designation due to low precludes the tree browsing and high- SWAP 2016, entire), are planning frequency of western yellow-billed lining that often accompanies heavy documents that provide a high level cuckoo detections. summer (growing season) grazing. Given overview of the status of species and Our Response: Occupancy data for that ‘‘grazing’’ versus ‘‘overgrazing’’ may habitats within each State and are not a New Mexico was based on a variety of vary on a site-by-site basis, there is no plan which specifically implements sources. These include formal surveys clear definition, but generally, if an area conservation measures, provides conducted by permitted biologists, with grazing activity degrades riparian management direction, or ensures incidental detection data collected and habitat attributes and prevents long- specific project or species funding. In verified by online data from the Cornell term health and persistence of these some cases, these conservation efforts Lab of Ornithology (2020), and systems, it is considered overgrazing. identified in State Wildlife Action Plans information submitted to the Service Comment 28: In 2014, the NMDGF may aid in general riparian health, from the State Heritage Program. State stated that the Service should further which in some cases, indirectly benefit estimates for western New Mexico are describe vague habitat descriptions in western yellow-billed cuckoos. based on the observations from the the Physical and Biological Features However, the NMDGF and the NMDA sources above. In this final critical section and within the unit descriptions did not provide a reasoned explanation habitat designation, we have updated themselves. that the benefits of exclusion outweigh our estimated numbers for the State, Our Response: In our 2020 revised the benefits of inclusion in support of a which is a larger population than proposed rule (85 FR 11458, February request for exclusion. As a result, we originally estimated in 2014, after 27, 2020) and this final rule, we further did not conduct an exclusion analysis several years of increased survey effort. refined the PBFs for western yellow- specific to New Mexico State lands. In After reevaluation and prioritizing units billed cuckoo and information regarding addition, State agencies receiving of greatest conservation value, we agree habitat within the unit descriptions. Federal funds to conduct projects would that the low frequency of western Comment 29: The NMDGF requested be considered third parties in yellow-billed cuckoo observations on that all State lands be excluded based consultation and thus are represented in the San Juan River lead us not to on their State Wildlife Action Plan the cost estimates produced by the consider the area as critical habitat due (Action Plan or SWAP) and the NMDA economic analysis. The economic to our conservation strategy and criteria supports the exclusion of all lands in analysis found that the incremental for determining areas essential to the New Mexico from the final critical economic costs associated with critical conservation of the species. The habitat designation. The NMDGF habitat to third parties such as States Mimbres River area was also identified areas within the Bernardo would be minimal. reevaluated and had recent formal or WMA that do not have the PBFs and incidental observations of western should not be considered as critical Tribal Comments yellow-billed cuckoos within the area habitat. The NMDA stated that State In accordance with our requirements identified in 2014 as well as additional lands are often involved in collaborative to coordinate with Tribes on a locations outside the unit. As a result, restoration projects involving funding government-to-government basis, we the areas we are designating along the from Federal agencies. Designating State solicited information from and met with Mimbres River now include the two lands as critical habitat could members of the Fort Mojave Indian areas identified in the revised proposed complicate interagency cooperation and Tribe; Colorado River Indian rule (Unit 34, NM–3A and NM–3B). hinder the implementation of Reservation; Fort Yuma Indian Comment 27: The New Mexico restoration projects that would benefit Reservation; Cocopah Tribe; Yavapai- Department of Agriculture (NMDA) the western yellow-billed cuckoo. Apache Nation; Hualapai Indian Tribe; requested that the Service clearly define Our Response: We re-evaluated the San Carlos Reservation; Navajo Nation; what criteria it uses to differentiate critical habitat boundary in the Santa Clara, Ohkay Owingeh and San between ‘‘grazing’’ and ‘‘overgrazing.’’ Bernardo WMA within Unit 37 (NM– Ildefonso Pueblos; Cochiti, Santo NMDA also requests the scientific and 6B) and agree with the State’s Domingo, San Felipe, Sandia, Santa Ana peer-reviewed sources of data that has assessment that a portion of the unit at and Isleta Pueblos; Shoshone-Bannock, led the Service to conclude that the southernmost extent of Bernardo Fort Hall Reservation; the Cachil DeHe ‘‘overgrazing’’ may be a threat to WMA does not contain the PBFs for the Band of Wintun Indians; and the Ute potential critical habitat. western yellow-billed cuckoo; therefore, Tribe of the Uinta and Ouray Our Response: As stated in the 2014 some areas within Bernardo WMA were Reservations regarding the designation final listing rule determining threatened removed from the designation. of critical habitat for the western status for the western yellow-billed In this final rule, we excluded State yellow-billed cuckoo. The comments we cuckoo (79 FR 59992, October 3, 2014), lands that have management measures received from the Tribes included well-controlled grazing activity can be in place to protect habitat for the revisions to Tribal ownership and compatible within riparian zones and in western yellow-billed cuckoo (see requests to be excluded from the

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designation based on their management SRP area are no longer critical habitat, economic analysis estimated that the and conservation of western yellow- we would not expect future water annual rate of expected consultations billed cuckoo habitat, that the delivery or exchanges to be impacted by for the entire Unit 70 would be less than designation would infringe on Tribal the designation. See Exclusions, Private one per year (0.8) (IEc 2020, Exhibit A– sovereignty and directly interfere with or Other Non-Federal Conservation 2). As result of excluding the Tribal Tribal self-government, and that it Plans Related to Permits Under Section lands, we would expect even fewer would have a disproportionate 10 of the Act and Exclusions (Tribal consultations for the area. economic impact on Tribes. Lands). We have reviewed their requests and Comment 31: In 2014, the Sandia Public Comments excluded all the Tribal lands from the Pueblo requested the exclusion of Comment 33: Several commenters final designation under section 4(b)(2) critical habitat within their lands based stated the Service should not rely on the of the Act. See Exclusions (Tribal on the mandate established in PBF of having an adequate prey base to Lands) for those areas we excluded Secretarial Order 3206, their history of designate critical habitat because the under section 4(b)(2) of the Act from the restoration efforts, the Pueblo of Service does not adequately address final designation. Individual Tribal Sandia’s Bosque Management Plan, and how management practices might affect comments requesting exclusion from the section 4(b)(2) of the Act. the prey base. final designation under Section 4(b)(2) Our Response: In 2020, we revised the Our Response: In determining critical of the Act are addressed below in the critical habitat boundary of Unit 37 habitat, we are required to identify the Exclusions (Tribal Lands) section and (NM–6B) near Albuquerque, New physical or biological features essential are not addressed further here. Mexico, which included the Sandia to conservation of the species. Prey Comment 30: The Gila River Indian Pueblo. Because the area contained a availability is an important component Community (GRIC) and others significant break in the type of occupied western yellow-billed cuckoos use to expressed concern about whether habitat due to the area being near select areas for breeding. However, we critical habitat would impact water development and not meeting our did not identify and select areas as availability and management or prevent criteria for designation, the area that critical habitat based on this feature future water exchanges for Tribal contained Sandia Pueblo lands was not alone; in selecting areas as critical communities. The GRIC was specifically included in the 2020 revised proposed habitat we relied on our conservation concerned with the Salt River Reservoir designation. Although this area has had strategy which focused on breeding systems identified in the Salt River a limited number of detections of areas with appropriate habitat structure. Project (SRP) and if existing agreements western yellow-billed cuckoos, breeding This PBF is designed to ensure that allow for ‘‘storage credits’’ to be activity has not been confirmed by project proponents consider effects to managed according to water delivery formal surveys since the species has the prey base in any considerations of needs and existing water operations. been listed. This assessment has been how their actions might affect the The GRIC also provided comments further supported by the Sandia function of the critical habitat in regarding the economic impact of Pueblo’s historical and multi-year supporting western yellow-billed potential curtailment of water delivery survey effort. cuckoos. As such, we conclude that it is should critical habitat be designated Comment 32: One commenter noted informative and appropriate to include outside Tribal lands. that the Ute Indian Tribe relies on as a PBF in the final designation. Our Response: Because all Tribal revenues from oil and gas development Comment 34: Multiple commenters lands have been excluded from the final as the primary source of funding for its expressed concern for designating critical habitat designation, any governmental services. This commenter critical habitat in areas where the conservation activities on Tribal Lands stated that, if the listing and critical species has not been recently that would be required are based on the habitat designation prevent the Tribe documented and which we could not be listing of the western yellow-billed from developing its oil and gas certain were occupied. cuckoo. For critical habitat off Tribal resources, the Tribe could lose $2.3 Our Response: We based our lands, we do not anticipate water million per well annually. designation on the best scientific and operations or water delivery to Tribes to Our Response: All Ute Indian Tribe commercial information available using be significantly impacted by the lands were excluded from the final specific criteria for determining areas to designation of critical habitat. Section 3 designation. The commenter also refers designate as critical habitat. We have of the economic analysis outlines the to costs of listing for the yellow-billed determined that all units being substantial baseline protections cuckoo. Section 4 of the Act prohibits designated are occupied by the western currently afforded the western yellow- the consideration of economic impacts yellow-billed cuckoo. In determining billed cuckoo throughout the proposed in decisions about whether to list a occupancy of breeding areas and critical designation and has determined that the species as endangered or threatened. habitat for the western yellow-billed impacts of critical habitat would be The listing decision made in 2014, was cuckoo, we obtained occurrence minimal. In addition, of the reservoirs based solely on best scientific and information from surveys, reports, State within the SRP, we are excluding the commercial data available on the status Heritage data, published literature and areas identified near Roosevelt Lake of the species, after taking into account online information (Cornell Lab of through SRP’s Roosevelt Lake HCP efforts by States or foreign nations to Ornithology). For the 2014 proposed (2002) and areas around and protect the species (section 4(b)(1) of the rule, we reviewed information between downstream of Horseshoe Reservoir Act). Thus, the economic analysis does 1998 and 2014 to determine whether the through SRP’s Horseshoe and Bartlett not quantify the likely economic effects area was occupied at the time of listing. Reservoirs HCP (SRP 2008, entire). of our previous decision to list the For the 2020 revised proposed rule, Horse Mesa Dam, Mormon Flat Dam, western yellow-billed cuckoo as a based on new data we received through and Stewart Mountain Dam are not threatened species. 2017, we proposed additional units we within cuckoo critical habitat on the For activities that have a Federal consider to have been occupied at the Salt River. Other areas within the SRP nexus on the Ute Reservation, the time of listing using new data received were not identified as critical habitat. consultation history for impacts to the through the 2017 breeding season. To Because the areas identified within the species has been minimal. The further support designation of these

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units, we used additional occupancy or PBFs are not considered critical habitat, occurring in critical habitat. In general, breeding data up until the 2020 even if they are within the boundary. conservation measures resulting from breeding season. See Criteria Used To Comment 37: One commenter stated the species’ listing status under the Act Identify Critical Habitat for a discussion that the LCR MSCP maps in the revised are expected to sufficiently avoid of the information and criteria we used proposed rule do not include some potential destruction or adverse on determining occupancy. important revegetation sites occupied by modification of critical habitat. Comment 35: Multiple commenters western yellow-billed cuckoos. The In 2016, we issued a biological requested exclusions for various commenter provided the total additional opinion to the USFS for Rosemont publicly managed lands. One of these area of the revegetation sites within the Copper’s proposed activities (Service requests was to exclude Black Draw, LCR MSCP planning area. 2016b, entire). We subsequently part of San Bernardino National Our Response: The proposed rule and received notification from the USFS that Wildlife Refuge in Arizona. Private revised proposed rule were based on the they had suspended all activities under landowners also requested exclusion for most current information we had on the Rosemont Project Mine Plan of their own lands, claiming that they are boundaries of areas for the LCR MSCP Operations due to litigation and court already managing lands that maintain and may not have included more recent ruling to halt the project (Dewberry the species’ habitat but did not provide revegetation sites. As a result of 2019, entire; Helminger 2019). In 2019, information regarding their management reviewing whether we should exclude we suspended our 2016 biological or specific land ownership information. the areas being managed under the LCR opinion and its accompanying Our Response: For exclusion of an MSCP, we took into consideration the incidental take statement (Service area from critical habitat designation additional restored sites as part of our 2019b, entire). On February 10, 2020, based on management, we look to our benefits of exclusion analysis. We have we received an adverse ruling on our determined to exclude the entire area Policy on Exclusions that outlines biological opinion (Case 4:17-cv-00475– being managed under the LCR MSCP. measures we consider when excluding JAS Document 291). The USFS and See Exclusions, Private or Other Non- and areas from critical habitat (81 FR Corps did not request an appeal of this Federal Conservation Plans Related to 7226). Black Draw, a part of the San decision. As a result of these court Permits Under Section 10 of the Act. Bernardino National Wildlife Refuge, rulings, Rosemont’s claim (James 2020, Comment 38: One commenter claims entire) that impacts to critical habitat provides important habitat for the the inclusion of critical habitat for the western yellow-billed cuckoo. In order have already been analyzed under the western yellow-billed cuckoo in Unit 19 jeopardy standard is not correct. In for us to consider and conduct an (AZ–17, Upper Cienega Creek), Unit 24 addition, review of critical habitat is not exclusion analysis, stakeholders should (AZ–22, Lower Cienega Creek), or Unit reviewed under the jeopardy standard provide information or a reasoned 58 (AZ–46, Gardner Canyon) will result but rather under the different adverse rationale to support their request. in an economic burden for their modification standard. Should Without this information, we did not activities. They also reasons the Service Rosemont Copper wish to resume conduct a weighing analysis to has already analyzed the effects of the seeking Federal permits for their determine whether the benefits of Rosemont Project on the western activities, the Federal agencies would exclusion outweigh the benefits of yellow-billed cuckoo habitat in the need to consult with the Service and inclusion. For those Federal, State, project area during a section 7 obtain a new biological opinion for Tribal and public lands where we had consultation completed in 2016, and incidental take and adverse such information, we conducted an that because the habitat is already modification review. exclusion analysis Please see the protected under the jeopardy standard, In reviewing areas to designate critical Exclusions section for areas we are the area should not be included. The habitat, we used the best scientific and excluding from the final designation. commenter also stated that the critical commercial information available to Comment 36: Some commenters habitat within and in the vicinity of the determine those areas that are occupied stated that areas identified as critical Rosemont Project cannot be essential to and contain the physical or biological habitat did not contain the physical or the conservation of the species. Other features essential to the conservation of biological features (PBFs) and therefore commenters expressed concern about the species. Western yellow-billed are not essential and should not be part the development of Rosemont Copper cuckoo use of the area during the of the final designation. Mine and that the critical habitat in the breeding season is well documented and Our Response: In our revised area is important for western yellow- the area meets our criteria and proposed rule, we reevaluated the areas billed cuckoos and other species. conservation strategy for designation. proposed as critical habitat to focus on Our Response: As we discussed in our Comment 39: Permittees and others areas that contain the PBFs and are draft economic information in our associated with the Service-approved consistently occupied during the revised proposed rule (IEc 2019, entire; section 10 Pima County Multi-Species breeding season. We used the best IEc 2020, entire) and our Incremental Conservation Plan (MSCP), requested scientific or commercial information Effects Memo (Service 2019c, entire), we that the critical habitat within the HCPs available to determine habitat for and do not expect significant economic planning area be designated as critical use by the western yellow-billed impacts associated with the designation habitat. cuckoo. During our process of analyzing of critical habitat above those associated The commenters expressed their the PBFs, care was taken to consider the with listing of the species as threatened, confidence in the ability to deliver areas chosen using as consistent an due to the areas being occupied by the conservation benefit to the western approach as possible, despite the species. Our review of the comments yellow-billed cuckoo by way of the differences in habitat and the timing of and claims raised do not change our mitigation, management, and when areas are used by the species. In position that the incremental economic monitoring strategies in the MSCP. some instances, several areas of habitat impacts associated with critical habitat However, the commenters did state that if in near proximity to each other were would be limited to administrative costs large-scale Federal actions outside of grouped together as a single area. associated with completing adverse Pima County’s control could have Within the boundaries of critical modification analyses for Federal significant negative impacts on species habitat, areas that do not contain the actions (activities, permitting, funding) and lands under their management. The

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commenters continued, stating that the billed cuckoos have long occupied the Comment 42: Several commenters designation of critical habitat would area within Unit 16. This area supports stated that the western yellow-billed require Federal agencies to use an the largest population of breeding cuckoo is a habitat generalist or the additional standard of review when western yellow-billed cuckoos along designation of desert scrub, grasslands, conducting section 7 consultations with and adjacent to a free-flowing river in mesquite, mesquite bosques, and the Service for federally permitted Arizona and has a high conservation cottonwood galleries as ‘‘critical’’ is activities (such as mines and value. Areas such as this were wrong. transmission lines) not controlled by specifically identified as part of our Our Response: The western yellow- Pima County. The commenters stated conservation strategy for designating billed cuckoo uses a variety of riparian that keeping the area as critical habitat critical habitat. Western yellow-billed and xeroriparian habitat within its would further serve to benefit the cuckoos have been documented as range, but they are not habitat conservation of species and its habitat breeding along the cottonwood-willow generalists. All the vegetation types are (Huckelberry 2014, entire). The riparian woodland corridor and in the habitats with an overstory and commenters opined that maintaining adjacent mesquite and desert scrub understory component that occur in the western yellow-billed cuckoo woodland that expands laterally into the drainages. Based on comments critical habitat on Pima County or Pima broad floodplain. Threats to the regarding the PBFs in the 2014 proposed County Regional Flood Control District physical or biological features in this rule, we sought to better define the managed lands would not impact their Unit are ongoing and require constant habitat used by the species. Western section 10(a)(1)(B) permit or their management to protect from actions that yellow-billed cuckoo breeding habitat is partners. The commenters therefore affect the species and its habitat. The restricted to riparian woodlands along requested that critical habitat for the Service has engaged in many riparian drainages rangewide and, in the western yellow-billed cuckoo be consultations for proposed actions southwestern United States and maintained on County- and District- within and outside of San Pedro northwestern Mexico, they also breed in owned and leased properties and on the Riparian National Conservation Area more arid and sometimes narrower or Federal lands within Las Cienegas (SPRNCA) in the San Pedro River Basin patchier tree-lined drainages. In National Conservation Area. that affect cuckoos and habitat within southeastern Arizona, they breed in Our Response: In proposing revised SPRNCA. Designation of critical habitat tree-lined habitat in ephemeral critical habitat in 2020 for the western in this Unit ensures that effects of drainages where humidity is higher than yellow-billed cuckoo, we identified proposed Federal actions to western in other parts of the Southwest. approximately 9,191 ac (3,719 ha) of yellow-billed cuckoo habitat are Comment 43: A few commenters land within the Pima County MSCP that considered and fully evaluated for stated that the proposed rule does not occurred in numerous proposed units. potential impacts. The designation of provide a solid justification for why We are honoring the commenters’ critical habitat may also help increase areas proposed for critical habitat are requests not to exclude these areas from agency and private land stewardship essential. One commenter also stated the final designation. through partnerships and curtail there was insufficient justification for Comment 40: We received many unauthorized activities that degrade why areas were removed from the 2014 comments on Unit 16 (AZ–14, Upper habitat such as trespass grazing and off- proposed critical habitat and why areas San Pedro River), which includes a highway vehicle incursions. See previously considered essential were portion of the San Pedro Riparian Exclusions Based on Impacts on eliminated. National Conservation Area (SPRNCA) National Security and Homeland Our Response: Revisions from the managed by the Bureau of Land Security for discussion of Fort 2014 proposal are in part based on Management (BLM), ranging from Huachuca. comments received and development of support for inclusion, exclusion, Comment 41: Multiple commenters our conservation strategy for exemption, or removal. One commenter stated that the geography of the species determining critical habitat. In our provided support of inclusion in part does not warrant labeling the western revised proposed and this final rule, we because it has western yellow-billed yellow-billed cuckoo as a distinct describe our rationale on why we cuckoo conservation goals within this population segment, therefore delisting consider the areas identified as essential unit as part of its Sonoran Desert Multi- is warranted, and it is not necessary to to the conservation of the species. The species Conservation Plan (Huckelberry designate critical habitat. conservation strategy takes into 2014, entire). Private individuals and Our Response: On September 16, consideration numerous conservation environmental organizations also 2020, we published in the Federal biology practices and approaches for supported inclusion. Multiple Register a not warranted 12-month conserving sensitive species and their commenters requested exclusion or finding on the petition to delist the habitat. The areas identified contain the removal of part or all of this Unit for western yellow-billed cuckoo (85 FR PBFs we considered essential to the various reasons, such as the area already 57816). In that finding, we reaffirmed conservation of the species under having Federal protection, that it was our previous determination that the section 3(5)(A)(i) of the Act. In the not essential, and not wanting critical western yellow-billed cuckoo strategy, we focused our designation on habitat on or near their private lands. constitutes a valid distinct population breeding areas that showed consistent Our Response: As noted above, segment. Thus, we are required to occupancy and have records of consideration of possible exclusions designate critical habitat for all numerous breeding pairs over time. from critical habitat are in the Service’s threatened or endangered species as Areas with limited, low, and discretion and generally follow our long as we find the designation to be inconsistent breeding information or Policy on Exclusions (81 FR 7226). With prudent and determinable, as is the case degraded habitat were removed as not respect to Unit 16, we determine that for the western yellow-billed cuckoo. meeting the definition of critical habitat. the requesters have not presented We further note that we are under court For example, some areas on the Verde, information or reasoned rationale that order to finalize critical habitat for the Salt, and Gila Rivers that are no longer supports a conclusion that the benefits western yellow-billed cuckoo critical considered as critical habitat contained of exclusion outweigh the benefits of habitat and do not have the discretion some or all of the PBFs, but the habitat inclusion. Breeding western yellow- not to do so. is degraded, declining, and disjunct.

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There were also no recent records the extent of the species range, and openings, large expanses of woodland, (within the last 5 years) that confirm limited personnel and funding to narrow woodland, or a combination of occupancy throughout the breeding conduct rangewide protocol surveys. In different configurations within the same season, although yellow-billed cuckoos certain instances we used the best drainage at any given time. Riparian migrate through these areas. Some other scientific and commercial information corridors in drainages, especially in the drainages in Arizona and throughout the to inform our decisions and professional Southwest, can be very narrow or a range were removed either because: (1) judgment on determining occupancy for patchwork of vegetated and The PBFs no longer occur, (2) our an area or including or not including it nonvegetated areas. Naturally occurring information regarding PBFs was in as critical habitat. In our proposed rule gaps in habitat following flooding and error, (3) surveys conducted since 2014 and this final rule, we outline our scouring are part of succession in have not confirmed occupancy during rationale for determining occupancy riparian systems. In time, trees will the breeding season, (4) surveys have and identifying areas as critical habitat. regenerate and fill these openings. not been conducted, or (5) the area had See Selection Criteria and Methodology Western yellow-billed cuckoos often detections but occupancy was otherwise Used to Determine Critical Habitat. nest and forage near the edges and uncertain; these areas were removed Comment 46: Several commenters openings that are part of the matrix of from the designation as not meeting the were concerned about water depletion suitable habitat. We included breaks in definition of critical habitat. (both surface water and groundwater) habitat to combine one or more areas if Comment 44: One commenter stated and its continued threat to western we determined that: (1) The gap in that the Service failed to inform private yellow-billed cuckoos into the future. vegetation was within minor variances landowners that their property is Some were interested in creating more of the 0.25-mi (0.40-km) distance; (2) the proposed for designation. water availability and flow through a habitat on the other side of the gap was Our Response: We made every effort balanced approach to water use interests a continuation of similar or better to provide the public notification of our (including municipal, agricultural, suitable habitat and included breeding proposed and revised proposed critical recreational, and environmental occupancy as identified above; or (3) the habitat, including through direct interests) and implementing more gap in vegetation was determined to be notification, publications in habitat restoration in areas proposed for a consequence of natural stream newspapers, and social media outlets. critical habitat. dynamics essential to the continuing Due to the large scope of the proposed Our Response: Water availability and function of the hydrologic processes of designation, it was not possible to depletion can have a significant impact the occupied areas. By providing breaks individually contact each individual to western yellow-billed cuckoo and its in habitat and combining areas, we landowner within the proposed habitat and were part of our reasoning allow for regeneration of vegetation in designation. for listing the DPS as threatened. We these areas, which is often more Comment 45: Several commenters expect water depletion to continue due productive and provides additional food stated that there is no evidence that to a variety of causes including actions resources for the species and allows for critical habitat units were occupied at such as climate change, drought, mining appropriate habitat conditions for use the time of listing. Commenters effects, groundwater pumping, and when dispersing to other breeding disagreed that using data collected over water diversion. We will continue to locations. a 20-year span is proof that the area is consult on this issue as it arises as well Comment 48: Several commenters occupied habitat at the time of listing in as work with Federal, State, Tribal, and claimed a need for western yellow- 2014. Commenters also disputed that private landowners on species recovery billed cuckoo critical habitat to be documentation of a few individuals is actions. protected from livestock grazing. proof that the species is breeding or that Comment 47: Several commenters Our Response: We consider livestock the habitat they occupy is essential. pointed out potential inconsistencies in grazing, if conducted and managed Other commenters held the opposite application of criteria for designation, in appropriately, to be a management tool point of view and found our parameters particular where large habitat blocks are compatible with western yellow-billed for occupancy to be too narrow, and absent or where there are gaps greater cuckoo and its habitat depending on the recommended that the consideration of than 0.25 mi (0.40 km). One commenter location and intensity of the grazing occupancy should be expanded is concerned about the gaps in suitable operation. We evaluate effects of grazing temporally and spatially. habitat and inclusion of small patches on western yellow-billed cuckoos and Our Response: In development of the along the Big Sandy River. Another habitat through section 7 consultation proposed rules and this final rule commenter stated that there is no for any proposed project with a Federal designating critical habitat, we used the evidence that Pinto Creek contains nexus. Livestock grazing in riparian best scientific and commercial substantial blocks of riparian habitat. areas can be a concern, and the information available. We have Our Response: Because of the Southwestern Willow Flycatcher determined based on our analysis of the dynamic aspects of western yellow- Recovery Plan (Service 2002, entire) information available that western billed cuckoo habitat as a result of provides grazing guidance that is also yellow-billed cuckoo surveys and potential flooding, changing river relevant for western yellow-billed occupancy reports conducted in many locations, and land uses, we used the cuckoos. We identified overgrazing in sites over multiple years indicate active floodplain to identify where riparian (including xeroriparian) habitat continued use. Therefore, it is riparian habitat occurs and immediately as an ongoing threat to western yellow- reasonable to conclude that data adjacent suitable woodland habitat to billed cuckoo habitat that may require collected from 1998 to the present can determine the critical habitat special management. Well-managed, be used to determine occupancy. We boundaries. Blocks of habitat often low-intensity, appropriately timed acknowledge the difficulty in contain openings that change over time grazing in areas with multiple options identifying every individual occupying in dynamic riverine systems. Suitable for water access to livestock can be or breeding occurrence for an area habitat in perennial and intermittent compatible with western yellow-billed because of the remote nature of the sites, riparian systems consists of a variety of cuckoos in some parts of the range. reclusive nature of the species, the configurations that include small However, where water is limited and variable nature of resource availability, patches of woodland interspersed with recruitment events are infrequent,

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grazing at any level can impact riparian is used by the western yellow-billed foraging, it constitutes habitat for the habitat. cuckoo; however, not all riparian habitat species, and any Federal actions taken Comment 49: Several commenters has been designated. An increase in a within these areas would most likely be indicated that the 2020 revised species’ detection information often subject to consultation under section 7 proposed critical habitat rule conflicts occurs as a result of a species being due to occupation by the listed species with the description of western yellow- listed as a threatened or endangered regardless of the area being designated billed cuckoo habitat in the 2014 listing species, due to consultation as critical habitat. The value of tamarisk rule and 2014 proposed critical habitat requirements under section 7 as well as for the western yellow-billed cuckoo rule. recovery actions or State coordination depends on geographic and site-specific Our Response: Since the publication efforts under section 6 of the Act. conditions. Tamarisk can contribute to of the 2014 proposed critical habitat Additional occupancy information is suitable western yellow-billed cuckoo rule, we have learned more about also sometimes obtained as a result of habitat where mixed with native habitat western yellow-billed cuckoos and their academic research on a species. Since or adjacent to native habitat, especially habitat use through information 2014, we estimate that the number of in Arizona and New Mexico. Tamarisk identified in published research, survey detections has not increased is the result of altered hydrology, and efforts, and field studies. This new significantly and this information has removal alone will not create a rebound understanding is included as the best not lead to widespread areas being in native, riparian habitat. However, available science at the time of found to be occupied outside those tamarisk removal combined with native publishing the 2020 revised proposed areas known since before listing, which tree replacement may benefit western rule. New information includes the identified the majority of occupancy yellow-billed cuckoos where sufficient species’ use of ephemeral drainages and population numbers occurring in water is available and long-term with relatively high humidity for Arizona and New Mexico. The only management and funding ensures tree breeding, in addition to the known use areas considered to be ‘‘new’’ but most survival. Because all the areas we of riparian woodlands. likely occupied at the time of listing are identified as critical habitat are Comment 50: Several commenters are those occurring in the ephemeral occupied, the section 7 consultation concerned about the expansion of habitats in southeastern Arizona requirements for protecting the listed identified critical habitat in certain associated with monsoonal events. species would still apply. areas of Arizona, such as in the upper Comment 51: Several commenters Comment 52: A couple of commenters reaches of the Big Sandy River and that expressed concern about designating raised issues pertaining to wildfire. One the additional areas (used as stop-over, critical habitat in areas that contain the expressed concerns about how critical dispersal, or breeding habitat) are not nonnative tamarisk and were concerned needed for critical habitat. They also habitat could lead to causing an whether it provided usable habitat and overgrowth of vegetation and potentially state that the rule fails to show how whether critical habitat locations with many of these areas will require special leave areas more vulnerable to tamarisk would interfere, delay, or catastrophic wildfires, while the other management. Other commenters discourage removing tamarisk for long- acknowledged the need for critical expressed concerns that the apparent term restoration efforts. One commenter habitat to balance the increased risk of expansion in Arizona is only due to stated that the nonnative tamarisk plant wildfire due to climate change. increased survey effort and that Arizona should not be identified as a physical or Our Response: We acknowledge that is disproportionately represented in the biological feature and listed as a 2020 revised proposed critical habitat. riparian plant species used by the wildfire risk exists within all habitat to Our Response: The reduction in western yellow-billed cuckoo, as it will varying degrees across the range of the riparian habitat (including mesquite impede removal of the nonnative plant DPS. The designation of critical habitat bosques) in Arizona has been well species and delay or discourage future does not mean that management for documented and western yellow-billed habitat restoration efforts. reduction of wildfire cannot occur. In cuckoos are no longer found in areas Our Response: As stated in our fact, the identification of critical habitat where riparian habitat no longer exists. revised proposed rule (see Tamarisk), as an educational tool may focus such Yet, remaining habitat within Arizona the nonnative tamarisk is often wildfire management actions to help remains an important stronghold for characterized as being poor habitat for conserve the habitat. We will continue breeding western yellow-billed cuckoos. wildlife. However, it can be a valuable to work with Federal, State, and Tribal As part of the core of the DPS, habitat habitat substitute where the hydrology governments and private landowners in Arizona needs to be conserved to of a stream or river has been altered to within the designation to implement enable western yellow-billed cuckoos to the extent that native woodland or appropriate wildfire management produce young that may eventually riparian habitat can no longer exist. actions within and outside any critical disperse to other parts of the DPS’s Western yellow-billed cuckoo use areas habitat designation. range. The Big Sandy River was containing tamarisk for breeding and Comment 53: Several commenters included because it contains breeding foraging, especially when mixed with stated that the description of the revised habitat as outlined in our conservation some native vegetation. In Arizona and proposed critical habitat conflicts with strategy. Although critical habitat areas New Mexico, it can provide cover, the breeding and foraging habitat may be used as migration corridors, temperature amelioration, food, and description in the 2014 proposed dispersal habitat and stop-over sites, nesting habitat. Actions such as clearing critical habitat and final listing rule. that is not why these areas were vegetation, modifying physical site Our Response: We have learned more designated. These areas were identified conditions, altering natural river about western yellow-billed cuckoo as critical habitat as they are breeding processes, and disrupting biotic foraging and breeding habitat since areas that are used consistently by the interactions have facilitated tamarisk publication of the 2014 proposed western yellow-billed cuckoo and dispersal to new locales, and created critical habitat and final rule for listing. provide for population maintenance and opportunities for its establishment. The revised proposed rule and this final growth as outlined in our conservation Because tamarisk is so widespread in rule include revised information on strategy. As mentioned in the rule, existing western yellow-billed cuckoo habitat features, foraging behavior, and riparian habitat (including xeroriparian) habitat and used for breeding and breeding areas.

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Comment 54: Numerous commenters regulations are not essential to the Comment 58: Many commenters stated they have concerns with western conservation of the species because they claimed that particular areas should not yellow-billed survey information (such currently do not, and in the future be designated because they believe that as interpretation, biases, and cannot, contain the primary constituent critical habitat will unnecessarily inconsistencies), a lack of elements of essential features; these regulate the public, will overload comprehensive statewide surveys, and corridors should be identified and Federal agencies with implementation the likely existence of unsurveyed areas removed from the final critical habitat of the designation, or is not necessary where western yellow-billed cuckoo designation. because the areas are already federally could be found. Our Response: When determining owned and therefore protected. Our Response: We recognize the lack proposed critical habitat boundaries, we Specifically, many landowners with of recent statewide survey information made efforts to avoid including water diversions, cattle ranches, and and that not all areas within the range developed areas such as lands covered agricultural property, plus residents in of the DPS have been adequately by buildings, pavement, and other areas dependent on recreation to surveyed. However, in development of structures because such lands lack the support local economies throughout the critical habitat, we are required to use PBFs. These types of developments are western yellow-billed cuckoo’s range, the best scientific and commercial not typically found adjacent to riparian commented that this designation would information available to identify those habitat and, when they do occur, may be cause them harm economically, could areas essential to the conservation of the missing from or inaccurately limit the ability of farmers and ranchers species. We used a combination of data represented in existing map sources. As to till productive farmland, could limit collected using the standardized survey a result, because of the large scope of use of fertile grazing land, could restrict protocol (Halterman et al. 2016, entire), this designation and the limitations of the utilization of critical water rights, data from species specific studies, and maps, any such developed lands, such and could delay projects through the other credible detection data. Although as cement pads that support regulatory process. we cannot always guarantee complete transmission or power poles or roads Our Response: We are required to accuracy in the survey information left inside critical habitat boundaries, designate critical habitat for listed provided to us, as of the 2014 listing, are not considered critical habitat species if we find that the designation the persons conducting protocol surveys because they lack the necessary physical is prudent and determinable as we did are required to complete Service- or biological features. Therefore, a for the western yellow-billed cuckoo. approved western yellow-billed cuckoo Federal action involving these The designation of critical habitat survey training prior to receiving a developed lands would not trigger applies to actions that are taken, permit under section 10 of the Act. section 7 consultation with respect to permitted, or funded by Federal Comment 55: Several commenters agencies. In our economic analysis, we critical habitat or the prohibition of expressed that with the new ephemeral did not find that the designation would adverse modification, unless the Southwest breeding habitat cause a significant change in activities specific action would affect the physical incorporated into critical habitat, there or delay or add additional regulatory or biological features in adjacent critical are areas available for western yellow- processes, as the majority of regulation habitat. However, Federal actions that billed cuckoos that are not subject to is already in place because the western may affect the species do require section threats, and that suitable habitat is now yellow-billed cuckoo is listed as a 7 consultation. If lands surrounding broader and more common, questioning threatened species. Agricultural and existing powerlines, towers, or rights-of- the need for critical habitat. grazing activities and water operations way are occupied by western yellow- Our Response: Our characterization of were not identified as facing significant Southwestern breeding habitat is to billed cuckoos, Federal activities such changes to costs due to the designation. better define the physical or biological as maintenance that may affect the Comment 59: One commenter claims features of habitat throughout the range species during the breeding season that the Service reversed course from of the species. Historical descriptions of require section 7 consultation. the proposed rule and now contends habitat were largely based on research Comment 57: One entity claimed that that western yellow-billed cuckoo uses in the Sacramento Valley, CA, or other any restriction on mining to maintain nonriparian habitats that occur along areas known to have occupied habitat in critical habitat would have a dramatic dry drainages and adjacent uplands. The large expanses of floodplain areas, impact on mining operations and that commenter questioned the new category which is often different ecologically any such restrictions are attributable of southwestern breeding habitat and than habitat in the Southwest as far as solely to the designation of critical stated that, to their knowledge, this use vegetation and environmental habitat. of habitat and habitat description have conditions. These changes were Our Response: The areas currently of not been previously recognized or reflected in our description of the PBFs interest to mining activities located in or described by ecologists. for the species. The changes to the near critical habitat boundaries are Our Response: Southwestern breeding description of habitat, by including a occupied by the western yellow-billed habitat is similar to breeding habitat in separate description for Southwest cuckoo and would be subject to either Mexico. We identified southwestern breeding habitat, does not mean that section 7 or section 10 consultation breeding habitat to better identify and additional areas are now available and requirements of the Act due to the describe the physical or biological being used by the species. Southwest species being listed as threatened. As features essential to the conservation of breeding habitat is threatened by many described in our economic analysis (IEc the species and assist us in conducting of the same activities as the rest of the 2019, entire), the majority of regulatory section 7 consultations for areas within DPS that has led to the loss of western requirements as a result of any critical critical habitat. As described in the yellow-billed cuckoos and their habitat. habitat designation would be Critical Habitat section, features such as Comment 56: One commenter claimed administrative in nature and be understory and overstory components that habitat areas within existing power conducted by the Federal agency that with high humidity are considered line corridors and rights-of-way that are may have approved, permitted, or important for habitat selection for required to be maintained under provided funding for the mining breeding western yellow-billed cuckoos. existing Federal energy laws and activities. This is especially true in ephemeral

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tree-lined xeroriparian drainages. the 2020 revised proposed critical was largely based upon the loss of Western yellow-billed cuckoos have habitat. The commenter suggests that riparian woodland habitats. The only recently been discovered using this the Service did not provide any addition of southwestern breeding habitat and studies are underway in rationale for these changes, which habitat is not only counter to the southeastern Arizona to determine appear to contradict efforts for species Service’s well-documented historical where western yellow-billed cuckoos conservation. The revised proposed rule ‘‘understanding’’ of species ecology but are and are not occupying habitat during effectively makes Arizona the central also conflicts with the Service’s basis for the breeding season. Surveys to date focus for western yellow-billed cuckoo listing the species. This undermines the have not found western yellow-billed conservation. This counters previous legitimacy of the species listing, and as cuckoos in ephemeral tree-lined information that the western yellow- a result, the Service is obliged to xeroriparian drainages where high billed cuckoo is considered a riparian conduct a thorough review of the humidity is lacking. obligate species and such riparian species status. Comment 60: One commenter asserts habitat and perennial streams are Our Response: Loss of habitat and that the addition of southwestern limited in Arizona. breeding location activity for the breeding habitat significantly increases Our Response: As described in the western yellow-billed cuckoo is well the number of critical habitat units and revised proposed rule, we developed a documented. The DPS continues to see total area of critical habitat in Arizona. conservation strategy to identify areas population number declines throughout Many of the Arizona critical habitat for critical habitat. Some areas in the the Western United States with the only units are based on a handful of 2014 proposed rule were small, isolated, remaining strongholds for the species detections over the past two decades, and contained single or very few records being in Arizona and New Mexico. Our raising questions about whether the of occupancy for the breeding season. description of habitat and the additional habitat can be considered occupied and As a result of our conservation strategy, use of habitat in ephemeral drainages whether the areas are essential to the we focused the designation on areas does not change our understanding of conservation of the species. The where we could confirm large numbers the status of the species. We completed commenter states as a result the Service of breeding pairs and consistent a status review and determined that the failed to conduct a thorough, systematic breeding activity. For the western western yellow-billed cuckoo continues review of the data and species’ needs in yellow-billed cuckoo, this means to warrant listing as a threatened species the development of the revised identifying areas in Arizona and New (85 FR 57816). Therefore, we continue proposed rule. Mexico. Arrival of the western yellow- to be driven by a court-ordered deadline Our Response: We followed specific billed cuckoo in the western United to complete a final designation. occupancy criteria to determine areas of States occurs from Mexico north Comment 63: One commenter claims critical habitat and developed a through Arizona and New Mexico that the revised proposed rule presents conservation strategy for the designation (Cornell Lab of Ornithology 2020). In contradictory information and suggests (see Criteria Used To Identify Critical addition, new information indicates that the Service has yet to develop a Habitat, Conservation Strategy). Western western yellow-billed cuckoos are coherent understanding of this species. yellow-billed cuckoos are found in low breeding in a greater variety of riparian The commenter suggests that there are densities and some units have more habitat in the Southwest, and as such, clear gaps in the Service’s occupancy data than others depending this knowledge was used to ensure we understanding and explanation of the on survey efforts. Because western protect the breadth of this breeding species’ prevalence and its habitat yellow-billed cuckoos are selective in habitat. Arizona has more currently needs. These gaps should be resolved using breeding habitat, have large home occupied drainages and breeding before the Service proceeds with the ranges, are difficult to detect, and occur locations than other western states and critical habitat designation. The in low densities, and surveys have although many surveys have been commenter’s preference is for the occurred only in limited reaches of conducted, only a small proportion of Service to reevaluate this listing and available habitat, we expect territory drainages have been surveyed. proposed designation. numbers per length of drainage Therefore, ensuring habitat remains for Our Response: The information in this surveyed to be small (one to four the species in the core of the population final designation is not contradictory. individuals or pairs is not uncommon). is important for dispersal to other Our rationale for identifying and If the species is found repeatedly in one geographic areas with fewer western determining areas as critical habitat, our part of the drainage, and similar habitat yellow-billed cuckoos. The core area for description of the PBFs essential to the occurs upstream and downstream, we this species in the United States is conservation of the species, and our assume other individuals may be primarily in Arizona and New Mexico conservation strategy for determining present. Because most surveys are in large river systems with riparian critical habitat are consistent with each conducted by one or two surveyors per habitat, and in xeroriparian habitat other and provide a strong basis for the drainage, only a small length of drainage influenced by monsoonal conditions. determination. There are information can be surveyed in any given year, We considered and included new gaps regarding western yellow-billed yielding a small number of western information acquired since listing. We cuckoo occupancy and habitat use, and yellow-billed cuckoos in a given reach. did not include all occupied riparian our understanding is continually This contrasts to a focused wide-ranging habitat, but based decisions on evolving as we accumulate more survey such as on the Rio Grande with representative habitat types and their information. We have designated critical many surveyors that find many records distribution. In western states outside of habitat in accordance with the best along a longer reach. Arizona and New Mexico, large river scientific and commercial information Comment 61: One commenter stated systems used for breeding by western available, as required by the Act. that many riparian woodlands in areas yellow-billed cuckoos provide for Comment 64: Two local government outside Arizona and New Mexico are additional redundancy and entities in California claim that the known to support western yellow-billed representation. designation would have a large impact cuckoo and were proposed as critical Comment 62: One commenter stated on agricultural practices and the local habitat in 2014. They were concerned that the Service’s rationale for listing the economy. One of the two commenters that these areas have been dropped from western yellow-billed cuckoo in 2014 also stated that access to lands would be

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restricted, grazing limits imposed, and have revised our designation of the nature of habitat conditions and prey trout stocking, logging, mining, and critical habitat within Unit 64 (CA–2) at availability. As a result, the NWR recreation would be impacted. The Lake Isabella to avoid those areas boundaries would not account for all other commenter stated they have typically inundated and within the the areas essential to the conservation of drafted the Butte Regional Conservation floodplain of the reservoir. These areas the species, and by limiting them to the Plan to conserve western yellow-billed are part of the flood control NWR boundary, the designation would cuckoo and its habitat. Both management and operations conducted not meet the needs of the species. commenters requested exclusion. by the Corps established under separate Comment 67: One group said that Our Response: For both the 2014 authorization. In addition, the Corps has portions of their land included in Unit proposed critical habitat and the 2020 already consulted with the Service on 63 (CA–1) along the Sacramento River revised proposed critical habitat, we its operations of Lake Isabella for both do not contain the PBFs and therefore completed economic analyses to the southwestern willow flycatcher and are not critical habitat. They also stated examine the incremental costs the western yellow-billed cuckoo. that they have worked with the CDFW associated with the designation of Because these areas have been removed, on habitat actions, and requested that critical habitat. The economic analyses any activities associated with the portions of their lands be excluded. did not identify significant impacts, and operations of Lake Isabella by the Corps Our Response: We reviewed the areas the two local government entities did would not be impacted by the identified by the commenter and not provide economic information designation of critical habitat. In adjusted the boundary of the unit to regarding any of the activities identified. addition, two areas where the Corps reflect those areas containing the PBFs. Nor did they provide information or a obtained conservation easements are We also reviewed the information reasoned rationale supporting their also being excluded under section regarding the landowner’s agreement requests for exclusion which is 4(b)(2) of the Act (see Exclusions Based with CDFW. After review, we find that necessary for the Service to engage in an on Other Relevant Impacts). the landowner’s agreement does not exclusion analysis. Critical habitat does Comment 66: Several organizations meet our criteria for exclusion of plans not restrict private landowner access to and groups requested that Unit 63 (CA– as outlined in our policy for exclusion their property and would need to be 1) along the Sacramento River be (81 FR 7226) because it does not contain considered only if Federal agency excluded from the designation for these sufficient measures to conserve the funding, or permitting for an activity is stated reasons: Increased costs to PBFs of the species’ habitat or include needed. Because the areas are agriculture, concerns about flood measures for adaptive management that considered occupied, the majority of control, National Wildlife Refuge (NWR) would ensure that the conservation costs are not associated with the lands along the Sacramento River measures are effective and can be designation, but with listing of the already protect western yellow-billed modified to respond to new species as threatened. In our mapping of cuckoo and its habitat, and additional information. Therefore, we did not critical habitat, we avoided areas areas are not needed. consider the area identified for associated with agriculture and focused Our Response: The commenters exclusion. on areas that contained the physical or provided general statements of their Comment 68: Numerous biological features for the species. In request that Unit 63 be excluded but did environmental organizations and several some cases, due to the habitat being not provide information or a reasoned other local environmental groups stated fragmented from development or rationale supporting their request for that the entire proposed critical habitat agricultural conversion, we drew the exclusion. In designating critical areas should be designated without any boundary to encompass the various habitat, we avoided areas that contained exclusions and that exclusion of areas habitat patches. In such instances, some developed or agricultural lands based should not rely on southwestern willow small areas not containing the physical on aerial imagery and land flycatcher management plans or its or biological features are within the classification. Our economic analysis critical habitat for conservation of the boundary of the designation. Any such did not identify that designation of western yellow-billed cuckoo. They also areas would not be considered critical critical habitat would significantly provided information about adding habitat because they do not contain the impact agricultural activities above and additional areas and expanding physical or biological features. The beyond what may be required because proposed areas to be sure to include Butte Regional Conservation Plan is still of the species’ listed status under the connectivity and stop over areas as well in draft form and has not been approved Act. The critical habitat designation as migratory routes up to and including by the Service or the State under its occurs along the banks of the main stem entire river corridors. Natural Community Conservation of the Sacramento River. The Our Response: Our designation of Planning (NCCP) program. designation of critical habitat would not critical habitat for the western yellow- Comment 65: Several commenters impact normal water delivery, flood billed cuckoo was developed based on provided their concerns relating to control actions, or stream flows required a specific conservation strategy to assist designation of critical habitat at Lake for emergency operations. In fact, such in recovery of the species (see Criteria Isabella, California. The issues raised unregulated flows assist in mimicking Used To Identify Critical Habitat were concerning potential impacts to natural high flow events, which can (Conservation Strategy)). Based on our public safety for disruption of reservoir benefit sediment deposition and provide conservation strategy, we have operations, flooding, and potential new vegetation growth for use by the concluded that the areas identified as wildfire due to vegetation growth as western yellow-billed cuckoo. In proposed critical habitat and now being well as increased economic costs for the determining the extent of critical habitat designated are sufficient in meeting our local economy from loss of recreation within a unit, we based the boundaries critical habitat designation requirements and water use. on areas where the species has had under the Act. The conservation strategy Our Response: Although we would continuous or nearly continuous records provides for many of the measures not expect a designation of critical of confirmed or presumed breeding. We identified by the commenters. While we habitat to impact the commenters’ delineated critical habitat boundaries to agree with the commenters that concerns identified above or increase provide connectivity between breeding additional areas outside the current economic cost to the local economy, we locations and account for the dynamic designation are important and would

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contribute to recovery, the designation community. As a result, we have proposal is insufficient for recovery of of critical habitat is not intended to sufficient information to determine the the species. identify all areas important for a areas essential to the conservation of the Our Response: In our revised species, but just those considered species as critical habitat. Under the proposed critical habitat, we developed essential. The Secretary has broad Act, we are required to designate critical and described our conservation strategy discretion in determining if areas are habitat for threatened and endangered to identify those areas considered to be appropriate for exclusion under section species. The commenter’s statement that essential to the conservation of the 4(b)(2) of the Act. Our evaluation for the existing regulatory mechanisms are species. In implementing our strategy, determining if an exclusion is sufficient to protect habitat for the we focused on designating areas where appropriate includes a detailed analysis species is confusing one of the factors the western yellow-billed cuckoo has and balancing on whether the benefits considering in listing a species under shown to have consistent and recent of excluding outweigh the benefits of the Act with the designation of critical occupation as a breeder. Consequently, including an area as critical habitat as habitat. The Act requires Federal areas where sightings or presumed breeding were sparse or inconsistent long as the exclusion does not lead to agencies to use their authorities to were not included in the 2020 proposal, an extinction of the species. The conserve endangered and threatened as these areas were not considered as exclusions we have identified include species and to consult with the Service implementation of HCPs, other part of our conservation strategy for about actions that they carry out, fund, management plans, conservation designating critical habitat. Not or authorize to ensure that they will not agreements, or conservation easements designating areas as critical habitat does destroy or adversely modify critical that protect or implement specific not mean they are unprotected under conservation measures for the western habitat. The prohibition against the Act. The western yellow-billed yellow-billed cuckoo or its habitat (see destruction and adverse modification of cuckoo is a threatened species and is Exclusions). As a result, we determine critical habitat protects such areas in the protected by the prohibitions in section that excluding these areas under section interest of conservation. In our 9 the Act. Critical habitat is just one of 4(b)(2) of the Act is appropriate. determination of critical habitat, we the tools we use for species Comment 69: One commenter claimed took into account the regulatory conservation. Not including areas as that the Service ignored, withheld, hid, requirements of listing the western critical habitat does not mean the areas or discounted information and as a yellow-billed cuckoo as a threatened outside the critical habitat boundaries result did not meet the best scientific or species and evaluated any incremental are not important or cannot be commercial information standard under impacts and additional regulatory identified in future recovery planning. the Act in making its determination of responsibilities of designating critical We stand by our strategy for designating critical habitat. The commenter further habitat. We found that any increase in critical habitat for the western yellow- stated that the western yellow-billed regulatory requirements as a result of billed cuckoo as the areas identified cuckoo only rarely uses habitat in the critical habitat would most likely be contain the PBFs, meet the definition for western DPS on a migratory and administrative in nature in regard to critical habitat, and support relatively seasonal basis, which therefore inhibits Federal agency compliance with large consistent breeding habitat for the the Service’s ability to delineate habitat evaluating any adverse modification species. that contains the physical and biological aspects of actions they carry out, fund, Comment 71: One organization and features to justify the designation of or authorize. others stated that they were opposed to limiting the designation and that a full critical habitat. As a result, the Comment 70: In 2015, we received a NEPA analysis be conducted. They also designation of critical habitat for the spreadsheet outlining 83,454 identical state that the Service does not western yellow-billed cuckoo would be comments supporting critical habitat adequately describe economic benefits not prudent or determinable. Lastly the and 3,609 nearly identical public of designation of critical habitat. They commenter stated that existing comment letters. We also received regulatory mechanisms are sufficient to contend that the Service erroneously another spreadsheet containing 6,317 protect habitat and the designation of relies on plans for other species to nearly duplicative comments in 2020. critical habitat is not necessary and exclude areas from critical habitat and The latter commenters were similarly would contribute to an already heavy that if exclusions occur, they should supportive of critical habitat but stated regulatory burden for the industry. have clear explanations on why the Our Response: In development of the that all habitat should be designated areas are excluded. The commenters proposed, revised, and this final rule including additional areas smaller than stated that the Service should ensure designating critical habitat, we used the 200 ac (81 ha) due to the decline of the that the designation will not interfere best scientific and commercial species and its habitat. The 2020 with habitat restoration efforts to information available. We find the comments supported the inclusion of remove tamarisk. Lastly the commenters commenter’s statements regarding our additional areas not identified in the contend that the Service should ensure ignoring, withholding, hiding, or 2014 proposal, but were disappointed that no agricultural application of discounting information and not using that numerous areas were removed or pesticides has the potential to affect the best scientific and commercial partially removed (i.e., Eel (CA), Yampa western yellow-billed cuckoo or information available to be baseless. In (CO), Conejos (CO), Santa Maria (AZ), alternatively the Service should expand the final listing rule, proposed critical and Carson (NV) Rivers) without reason units that are adjacent to areas with habitat rule, revised proposal, and this and stated that we should protect agricultural use so that the application final rule, we describe the habitat, additional areas including every stream of pesticides does not impact the migratory and arrival patterns, nesting and river stretch where western yellow- species or its insect prey. Another behavior, and behaviors of the western billed cuckoos nest. They state that commenter stated rotenone was of yellow-billed cuckoo and its use of many of these areas are targeted for particular concern. habitat in great detail. The available development, and so a failure to protect Our Response: We developed a information on the species’ life history them will eliminate places for western conservation strategy to determine and habitat use patterns is well yellow-billed cuckoos to nest. As a which areas to consider as critical documented by the scientific result, they stated that the current habitat. This strategy has led us to

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appropriately identify the extent and western yellow-billed cuckoo. For this for conservation and recovery of the distribution of critical habitat for the designation we have looked at species. The commenter states that the western yellow-billed cuckoo (see numerous southwestern willow Service should identify areas as critical Conservation Strategy). The designation flycatcher management plans and found habitat for foraging, dispersal, and provides for critical habitat in areas that that in cases where breeding areas migration (including unoccupied areas have shown consistent breeding and overlap, management actions to protect in the species’ historical range) and that typically have a large number of and conserve riparian habitat are the 200-ac (81-ha) minimum size filter breeding birds. The designation generally consistent for both species and should be removed. Lastly, the provides for habitat in each of the that using these plans is appropriate for commenter states that the Service differing landscape level ecosystems conservation of the western yellow- should not exclude any areas, especially where the western yellow-billed cuckoo billed cuckoo. those that rely on southwestern willow occurs. Restoration of habitat to eliminate flycatcher management plans. In regard to economic benefits, a tamarisk could benefit the western Our Response: In determining critical primary reason for conducting the yellow-billed cuckoo. However, the habitat for the western yellow-billed economic analysis is to provide restoration of riparian habitat is difficult cuckoo, we developed a conservation information regarding the economic and requires long-term commitments strategy to identify those areas essential impacts and benefits associated with a from stakeholders. Mere removal of to the conservation of the species. We critical habitat designation. Executive tamarisk, despite being a nonnative made the changes from 2014 to 2020 to Order 12866 directs agencies to assess species, would be strongly discouraged reflect implementation of this strategy the costs and benefits of any regulatory regardless if the area is within critical (see Criteria Used to Identify Critical action. The primary intended benefit of habitat or not. In Arizona and New Habitat (Conservation Strategy)). In critical habitat is to support the Mexico, the western yellow-billed delineating the areas, we included conservation of threatened and cuckoo uses and breeds in tamarisk- breeding habitat that also accounts for endangered species, such as the western dominated sites, especially if other western yellow-billed cuckoo needs for yellow-billed cuckoo. However, public native vegetation components still exist foraging, dispersal, and migration. We perception of limits imposed by the at the site. The western yellow-billed did not consider unoccupied areas for regulation may inadvertently cause cuckoo also uses areas dominated by critical habitat because we determined changes in future land use, and as a tamarisk for foraging. Actions to remove that occupied areas were sufficient to result may provide additional benefits tamarisk and restore riparian vegetation conserve the species. In response to our to the species and its habitat. In our would also need to go through section 200-ac (81-ha) selection criterion, we economic analysis, data limitations 7 consultation or section 10 permitting used this as a general rule rather than prevented us from quantifying such requirements due to the western yellow- a strict cut-off of considering areas. In additional economic benefits. billed cuckoo being listed as a our proposed rule, we took into account Quantification of these benefits would threatened species with critical habitat the importance and distribution of require primary research and the being evaluated only as to whether habitat and included several areas in the generation of substantial amounts of Federal actions carried out, funded or revised proposed rule that included less new data, which is beyond the scope of permitted would adversely modify such than 200 ac (81 ha). These areas have our analysis and Executive Order 12866. areas as defined by the Act. been excluded from the final Prior to publication of the revised The western yellow-billed cuckoo is designation due to management. We proposed rule, we completed a draft protected by all the section 9 have determined that our exclusion of NEPA analysis for the designation of prohibitions under the Act, which certain areas meets our standards under critical habitat and made the document includes actions that harm, pursue, section 4(b)(2) of the Act in that the available to the public by request or hunt, shoot, wound, kill, trap, capture, benefits of exclusion outweigh the through the Sacramento Fish and or collect, or attempt to engage in such benefits of inclusion as critical habitat Wildlife Office website. After the public conduct. Pesticide use and application and will not lead to extinction of the comment period and our determination for agricultural purposes, including use species (see Exclusions). of the areas to be designated, we of rotenone, is already regulated under Comment 73: Several environmental finalized an environmental assessment Federal, State, and County laws, organizations specifically raised with a finding of no significance under regulations, or permits. Such concerns that the areas identified at NEPA. In our process for excluding application takes into account measures Elephant Butte Reservoir be expanded areas from critical habitat, we conduct to avoid and reduce impacts to wildlife to include additional critical habitat. a balancing analysis describing the and nontarget areas. Expanding They also suggested justification and benefits of including an area as critical additional area around critical habitat is changes to the Service’s conservation habitat versus the benefits of excluding not the intent of designation under the strategy, and that the Service must do a an area as critical habitat. Our reasoning Act and our implementing regulations. carrying capacity for units before we and logic for coming to our conclusion In determining critical habitat, we are to discount designating unoccupied areas. on whether we are or are not excluding identify those areas essential to the Our Response: In our 2020 revised an area is included for each exclusion conservation of the species by proposed rule, partly in response to and follows our Policy for Exclusions identifying areas that contain those comments received in 2014 and 2015, (81 FR 7226) (see Exclusions). physical or biological features used by we extended the proposed designation As for using other species’ the species. Including additional areas of the Rio Grande from Elephant Butte management plans as justification to that do not contain any physical or Reservoir upstream (Unit 37, NM–6B) to exclude an area, we do this on a case- biological features would be contrary to better reflect the areas being used as by-case basis. For us to consider use of our implementation of the Act. breeding areas by the western yellow- other species’ management plans, we Comment 72: One commenter was billed cuckoo. look to whether habitat needs and use concerned that all of the areas As a result of comments received, we are similar for each species to the point previously identified in 2014 were not reviewed our conservation strategy and that the management of the other being included and that the new areas made minor edits and included species’ habitat will also benefit the identified in 2020 are still not sufficient additional language for its justification

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(see Criteria Used to Identify Critical conditions due to the effects of climate quality, or value of the PBFs of the area Habitat (Conservation Strategy) in this change. identified as critical habitat. That is, document). Comment 75: Numerous commenters when evaluating the effects on critical Although we didn’t complete a stated that the designation of critical habitat, we consider ongoing water carrying capacity for the designation as habitat would impact water management operations at Federal suggested by the commenters, based on management and disrupt water facilities within the areas identified as the information available, some areas availability, distribution, and delivery critical habitat are often not within the have sufficient habitat that is underused operations in the range of the western agency’s discretion to modify and by the species. One example of this is yellow-billed cuckoo. would be part of the baseline in any habitat along the Sacramento River in Our Response: The disruption and effects analysis. This is particularly true California. In our designation of critical changes to ‘‘natural’’ river and stream of areas upstream of reservoirs. The habitat, we included a large extent of processes, which help the development normal operations of filling and draw- habitat along the Sacramento River, and regeneration of riparian vegetation, down of reservoirs often mimic the which, despite losses, has had a large have been identified as a threat to the flooding and drying events associated population of breeding western yellow- species. However, the majority of with intact riparian woodland habitat billed cuckoos. In recent years, this area streams and water delivery facilities and river systems providing habitat for has been and continues to be the focus within the range of the western yellow- the western yellow-billed cuckoo. of numerous habitat restoration efforts billed cuckoo are at least partly Therefore, we do not expect that the to assist in development of riparian managed by Federal entities or would continuation of existing water habitat for numerous sensitive and have a Federal nexus. As a result, these management operations would listed species. Although these Federal agencies and other entities that appreciably diminish the value or restoration efforts have made more are funded or permitted by the Federal quality of the habitat. As a result, we habitat available, the western yellow- entity have an obligation to conserve consider the amount and distribution of billed cuckoo has not reoccupied these endangered or threatened species and critical habitat we identified to be their habitat. However, since listing of areas; consequently, habitat is not appropriate based on the conservation the western yellow-billed cuckoo, we currently considered a limiting factor strategy we developed for the have not become aware and the for the species (Dettling et al. 2015, pp. designation of critical habitat for the commenter did not provide any 6–13). western yellow-billed cuckoo. examples of any major changes to water Comment 77: One commenter stated Comment 74: One commenter stated availability, distribution, and delivery that the designation of critical habitat is that the critical habitat designation operations in the range of the western duplicative regulation in that should be expanded to protect more yellow-billed cuckoo. Our economic regulations are already in place to areas to accommodate for species shifts analysis did not identify these water protect riparian habitat and waterways. in habitat use due to changing management actions as incurring The Service should not just focus on environmental conditions brought about significant costs. As a result, water habitat in the United States, but look to by climate change. The commenter cites management actions are unlikely to be other areas for conservation actions, one journal article to support its claims disrupted. To the extent agencies especially in their wintering grounds in regarding climate change (Thomas and propose to modify their water South America. Gillingham 2015, entire). management actions in a manner that Our Response: Because the western Our Response: The study referenced does not appreciably diminish the value yellow-billed cuckoo is a threatened by the commenter contends that of the critical habitat as a whole for the species, we are required under the Act conservation of a species may be western yellow-billed cuckoo, it is to designate critical habitat. According assisted by preserving and protecting unlikely that these activities would to the Act, critical habitat applies only areas throughout and outside a species’ meet the definition of destruction or to areas in the United States and not to range to make habitat available to adverse modification of critical habitat areas in other countries as it applies to address potential changes of habitat under the Act. actions conducted, funded, or permitted conditions resulting from the effects of Comment 76: Numerous commenters by U.S. Federal entities. Although the climate change. The western yellow- stated that the western yellow-billed commenter is correct that conservation billed cuckoo is a wide-ranging species cuckoo has lost nearly 90 percent of its actions should be taken to protect and and still occurs throughout its historical breeding habitat due to human activities conserve areas in the western yellow- range from southwestern Canada down and that the species is further billed cuckoo’s wintering grounds, we to Mexico during its breeding season. threatened by water delivery and water cannot designate critical habitat in other Environmental conditions within this management activities in the West. As a countries. wide north-south range vary greatly, and result, the Service should designate Comment 78: One commenter claimed the effects of climate change identified additional areas as critical habitat. that additional research is needed to for this species were found not to be a Our Response: In our October 3, 2014, determine which areas should be major concern due to this variability in final listing rule (79 FR 59992), and in protected and considered critical habitat habitat and the species’ ability to seek our February 27, 2020, revised proposed for the western yellow-billed cuckoo out appropriate habitat (see Critical designation of critical habitat (85 FR especially in light of future habitat loss Habitat). Based on our conservation 11458), we discuss habitat loss for the from development. strategy for designating critical habitat, species from various actions as well as Our Response: We are required to the extent and distribution of areas the impacts associated with water designate critical habitat based on the identified in the revised proposed rule delivery and management. We consider best scientific and commercial data and this final rule meet our existing water management operations available. We have extensive requirements under the Act to designate in place on riverine segments identified information on habitat use by the areas essential to the conservation of the as critical habitat, unless modified species and consider our designation to western yellow-billed cuckoo as critical subsequent to this revised proposed be appropriate based on that habitat and will most likely incorporate designation, are unlikely to have any information and our conservation any variability in environmental discernible effect on the quantity, strategy. Should new information

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become available that requires revision livestock grazing operations throughout under section 3(5)(A)(i) of the Act. of critical habitat, we have the authority the designation. Because one or more of the physical or to do so under the Act. Our maps in the proposed and this biological features identified for the Comment 79: Several commenters final designation follow certain western yellow-billed cuckoo occur stated that the Service relies on guidelines to incorporate such maps throughout most areas occupied by the unfounded claims regarding habitat loss within the Federal Register. Exact maps DPS, we used the conservation strategy and is not in compliance with its showing land ownership and details to to assist us in determining those areas requirements to use the best science the scale recommended by the that are essential to the conservation of available in making critical habitat commenter are not feasible to include in the species. determinations. Several other the Federal Register. We stated in our Our economic analysis appropriately commenters state that the threats from proposed rule and this document that considers those incremental effects of livestock from overgrazing are additional information regarding the the designation of critical habitat and unfounded based on existing range critical habitat can be obtained by applies costs to the incremental actions management practices. They specified contacting the Lead Field Offices for the and not additional costs for actions in that the designation of critical habitat is designation. unoccupied habitat. As stated above, expected to place a significant economic Comment 80: One group raised because we consider the areas occupied, burden on livestock grazing operations several concerns regarding the the majority of costs associated with the within the States of California, Arizona, designation. The commenter claims that designation are incremental to costs to and New Mexico. They opposed the the Service does not adequately identify Federal agencies for actions they proposed rule and requested that its rationale for determining and conduct, fund, or permit that may affect overgrazing be removed from the justifying whether areas are occupied by the species. With the addition of critical language of the rule. In addition, one the western yellow-billed cuckoo and as habitat, Federal agencies will now also commenter states that the maps showing a result fails to justify designating analyze whether their actions within the the designation of critical habitat are unoccupied areas. The commenter states critical habitat boundaries result in that the Service also needs to further difficult for landowners to determine adverse modification or destruction of justify its conservation strategy by critical habitat accurately and should designated critical habitat, and we explaining how it comports with the determine habitat boundaries to the consider those costs to be administrative statutory and regulatory procedures of nearest inch. in extent. the Act. They further state that the In regard to expanding our textual Our Response: The loss of habitat Service underestimates economic costs exclusion descriptions, our descriptions from numerous threats is well by limiting the costs to ‘‘administrative’’ are adequate and the list of manmade documented throughout the range of the costs, and lastly the textual exclusions features are merely examples of the western yellow-billed cuckoo. One should be expanded beyond ‘‘manmade types of features that do not constitute compendium identifies 480 state-of- structures’’ by revising our definition of critical habitat within the designated knowledge publications about the aqueducts to include ditches, canals, areas. The commenter should focus on threats facing and factors contributing to and related structures and include whether the feature is manmade and the loss of riparian habitat in the West, maintenance and vegetation removal in hardened such that any physical or including the effects from agriculture, right-of-ways. biological features would not be present. climate change, dam construction, Our Response: We consider the areas In response to vegetation clearing from disease, drought, nonnative species, fire, selected as critical habitat to be right-of-ways see our response to floods, flow regulation, forest occupied based on survey records, State Comments 7 and 56 above. harvesting, grazing, groundwater Heritage occurrence data, surveys, Comment 81: One commenter claims depletion, insects, mining, recreation, published documents, and information that the Service is reversing its roads, water diversions, urbanization, received during the public comment longstanding view that western yellow- and water quality (Poff et al. 2012, periods. In our selection of breeding billed cuckoo habitat comprises riparian entire). We did not include all the areas, we used this information and woodlands along large streams and that references cited in this publication in selected those areas that showed recent it needs large areas for breeding. This our proposed rule for critical habitat, as and consistent occupation as a breeding change to the Service’s identification of the focus of designating critical habitat site or assumed breeding based on habitat and use by the species greatly is not threat identification or loss but timing and behavior. One of our increases the habitat available for the determining areas essential to or for the purposes of revising the 2014 proposal western yellow-billed cuckoo. The conservation of a threatened or was to focus on those areas that commenter estimates that over 65 endangered species. documented this information and not to million ac (26 million ha) of habitat are Our intent of identifying cattle grazing designate areas that have sporadic or available for use by the species based on in the 2020 revised proposed rule was low breeding numbers. Because we the Service’s description and on eBird not to imply that all cattle grazing appropriately document and justify the record information (Cornell Lab of activities are detrimental to habitat for areas as being occupied, we do not Ornithology 2020, entire). The the western yellow-billed cuckoo; on inappropriately negate our obligation to commenter then concludes that the the contrary, we mentioned cattle discuss unoccupied critical habitat. See Service needs to reevaluate the species’ grazing to identify areas where proper Selection Criteria and Methodology listing status as threatened because it grazing operations have been Used to Determine Critical Habitat for a did not consider this habitat use and implemented to either coexist or discussion of our rationale for availability in its 2014 listing enhance habitat conditions. We have determining critical habitat. determination. clarified the language regarding In determining critical habitat, as Our Response: Our identification of livestock grazing in this final rule. Our described in our 2020 revised proposed habitat follows our requirements to economic analysis of the incremental and in this final rule, we developed a specifically identify the areas containing impacts of critical habitat did not conservation strategy to identify those the physical or biological features identify significant costs attributed to areas essential to the conservation of the (PBFs) essential to the conservation of the designation of critical habitat for western yellow-billed cuckoo as defined the species. After publication of the

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2014 proposed critical habitat, we habitat does not specifically restrict does not change that; it just ensures that received comments that our description activities on private lands unless those Federal projects do not cause adverse of the primary constituent elements activities require Federal approval or are modification to western yellow-billed (now referred to as PBFs) were not federally funded. Some third party cuckoo habitat. Although there is descriptive enough and did not entities (e.g., State or County further development planned for the characterize habitat specifically for the governments) may require additional riverfront area, most of these actions are western yellow-billed cuckoo. In regulatory reviews and other not in conflict with designation of response to those comments, we revised requirements as a result of the area’s critical habitat because the areas being the description of the PBFs to better inclusion as critical habitat, but those developed in the area do not provide the describe the habitat used by the species additional reviews are not a requirement physical and biological features needed so that Federal action agencies and the under the Act. We welcome the for western yellow-billed cuckoo and public could more easily identify such implementation of conservation are not critical habitat by definition. areas. Except for areas identified as measures that would benefit the western Comment 86: Several commenters in critical habitat associated with monsoon yellow-billed cuckoo and its habitat as Colorado requested more public influenced habitat in southern Arizona, long as those activities take into account outreach and information regarding the we have not significantly changed the impacts to the species either through designation and potential economic areas considered as breeding areas used section 7 or section 10 of the Act. impacts of critical habitat. by the western yellow-billed cuckoo. Comment 84: Several local Our Response: For the proposed and We have completed our status review of government entities raised concern that revised proposed designation, we the western yellow-billed cuckoo, designation of critical habitat in noticed and provided public outreach which includes an evaluation of the Colorado (Units 68 and 69) could have directly and indirectly to city and local additional habitat used by the species severe economic impacts to areas of entities. In conducting outreach, we and found that delisting was not significant agricultural production in strove to engage the public through warranted (85 FR 57816). Colorado that rely on continued multiple traditional and social media Comment 82: One commenter operation of irrigation facilities. outlets. The 2020 economic analysis Our Response: Our economic analysis expressed concern for designating found that most economic impacts from did not find that there would be critical habitat in areas where the critical habitat designation are due to significant economic impacts to species has not been recently perceived increases in Federal agriculture from the designation of documented. regulation, especially on property Our Response: We used the most critical habitat. This includes impacts to values, rather than actual regulations. current information available to third party entities such as local To this extent, our Grand Junction determine occupancy of areas we are governments or private landowner designating as critical habitat. The activities. The majority of impacts to Ecological Services Field Office is information we used included State agricultural stakeholders are associated available to meet to clarify the natural heritage data, survey with listing of the species as threatened implications of critical habitat information, section 10 permit reports under the Act and remain unchanged by designation. as well as online public occurrence this designation. Comment 87: One group requested information (Cornell Lab of Ornithology Comment 85: Several commenters elimination of all proposed critical 2020, entire). We solicited for and stated that Unit 68 should not be habitat within Delta County, Colorado. received additional occupancy designated as critical habitat because Our Response: We have considered information during our public comment designation could delay and derail and applied the best scientific and periods. A part of our selection criteria restoration activities and construction of commercial information available was to not identify areas with older or the recreational Riverfront Trail, and regarding the designation of critical limited detection information so that we inhibit management of local riverfront habitat for the western yellow-billed could focus the critical habitat parks. cuckoo. Due to the continued designation on areas with relatively Our Response: We fully support occupancy and breeding of western large numbers and consistent riparian restoration activities such as yellow-billed cuckoo in the North Fork occupation within the timeframe we tamarisk removal and willow or of the Gunnison River and alignment of chose to determine occupancy (see cottonwood plantings, which benefit the the area with our conservation strategy, Selection Criteria and Methodology public as well as listed and non-listed we consider the areas identified as Used to Determine Critical Habitat). native species. The designation of critical habitat to be appropriate and Comment 83: Multiple commenters critical habitat in Unit 68 would not essential to the conservation of the were in favor of conservation efforts to prevent further restoration activities species. In regard to the commenter’s protect the western yellow-billed along the Colorado riverfront area; request to exclude areas from the critical cuckoo. However, one commenter rather, it could help support continued habitat designation, the commenters expressed concern that critical habitat restoration actions and potential provided no specific information or designation would burden State additional funding. Additionally, since reasoned rationale as described in our regulatory agencies and restrict the time of initial proposed critical preamble discussion in our Policy on conservation activities on private lands. habitat in 2014 (79 FR 48548), much of Exclusions (81 FR 7226) and as Our Response: We are statutorily the Riverfront Trail and associated requested in our revised proposed rule required to designate critical habitat for development has already been designating critical habitat for the a federally listed species if it is completed. We understand the western yellow-billed cuckoo (85 FR determined to be both prudent and perception that there could be economic 11502) to support requests for determinable. We made a determination and recreation opportunities affected by exclusion. For the Service to evaluate an that critical habitat was both prudent the designation. For Federal projects in exclusion request, the commenter must and determinable in our proposed and the area, consultation with the Service provide supporting information revised proposed critical habitat rules is already required because it is within concerning how their activities would (79 FR 48548 and 85 FR 11458, the known range of the species. be limited or curtailed by the respectively). The designation of critical Designating critical habitat in the area designation. Therefore, we did not

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exclude any areas in Delta County, critical habitat. The analysis describes Units 68 and 69 be avoided pending Colorado. the primary cost associated with verification of appropriate management Comment 88: A commenter expressed designating critical habitat from plans for those areas. concern that critical habitat would affect additional analysis in section 7 Our Response: In our proposed and 9 outfall locations in natural drainages, consultation for effects to critical habitat this final rule, we did not identify or 19 open (un-piped) and 3 piped and adverse modification. The exclude areas from Unit 69 (CO–2) historical outfalls to the Colorado River, rangewide administrative burden because no information was provided to as well as municipal drainage facilities. resulting from the designation was support their request for conducting an The risk of flooding increases if they are found to be not significant and no single analysis. We have considered the not able to clear drainages. area identified as critical habitat was management plans for Colorado State Our Response: Designation of critical found to have disproportionate cost lands in Unit 68 and find that the habitat would only affect actions funded requiring additional analysis. Orchards benefits of excluding these areas or permitted through a Federal nexus. In and vineyards do not contain the outweigh the benefits of designation of such circumstance, the Federal agency physical or biological features essential critical habitat in these areas and that would need to consult with the Service to the conservation of the species and the exclusion will not lead to the and conduct an adverse modification are therefore not considered critical extinction of the species. As a result, we analysis if the proposed action would habitat, even if those areas are within have excluded certain areas from Unit impact designated critical habitat. the critical habitat boundary. 68 from the final designation. See Federal agencies are already required to Comment 91: Commenters Exclusions, Private or Other Non- consult with the Service if their actions recommended that critical habitat be Federal Conservation Plans or would affect the species. designated in southeastern Colorado on Agreements and Partnerships, in Comment 89: One group commented the Upper Rio Grande and Conejos General. that critical habitat should also be Rivers because the San Luis Valley Comment 94: In 2014, one commenter designated on the Gunnison River, Habitat Conservation Plan seems more stated that there is not enough south of Delta, Colorado; along the protective of southwestern willow information about proposed critical Colorado River through McInnis Canyon flycatcher and yellow-billed cuckoo habitat sites in Colorado (previously National Conservation Area to the Utah critical habitat should be designated identified as Units 54 and Units 57–60) State line; side drainages as well as independent of any other species’ to exclude or include them in critical main rivers; and areas that could critical habitat. habitat and that the Service did not fully become habitat in the future if managed Our Response: We revised critical consider a peer-reviewer’s better. Similarly, another commenter habitat units for the 2020 revised recommendations of three additional stated that areas on Plateau Creek proposed rule in accordance with the sites to consider: Collbran/Plateau City between Collbran and Plateau Valley, conservation strategy described within (Plateau Creek in Mesa County), and areas in Hotchkiss and Paonia that the document. In addition to the sections of the La Plata River (La Plata require restoration should be included protections to western yellow-billed County, Colorado), and sections of the in the designation. cuckoo from the HCP, the previously Piedra River (La Plata County, Our Response: Although western proposed units did not meet the Colorado), where birds have been yellow-billed cuckoo may migrate conditions of our conservation strategy detected on private property during the through the habitat in areas along the to designate critical habitat, because the breeding season but suitable habitat is Gunnison River and the Colorado River number of breeding pairs was low or dependent on irrigation ditches for west of Grand Junction, we focused our because breeding was intermittent. water. critical habitat designation on areas Comment 92: Multiple commenters Our Response: We revised critical occupied at the time of listing that recommended that the Service designate habitat units for the 2020 revised provide the patch sizes generally critical habitat in unoccupied areas to proposed rule in accordance with the preferred by western yellow-billed allow expansion of the current occupied conservation strategy described within cuckoo for breeding, and avoided range. the document. We have considered and selection of small and isolated riparian Our Response: We have considered applied the best available scientific and areas (85 FR 11464). We identified and applied the best scientific and commercial information regarding critical habitat in areas that are commercial information available habitat for the western yellow-billed currently used for breeding and contain regarding designation of critical habitat cuckoo, including all peer-reviewed and the PBFs essential to the conservation of for the western yellow-billed cuckoo. public comments. We reviewed all areas the species. We have determined that We have determined that we can better identified by the commenter as to these areas are sufficient and meet our conserve the species by focusing on whether they met our goals identified in requirements of designating critical occupied breeding areas that have been our conservation strategy and criteria for habitat for the species and did not look and are consistently used by the species. designation. We have determined that at areas that didn’t meet our breeding As a result we developed a conservation the additional areas identified by the criteria or needed restoration and were strategy that identified certain areas peer reviewer did not meet our unoccupied such as those identified by throughout the species range. The extent designation criteria due to lack of the commenters. and distribution of these areas along breeding information and suitable Comment 90: Mesa County, Colorado, main-stem rivers throughout the habitat requiring additional commented that the economic analysis species’ breeding range and the management. is not specific to Mesa County and the migratory behavior of the western Comment 95: One organization Grand Valley and is concerned over yellow-billed cuckoo allows these areas requested the Service provide details on restricted land use, especially in to naturally be used as pathways and the ‘‘other’’ category of Table 1 (85 FR Palisade where there are many stop-over habitat. As a result, the 11477–11478) for Units 68 and 69 in vineyards and orchards. designation of unoccupied areas is not Colorado. Our Response: The draft economic necessary or justified. Our Response: The ‘‘other’’ category analysis describes the estimation of Comment 93: Two commenters contains all property owned by economic impacts from designating requested that proposed exclusions in counties, cities, private landowners, or

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unknown ownership. Table 1 has been discernible effect on the quantity, Comment 99: One group stated that updated with new parcel information quality, or value of the PBFs of the area the western yellow-billed cuckoo appear for Unit 68 with 2,766 total ac (1,119 ha) identified as critical habitat for the only sporadically in Idaho and do not in the ‘‘other’’ category. This includes western yellow-billed cuckoo since currently exist there. They state that the approximately 500 ac (202 ha) owned by these areas support western yellow- species has not suffered from loss of cities, 106 ac (43 ha) owned by Mesa billed cuckoo habitat and breeding with habitat and that the designation of County, approximately 14 ac (6 ha) the existing management in place. That critical habitat will not increase western owned by a nongovernmental is, when evaluating the effects on yellow-billed cuckoo populations. They organization, 1,302 ac (527 ha) privately critical habitat, we consider ongoing further state that the Service has not owned, and 844 ac (342 ha) with water management operations within considered the negative impact on the unknown ownership. Unit 69 has not the designated units that are not within economy and that the designation of been changed, and ownership is also the agencies’ discretion to modify to be critical habitat will be extremely identified in Table 1. The implications part of the baseline of an effects detrimental to private and locally of critical habitat designation on lands analysis. Reclamation is mandated owned property. in the ‘‘other’’ category do not differ through the Flood Control Act of 1944 Our Response: The current range of amongst each other, as effects to critical [16 U.S.C. 460d (and various sections of the western yellow-billed cuckoo habitat would need to be considered titles 33 and 43 U.S. Code)] to manage includes portions of or the entire States only in the case of a Federal nexus. water operations on the South Fork and of Arizona, California, Colorado, Idaho, Comment 96: One commenter stated the Henry’s Fork of the Snake River. Montana, Nevada, New Mexico, Oregon, that the Service should consider the Therefore, the management and flows of Texas, Utah, and Washington as well as economic benefits of wildlife and bird the South Fork and the Henrys Fork of into southwestern British Columbia, watching and recreation in riparian the Snake River are not expected to be Canada. However, the breeding range for habitats. impacted by the designation of critical the species has contracted with a Our Response: In our economic habitat. As a result, we have revised the northern extent in southeastern Idaho. analysis, data limitations prevented us actions that may require special Western yellow-billed cuckoos from quantifying such additional management considerations from Table consistently use habitat along the South economic benefits. Quantification of 2 of this final rule. Fork Snake River, Henry’s Fork Snake these benefits would require primary Comment 98: Several commenters River, and the mainstem Snake River research and the generation of recommended in 2014 and 2020 that the (Reynolds and Hinckley 2005; IDFG substantial amounts of new data, which Service extend Unit 67 (ID–3) to include 2013). As identified in our final listing is beyond the scope of our analysis and additional areas upstream of the unit rule, one of the reasons for decline of Executive Order 12866. Although the and to add more cottonwood forest the breeding range for the species has information regarding economic benefits lands managed by the BLM and the been habitat loss. We are required to is important, we cannot determine those USFS along the Henry’s Fork and South designate critical habitat for threatened benefits at this time. Fork of the Snake River upstream to and endangered species under the Act. Comment 97: The group commented Palisades Dam. Further, the commenter Several benefits of critical habitat are on Unit 67 (ID–3) of the revised suggested including the USFS and BLM that it requires Federal agencies to proposed rule and suggested revisions island complex of habitat in Swan consult with the Service to avoid to the unit description and Valley, Idaho, where western yellow- destruction or adverse modification of recommended deleting several threats billed cuckoos were detected by Idaho critical habitat and identifies areas to regarding water delivery and hydrologic Department of Fish and Game survey focus conservation. Increasing functioning identified in Table 2 crews in 2011. One of the commenters populations may or may not be an (Threats to Habitat and Potential Special suggested including the Boise River outcome of a designation of critical Management Considerations). The from eastern Boise to the Snake River. habitat, but are not a requirement for commenter stated that water Our Response: We reviewed the designation. management actions and existing information regarding western yellow- The designation of critical habitat hydrology are sufficient to support the billed cuckoo occurrence and habitat does not authorize the Service to critical habitat designation on the upstream of the area described in our regulate private actions on private lands Henry’s Fork River and South Fork of 2014 proposed critical habitat and or to confiscate private property as a the Snake River. The Henry’s Fork revised Unit 67 (ID–3) as described in result of a critical habitat designation. Foundation provided information our 2020 revised proposed critical Designation of critical habitat does not regarding a hydrologic study being habitat designation to include the affect land ownership or establish any conducted by Utah State University additional areas as requested. closures or restrictions on use of or through funding from a partnership of The Swan Valley locations access to the designated areas. Critical several Federal, State, and other recommended for inclusion constitute habitat designation also does not stakeholders of existing water habitat supportive of the western establish specific land management management in the Snake River basin to yellow-billed cuckoo; however, they are standards or prescriptions, although support its request. isolated from other areas of habitat, and Federal agencies are prohibited from Our Response: As a result of the observation record indicates it is carrying out, funding, or authorizing comments, we revised the unit only sporadically occupied. The Boise actions that would destroy or adversely description for Unit 67. In the River is considered to be periodically modify critical habitat. We conducted Application of the ‘‘Adverse used by western yellow-billed cuckoo as an economic analysis on the revised Modification’’ Standard section, we stop-over habitat, but also does not have proposed critical habitat designation. address existing water management consistent use associated with breeding The economic analysis took into operations in place on riverine segments individuals of the species. As a result, consideration the incremental economic identified as critical habitat, unless we did not consider critical habitat in impacts above those associated with modified subsequent to this revised these areas based on our Conservation listing of the species as threatened designation, and state that these Strategy and criteria for designating under the Act. Because the species is operations are unlikely to have any critical habitat. listed, private and local land-owners

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would still be subject to section 7 (if habitat for the species (see Criteria Used Comment 103: In 2014 and 2020, one their actions require Federal funding or To Identify Critical Habitat commenter requested exclusion of the permitting) and section 10 under the (Conservation Strategy). U-Bar Ranch in New Mexico based on Act. Our economic analysis did take Comment 101: One private company the commenter’s Management Plan, into consideration ‘‘third party’’ commented that while it recognizes that which provides conservation to the requirements that may be implemented consultation would be required if a western yellow-billed cuckoo and its by local (State, county, or city entities) transmission line was rebuilt, ongoing habitat. as a result of the designation; however, operations and maintenance of Our Response: The Service commends the analysis did not identify these preexisting lines (rights-of-way areas) the longstanding monitoring and requirements as significant enough to be should be included in the baseline restoration efforts specifically along the identified as requiring additional review analysis. The company requested that U-Bar Ranch that have been undertaken or require the areas to be excluded American Falls Reservoir not be subject by the landowner. We have conducted under section 4(b)(2) for economic to consultation requirements, because an exclusion analysis and have reasons. the reservoir has been in operation since excluded U-Bar Ranch lands from this Comment 100: One group stated that 1927 and the effects of the action are final designation. See Exclusions Private neither current land management ongoing. or Other Non-Federal Conservation practices nor regulatory processes are in Our Response: Rights-of-way are Plans or Agreements and Partnerships, place to account for the decline of agreements that impose a status on the in General. habitat through the reduction of use of lands rather than describing the Comment 104: One commenter understory vegetation from grazing and condition of the land as humanmade expressed its support for efficient water management practices. The structures. Because actions taking place Federal water and power projects and would like the Service to further clarify commenter contends that the Service within rights-of-way areas may impact the riparian areas that were included or should recognize that understory the habitat conditions for the western combined into a single larger critical vegetation is equally important as yellow-billed cuckoo, consultation with habitat unit (as described in 85 FR overstory vegetation to suitable western the Service may be required. In the 11465). The commenter also commented yellow-billed cuckoo habitat. The group Application of the ‘‘Adverse that the commenter would like existing recommended: (1) Improving Modification’’ Standard section, we and future power lines within western management of livestock; (2) listing address that existing water management yellow-billed cuckoo critical habitat to western yellow-billed cuckoo as operations in place on riverine segments endangered; (3) prohibiting pesticide be excluded from the final critical identified as critical habitat, unless use in critical habitat units or extremely habitat designation. modified subsequent to this revised careful management; (4) including Our Response: As described in our designation, are unlikely to have any designated critical habitat units farther revised proposed rule (85 FR 11465), the discernible effect on the quantity, upstream and downstream of the areas of habitat that were included or quality, or value of the PBFs of the area proposed units; (5) including tributaries combined into a single larger unit identified as critical habitat. That is, with the basic habitat needs; (6) working depended on the extent of use of the when evaluating the effects on critical with all willing property owners to areas by western yellow-billed cuckoo, habitat, the Service considers mandated restore habitat to be more continuous; the relative amount of habitat gained if water management operations within and (7) designating unoccupied areas the multiple patches were included or that are strategically located along the designated units that are not within combined, the relationship of the area to migratory pathways to the units. the agencies’ discretion to modify to be the overall designation, and the ease or Our Response: In listing the western part of the baseline. See also our complexity of removing all nonhabitat yellow-billed cuckoo under the Act, we response to Comments 7 and 56 from the designation. Also western took into consideration land regarding rights-of-way. yellow-billed cuckoo habitat in ideal management and regulatory processes Comment 102: One commenter stated conditions is dynamic and requires that are already in place and that may in 2014 that the Service appears to be areas for regrowth. By including some protect its status, and we determined acting on insufficient knowledge of open areas, we take into consideration that the species may become which areas within Unit 52 (now Unit this opportunity for natural regrowth of endangered in the foreseeable future as 37: NM–6A and NM–6B) are occupied habitat. The suitability of individual a threatened species without measure to by the western yellow-billed cuckoo, patches within a unit may vary over alleviate the species’ threats. In our and proposes that further studies are time as far as abundance of occupancy revised proposed rule, we identified necessary to determine which specific or amount of PBFs present and would both overstory and understory habitat sites are appropriate for designation need to be evaluated on a case-by-case structure and components as physical or according to the comparative benefits basis and would adjust over time. biological features for the species. We criteria spelled out for determining In the event that powerline based our designation on our exclusion under section 4(b)(2) of the construction and/or maintenance result conservation strategy and developed Act. in adverse effects to the species and/or specific designation criteria to identify Our Response: Since 2014, formal critical habitat, consultation with the those areas essential to the conservation protocol surveys have been completed Service is expected to occur to provide of the species as critical habitat. The in the area of this Unit that is now exemptions to the prohibitions of extent of the units and whether to designated as critical habitat and further section 9 in the Act. As noted above, our identify unoccupied units were part of support our previous conclusion that Policy on Exclusions outlines the our analysis in considering which areas the area supports the occupancy of procedures we follow for considering meet the definition of essential for the western yellow-billed cuckoos by the and conducting exclusions (81 FR western yellow-billed cuckoo. The criteria specified in the Selection 7226). In this case, the commenter amount and extent of the designation Criteria and Methodology Used to provided general statements of its desire and limitation to occupied breeding Determine Critical Habitat section of the for rights-of-way to be excluded but did areas are appropriate and supported by 2020 revised proposed rule (85 FR not provide any additional information our rationale for determining critical 11458) and this final designation. or a reasoned rationale that would

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support the request for exclusion. In species are the same and management would significantly affect energy addition, any hardened structures (such and conservation of those areas would supplies, distribution, or use, because as buildings, aqueducts, runways, roads, benefit both species. However, the the areas identified as critical habitat are bridges, and other paved or hardened ecological niche and certain physical or along riparian corridors in mostly areas as a result of development) and biological features needed by the two remote areas with little energy supplies, the land on which they are located is species are different such as habitat distribution, or infrastructure. In areas not considered to be critical habitat. patch size and nest site selection. In where the western yellow-billed cuckoo Accordingly, the transmission towers addition, the range of the southwestern is present, Federal agencies are required are already not part of the designation. willow flycatcher does not include the to consult with our agency under However, the rights-of-way associated entire breeding range of the western section 7 of the ESA on activities they with the power transmission lines may yellow-billed cuckoo. As a result, if we fund, permit, or implement, which may contain vegetation and habitat relied only on critical habitat for the affect the species. Section 7(a)(1) of the containing the physical or biological southwestern willow flycatcher to ESA charges Federal agencies to aid in features essential to the conservation of provide protection for the western the conservation of listed species, and the western yellow-billed cuckoo. yellow-billed cuckoo, large areas of the section 7(a)(2) requires the agencies to Because no additional information was species’ breeding range would not be ensure that their activities are not likely provided to support the request for designated. to jeopardize the continued existence of exclusion, these areas are not excluded Comment 106: Several commenters listed species or adversely modify from the designation. stated that the proposed critical habitat designated critical habitats. In our Comment 105: Several commenters includes unsuitable, unoccupied economic analysis, we identified oil and stated that there are already habitat, and thus should not be included gas development as an activity and conservation plans and strategies as in our final critical habitat designation. considered the impact of critical habitat well as habitat protections for other Our Response: We based our on those activities. Because section 7 federally listed species overlapping with designation on the best scientific and consultation is already required for the revised proposed critical habitat commercial information available Federal projects that could impact unit(s). In addition, they state that including information on occupancy western yellow-billed cuckoo, the critical habitat is already designated for and use of areas we are considering as additional process necessary to avoid other species (such as the southwestern critical habitat. This included gathering, the destruction or adverse modification willow flycatcher) that fundamentally reviewing, and evaluating information of critical habitat would be a minor have the same habitat requirements from multiple sources including additional step in the existing (PBFs) as the western yellow-billed information from State wildlife consultation process. Therefore, cuckoo. Therefore, in the view of these agencies, State Natural Heritage economic impacts to oil and gas commenters, designation of critical databases, Cornell Lab of Ornithology development would be minimal as a habitat for the western yellow-billed (eBird data), researchers, result of this critical habitat designation. cuckoo is redundant and not necessary. nongovernment organizations, Comment 108: A commenter stated Our Response: As part of the listing universities, and consultants, as well as that western yellow-billed cuckoo process, we are required to designate information from our files. During our surveys are incomplete and that some critical habitat for species listed as process for proposing and finalizing this areas that should have been included in threatened or endangered under the Act. designation of critical habitat, we used our proposed critical habitat designation Although conservation measures may be a systematic approach to assess were incorrectly excluded. implemented for other species and potential critical habitat throughout the Our Response: The Service is required designated critical habitat for multiple designation that included an analysis of to use the best scientific or commercial species may overlap, each species’ habitat that contained the physical or information available in determining critical habitat and conservation biological features that are essential to critical habitat. We accomplish this by requirements can be different. Critical the conservation of the species. gathering, reviewing, and evaluating habitat comprises specific areas Comment 107: Multiple commenters information from multiple sources prior occupied by that species and contains stated that oil and gas development will to designating critical habitat. the physical or biological features that be negatively impacted by designating Information, including surveys, used for are essential to the conservation of that critical habitat. One commenter stated the western yellow-billed cuckoo species. The focus of this designation is that the economic analysis fails to critical habitat analysis was obtained to identify and conserve the unique consider impacts to oil and gas from reports prepared by several entities habitat features of the western yellow- development. including the U.S. Geological Survey billed cuckoo. While additional Our Response: Under section 4(b)(2) (USGS), USFS, NPS, BLM, Reclamation, conservation plans and strategies for of the Act, economic and social impacts State wildlife agencies, State Natural other federally listed species may are considered in the process for Heritage databases, Cornell Lab of provide benefits to western yellow- designating critical habitat for species Ornithology (eBird data), researchers, billed cuckoo and its habitat, we base listed under the Act. Our economic nongovernmental organizations, our critical habitat designations on what analysis did not find that oil and gas universities, and consultants, as well as is uniquely necessary for the western development would be significantly information from our files. Because we yellow-billed cuckoo and its specific impacted by the designation of critical listed the species as threatened in 2014, habitat requirements. In addition, if the habitat. Executive Order 13211 (Actions we used information up to that point in other species protected by any Concerning Regulations That determining occupancy for determining preexisting conservation programs were Significantly Affect Energy Supply, whether the areas considered as critical to be delisted, this could eliminate Distribution, or Use) takes into account habitat would fall under section protections for the western yellow- effects to oil and gas development that 3(5)(A)(i) as being occupied at the time billed cuckoo and its habitat. In some could potentially result from of listing or section 3(5)(A)(ii) as being cases, such as with the western yellow- designating critical habitat. We do not occupied after the time of listing. We billed cuckoo and southwestern willow expect that a critical habitat designation also reviewed records subsequent to flycatcher, the areas used by the two for the western yellow-billed cuckoo listing (2015–2019) to confirm

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occupancy of the areas being areas from critical habitat designation information to support the requested designated. for the western yellow-billed cuckoo. exclusion. Although we have excluded Comment 109: A commenter stated Our Response: HCPs are typically some Federal lands from the that the Service is considering required as part of an application for an designation, we find that excluding all designating western yellow-billed incidental take permit through section Federal lands from the designation for cuckoo critical habitat in every place 10 of the Act for actions that would the western yellow-billed cuckoo is not where the species occurs, instead of occur on private lands and would appropriate. limiting it to just the locations that are impact federally listed species. We Comment 113: Several commenters necessary for recovery. conduct internal section 7 consultation claim that the Service did not Our Response: We are not designating on issuance of the incidental take adequately consider economic impacts critical habitat in every place where the permit under section 10. These plans as a result of designating critical habitat species occurs. Part of our conservation must include how impacts would be for the western yellow-billed cuckoo, strategy and criteria for designating minimized or mitigated to the maximum and another commenter stated that critical habitat for the western yellow- extent practicable, and therefore provide agricultural operations will be billed cuckoo were intended to focus a level of protection for listed species. negatively impacted by designating the designation on breeding areas larger In excluding HCPs, we conduct a critical habitat for the western yellow- than 200 ac (81 ha) in extent. The balancing analysis and compare the billed cuckoo. western yellow-billed cuckoo still benefits of excluding areas verses the Our Response: We developed an occurs in areas throughout its historical benefits of including areas as critical economic analysis of the incremental range from Texas to south-western habitat. For exclusions under section effects of designating critical habitat and British Columbia, Canada. We did not 4(b)(2) of the Act, the Secretary has made the document available, along designate critical habitat in Nevada, broad discretion on excluding areas with our analysis and findings, in Oregon, or Washington or in other areas from critical habitat. See Exclusions connection with publishing our in States where, although there is Private or Other Non-Federal proposed rule and revised proposed rule confirmed breeding, the areas are not Conservation Plans Related to Permits (see IEc 2019 entire; IEc 2020, entire). part of our conservation strategy. Under Section 10 of the Act for a Our analysis took into consideration discussion of the HCPs being excluded Comment 110: A commenter stated those activities within the critical and the balancing analysis as well as that alternate survey methods should habitat areas. The commenter did not our rationale for exclusions. provide alternative information or data have been used to identify occupied and Comment 112: One commenter stated to suggest our economic analysis and suitable habitat for the western yellow- that we should exclude areas that are review was insufficient but point to billed cuckoo. managed by Federal agencies from Our Response: We recognize that due critical habitat designation for western costs that may be part of the species’ to the reclusive nature of the western yellow-billed cuckoo. listing and not to those actions solely as yellow-billed cuckoo, the remoteness of Our Response: Federal agencies are a result of the designation of critical some areas it occupies, the difficulty in required to conserve endangered and habitat. conducting surveys, and inconsistent threatened species and utilize their When we mapped the boundaries for survey methodology, the majority of the authorities to further the purposes of the the proposed critical habitat, we species’ range has not been surveyed on Act. Critical habitat is a mechanism avoided identifying agricultural lands a regular basis or may not have under the Act that requires that actions within the proposed designation comparable survey data to give an that Federal agencies conduct, permit, because these lands generally do not absolute determination of population or fund not adversely modify the areas provide the physical or biological distribution and occupancy. However, identified as critical habitat for an features that are essential to the despite these survey challenges, key endangered or threatened species. As a conservation of the western yellow- areas throughout the western DPS have result, Federal agencies are in a position billed cuckoo. In addition, any been surveyed more consistently and to uniquely contribute to sensitive agricultural lands included within the give some indication of persistence and species management and conservation. boundary of the proposed designation site fidelity. Therefore, we based our Wholesale exclusion of Federal lands or would likely not be considered critical analysis of occupancy on detection areas managed by Federal agencies habitat because these lands do not records starting in 1998 and ending in would remove the intended contain the physical or biological 2014, when we listed the western conservation components intended features necessary for yellow-billed yellow-billed cuckoo as a threatened under the Act. However, under section cuckoo habitat. In our evaluation of the species. The 1998 to 2014 timeframe 4(b)(2) of the Act, the Secretary may economic impacts that may result from was chosen because it includes the last exclude Federal lands in certain the proposed designation of critical statewide western yellow-billed cuckoo circumstances from designation if the habitat for the western yellow-billed surveys in areas where the majority of benefits of exclusion outweigh the cuckoo (IEc 2019, entire; IEc 2020, individuals within the DPS’s range benefits of inclusion and exclusion will entire), we identified probable occurs and represents the best available not lead to the species extinction. As incremental economic impacts information on long-term occupancy. noted above, consideration of possible associated with agriculture and found For the 2020 revised proposed rule, we exclusions from critical habitat are in that the critical habitat designation for proposed additional units we consider the Service’s discretion, but we have the western yellow-billed cuckoo would to have been occupied at the time of indicated that a proponent should not significantly affect agricultural listing using new data received through provide information or a reasoned operations. the 2017 breeding season. To further rationale (81 FR 7226) and we Comment 114: Multiple commenters support designation of these units, we specifically solicited such information requested that the economic analysis used additional occupancy or nesting in our revised proposed designation of follow the Tenth Circuit’s requirement data up until the 2020 breeding season. critical habitat for the western yellow- to adopt a ‘‘cumulative’’ or ‘‘co- Comment 111: A commenter stated billed cuckoo (85 FR at 11502) In this extensive’’ approach to quantifying that HCPs should not be used to exclude case, the commenter has not provided impacts.

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Our Response: Because the primary regulatory delays; and other economic costs are borne by the Service and purpose of the economic analysis is to effects expected to result from the Federal action agencies. facilitate the mandatory consideration of designation of critical habitat. Comment 118: One commenter the economic impact of the designation Our Response: These comments do expressed concern about the assumption of critical habitat, to inform the not identify specific data sources or used in the economic analysis that discretionary section 4(b)(2) exclusion assumptions used in the economic incremental effects will be minimal in analysis, and to determine compliance analysis that may be inaccurate. The areas currently protected for the with relevant statutes and Executive comments also do not provide new endangered southwestern willow orders, the economic analysis should information that could be used to revise flycatcher. The commenter noted that, if focus on the incremental impact of the the economic analysis. Section 3 of the the southwestern willow flycatcher designation. The economic analysis of economic analysis outlines the recovers before the western yellow- the designation of critical habitat for the substantial baseline protections billed cuckoo, those protections would western yellow-billed cuckoo follows currently afforded the western yellow- disappear. For this reason, the this approach. billed cuckoo throughout the proposed commenter requested that the Service The Service acknowledges that designation. These baseline protections not exclude areas from the final significant debate has occurred result from the listing of the western designation of critical habitat for the regarding whether assessing the impact yellow-billed cuckoo under the Act and western yellow-billed cuckoo based on of critical habitat designations using the the presence of the species in all the presence of protections for the incremental approach is appropriate, proposed critical habitat units, as well southwestern willow flycatcher. with several courts issuing divergent as overlap with habitat of other, similar Our Response: Section 3 of the opinions. Most recently, the Ninth listed species and designated critical economic analysis describes several Circuit concluded that the incremental habitat. As a result of these protections, baseline protections afforded the approach is appropriate (Home Builders the economic analysis concludes that western yellow-billed cuckoo in support Association of Northern California v. incremental impacts associated with of the conclusion that incremental costs associated with section 7 consultations United States Fish and Wildlife Service, section 7 consultations for the western are likely limited to administrative 616 F.3d 983 (9th Cir. 2010); Arizona yellow-billed cuckoo are likely limited costs. Of these baseline protections, the Cattle Growers v. Salazar, 606 F.3d 1160 to additional administrative effort. The primary protection is the concurrent (9th Cir. 2010)). Subsequently, on analysis forecasts future section 7 listing of the western yellow-billed August 28, 2013, the Service revised its consultation activity based on cuckoo under the Act. Because all approach to conducting impact analyses consultations for the western yellow- proposed critical habitat units for the for designations of critical habitat, billed cuckoo that have occurred since western yellow-billed cuckoo are specifying that the incremental its listing in 2014. Using these historical approach should be used (78 FR 53062). considered occupied by the species, all consultation rates and applying Comment 115: One commenter stated projects with a Federal nexus will be estimated consultation costs presented that the economic analysis for this subject to section 7 requirements action should not use the economic in Exhibit 3 of the analysis, we expect regardless of whether critical habitat is analysis for the designation of critical that the additional administrative costs designated. In addition, we expect that, habitat for the southwestern willow incurred by critical habitat designation except in cases that cannot be predicted flycatcher as the basis for its estimates. will not exceed $74,000 in a given year. at this time, project modifications The commenter stated that the Comment 117: Multiple commenters recommended to avoid adverse southwestern willow flycatcher analysis objected to the screening approach modification of western yellow-billed failed to include significant cost applied in the economic analysis. In cuckoo habitat will be the same as those elements, including registration of particular, one commenter noted that needed to avoid jeopardy to the species. pesticides under the Federal Insecticide, the proposed critical habitat would span As a result, the section 7-related costs of Fungicide, and Rodenticide Act (FIFRA) nine geographically diverse States, and designating critical habitat for the and costs to water management and use. requested that the Service consider western yellow-billed cuckoo are likely Our Response: The revised screening impacts to each local economy to be limited to additional analysis for the proposed critical habitat separately rather than grouping these administrative effort to consider adverse designation does not use the costs diverse regions into a single analysis. modification in consultation. This projected in the southwestern willow Our Response: The primary purpose conclusion would not change if the flycatcher economic analysis to inform of the economic analysis is to facilitate protections currently afforded the its estimated costs. Instead, the the mandatory consideration of the southwestern willow flycatcher were economic analysis for the western economic impact of the designation of removed due to recovery of the yellow-billed cuckoo relies on the critical habitat, to inform the southwestern willow flycatcher. consultation history for the western discretionary section 4(b)(2) exclusion Although the specific habitat yellow-billed cuckoo since its listing as analysis, and to determine compliance characteristics and ecological niche a threatened species in 2014, compiled with relevant statutes and Executive occupied by the southwestern willow from the Service’s Tracking and orders. To support these considerations, flycatcher and western yellow-billed Integrated Logging System (TAILS) the economic analysis estimates costs at cuckoo are different, implementing database. Reference to the southwestern the level of individual critical habitat conservation actions in the areas where willow flycatcher is made simply with units (see Exhibit A–2). The magnitude they co-occur can be managed together. regard to identifying existing baseline of anticipated incremental section 7 Numerous plans are in place for the regulatory protections that overlap the costs, based on historical consultation southwestern willow flycatcher because geographic areas proposed for data for the western yellow-billed of its earlier listing (1995) compared designation in this rulemaking. cuckoo following its listing in 2014, is with the listing of the western yellow- Comment 116: Multiple commenters unlikely to exceed $74,000 in a given billed cuckoo (2014). We have been expressed concern that the economic year. These costs are likely to be small working with entities with southwestern analysis generally understates the relative to the economies of the willow flycatcher management plans to direct, indirect, and induced costs; communities, and the majority of these update their plans to specifically

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include the western yellow-billed 1,000-unit housing development is adversely affect in a material way the cuckoo. Should the southwestern planned and that critical habitat economy, a sector of the economy, willow flycatcher be delisted, we are requires land set-asides, reducing the productivity, competition, jobs, the certain that individuals with total number of homes that can be built environment, public health or safety, or southwestern willow flycatcher to 900. It uses hypothetical data about State, local, or tribal governments or management plans would continue to the value of those homes and resulting communities.’’ The commenter stated provide conservation for the western changes in prices to estimate impacts. that meeting either of these criteria can yellow-billed cuckoo and excluding Aside from the fact that this example is deem an action significant. The these areas would most likely further based on stylized information, rather commenter then requests that, as a incentivize these efforts. than actual data, the conditions of the result of the magnitude of possible Comment 119: One commenter example are not relevant to the western impacts of public perception described questioned the per-consultation yellow-billed cuckoo. As described in in the economic analysis, this incremental administrative costs used in the economic analysis, land set-asides rulemaking be considered a significant the economic analysis. The commenter required through section 7 consultation action. suggested that the economic analysis or as a result of the implementation of Our Response: The revised proposed determine administrative costs on a State laws are unlikely to result solely rule and this final designation was project-by-project basis. from the designation of critical habitat, identified by the Office of Information Our Response: The economic analysis given the western yellow-billed and Regulatory Affairs (OIRA) to be a relies on the best available information cuckoo’s status as a listed species and significant regulatory action (see on administrative costs. The costs the presence of other listed species and Required Determinations). However, we presented in Exhibit 3 of the economic critical habitat designations. have determined that the economic analysis were developed based on data Comment 121: Multiple commenters costs of designating critical habitat for gathered from three Service field offices stated that a regulatory flexibility the western yellow-billed cuckoo are (including a review of consultation analysis is required. One commenter likely to be limited to additional records and interviews with field office expressed particular concern that the administrative effort to consider adverse staff); telephone interviews with action proposed designation will affect modification in consultation, and are agency staff (e.g., BLM, USFS, Corps); operations on farms and ranches in the unlikely to exceed $74,000 in a given and telephone interviews with private State of New Mexico. The commenter year. In addition, the analysis consultants who perform work in noted that these farms and ranches are recognizes that the designation of support of permittees. In the case of typically run by families and are, critical habitat may cause developers or Service and Federal agency contacts, we therefore, small businesses. landowners to perceive that private determined the typical level of effort Our Response: Under the Regulatory lands will be subject to use restrictions required to complete several different Flexibility Act, Federal agencies are or litigation from third parties, resulting types of consultations (i.e., hours or required to evaluate only the potential in costs. Data limitations prevent the days of time), as well as the typical incremental impacts of a rulemaking on quantification of the possible Government Service (GS) level of the directly regulated entities. The incremental reduction in property staff member performing this work. In regulatory mechanism through which values. However, data on current land the case of private consultants, we critical habitat protections are realized values suggest that even if such costs interviewed representatives of is section 7 of the Act, which requires occur, the rule is unlikely to meet the consulting firms to determine the Federal agencies, in consultation with threshold for an economically typical cost charged to clients for these the Service, to ensure that any action significant rule, with regard to costs, efforts (e.g., biological survey, authorized, funded, or carried by the under E.O. 12866. In sum, the economic preparation of materials to support a Agency is not likely to adversely modify analysis finds that the combined total of Biological Assessment). The model is critical habitat. Therefore, only Federal section 7 and possible perception- periodically updated with new action agencies are directly subject to related effects is unlikely to exceed the information received in the course of the specific regulatory requirement threshold for an economically data collection efforts supporting (avoiding destruction and adverse significant rulemaking, as specified by economic analyses and public comment modification) imposed by critical E.O. 12866. on more recent critical habitat rules. In habitat designation; family farms and Comment 123: One commenter stated addition, the GS rates are updated ranches are not Federal action agencies that the Service should supply a annually. The economic analysis relies and thus are not directly regulated by Statement of Energy Effects due to the on this cost model because estimating this designation. Under these potential for critical habitat designation incremental administrative costs on a circumstances, it is the Service’s to affect permitting, operations, and project-by-project basis would require position that only Federal action maintenance of facilities such as the the collection of a significant amount of agencies will be directly regulated by Hayden Power Plant, the Craig Power new data that is beyond the scope of the this designation. Therefore, because Plant, and other electric transmission analysis. Federal agencies are not small entities, facilities. Comment 120: One commenter cited the Service certifies that the proposed Our Response: Executive Order 13211 a 2003 article by Dr. David Sunding critical habitat rule will not have a (Actions Concerning Regulations That estimating that total economic losses significant economic impact on a Significantly Affect Energy Supply, from critical habitat designations could substantial number of small entities (see Distribution, or Use) requires agencies reach $1 million per acre of habitat Required Determinations). to prepare Statements of Energy Effects conserved. Comment 122: One commenter stated when undertaking certain actions. The Our Response: This impact estimate that the economic analysis misinterprets U.S. Office of Management and Budget comes from a stylized example, using a Executive Order 12866. The commenter (OMB) has provided guidance for hypothetical scenario, included in the noted that under Executive Order implementing this Executive order that article to demonstrate the types of costs 12866, a significant regulatory action is outlines nine outcomes that may that might result from critical habitat one that may ‘‘have an annual effect on constitute ‘‘a significant adverse effect’’ designations. The example assumes a the economy of $100 million or more or when compared to not taking the

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regulatory action under consideration. of critical habitat. These commenters particular, one commenter requested See OMB Memorandum 01–27, stated that the benefits of critical habitat that the economic analysis disaggregate Guidance for Implementing E.O. 13211 must be weighed against the economic costs to taxable lands and non-taxable (July 13, 2001) (M–01–27), https:// costs of the designation. One commenter lands owned by local governments. www.whitehouse.gov/wp-content/ estimated that wildlife watchers Our Response: Section 7 of the Act uploads/2017/11/2001-M-01-27- contribute $24 million per year to the does not prohibit the use or sale of land Guidance-for-Implementing-E.O.- local economy along the San Pedro designated as critical habitat. If, during 13211.pdf. These outcomes include, for River in Arizona, and another section 7 consultation, the Service finds example, reductions in electricity commenter cited a survey showing that that the proposed action is likely to production in excess of 1 billion the total economic effect associated with adversely modify critical habitat, kilowatt-hours per year or in excess of wildlife-watching activities in 2011 was Federal regulation and the Section 7 500 megawatts of installed capacity, or $1.4 billion. Consultation Handbook encourage the increases in the cost of energy Our Response: Section 5 of the Service to identify reasonable and production or distribution in excess of economic analysis explains that the prudent alternatives that can be one percent. The economic analysis primary intended benefit of critical implemented in a manner consistent finds that the incremental costs of habitat designation for the western with the intended purpose of the action designating critical habitat for the yellow-billed cuckoo is to support the and that are economically and western yellow-billed cuckoo are likely species’ long-term conservation. Critical technically feasible (see 50 CFR to be limited to additional habitat designation may also generate 402.14(h)(3) and p. xxii of the Section administrative effort to consider adverse ancillary benefits by protecting the 7 Consultation Handbook, respectively). modification in consultation. Although primary constituent elements on which As described in the economic some energy facilities, such as those the species depends. As a result, analysis, the designation of critical identified by the commenter, are located management actions undertaken to habitat may cause developers or within the vicinity of the proposed conserve the species or its habitat may landowners to perceive that private designation, the proposed critical have coincident, positive social welfare lands will be subject to use restrictions habitat is predominantly in remote areas implications, such as increased or litigation from third parties, resulting with little energy supply infrastructure. recreational opportunities in a region or in costs. Data limitations prevent the The types of incremental administrative improved property values on nearby quantification of the possible costs described in the economic analysis parcels. incremental reduction in property are therefore unlikely to result in the As described in section 3 of the values. However, data on current land types of outcomes described by OMB in economic analysis, incremental changes values suggest that even if such costs Executive Order 13211. in land management are unlikely to occur, the rule is unlikely to meet the Comment 124: One commenter stated result from the designation of critical threshold for an economically that the economic analysis does not habitat. Furthermore, all of the proposed significant rule, with regard to costs, satisfy the requirements of President critical habitat is considered to be under E.O. 12866. Obama’s February 2012 memorandum occupied by the species, thus the listing Comment 127: One commenter noted to the Secretary of the Interior of the species also serves as that many development activities and (Presidential Memorandum for the encouragement for wildlife watchers to extractive uses that occur on private Secretary of the Interior—Proposed visit these areas. Therefore, in this lands require Clean Water Act permits Revised Habitat for the Spotted Owl: instance, critical habitat designation is and could therefore be subject to section Minimizing Regulatory Burdens unlikely to incrementally affect the 7 consultation for the western yellow- (February 28, 2012)). types of ancillary benefits described by billed cuckoo. Our Response: The President’s the commenters. Our Response: The Clean Water Act memorandum primarily provided Comment 126: Multiple commenters requires the Army Corps of Engineers to direction specific to the consideration of were concerned that the designation issue permits for certain activities, and economic impacts related to the may negatively affect residential and thus the Corps may serve as a Federal designation of critical habitat for the commercial development or otherwise nexus for many activities occurring in northern spotted owl. However, it also create economic uncertainty on private western yellow-billed cuckoo critical directed the Service to take prompt lands. For example, several commenters habitat. The economic analysis steps to revise its regulations such that stated that the economic analysis should considers the likelihood that activities the economic analysis would be consider potential costs associated with on private lands may require Corps completed and made available for the inability of private property owners permits in the development of its cost public comment at the time of to use or sell land on which critical estimates. It uses the actual, historical publication of the proposed rule to habitat is designated. According to one consultation rate for the western yellow- designate critical habitat. The Service commenter, development projects that billed cuckoo since its listing in 2014, issued a final rule revising these receive Federal funding or otherwise which includes consultations on regulations, as requested by the have a Federal nexus for consultation projects permitted by the Corps. President, on August 28, 2013 (78 FR could be delayed or cancelled. The Comment 128: Multiple commenters 53058). For the western yellow-billed commenter is specifically concerned expressed concern about economic cuckoo, the incremental effects about impacts in five units of non- impacts resulting from restrictions on memorandum and screening analysis Federal, private land included in the operations at Lake Isabella. According to (collectively, the ‘‘economic analysis’’) proposed designation. Other one commenter, Lake Isabella provides were made available for public commenters noted the importance of over $38 million annually in economic comment at the time of the proposed trust land sales and property tax benefits related to flood risk critical habitat rule. revenue for funding vital services such management, irrigation, hydropower, Comment 125: Multiple commenters as public education, urban and wildland and recreation. Another commenter expressed concern that the economic firefighting, health services, road provided a supplemental analysis of analysis does not sufficiently address maintenance, emergency medical economic impacts related to storage the potential benefits of the designation services, and police protection. In restrictions at Lake Isabella. This

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commenter stated that storage actions to avoid flooding or other and designated critical habitat. As a restrictions similar to those temporarily uncontrolled circumstances that may result of these protections, the economic implemented for the benefit of the cause loss of life or property are allowed analysis concludes that incremental southwestern willow flycatcher would according to the emergency consultation impacts associated with section 7 result in net economic losses of $5.4 procedures identified under section 7 of consultations for the western yellow- million to $14.7 million annually over the Act. Section 3 of the economic billed cuckoo are likely limited to the next 20 years. Another commenter analysis outlines the substantial additional administrative effort. estimated up to a 50 percent reduction baseline protections currently afforded Comment 131: Multiple commenters in use of the U.S. Forest Service’s the western yellow-billed cuckoo expressed concern that the economic nearby recreation sites, including 10 throughout the proposed designation. analysis did not sufficiently evaluate developed recreation sites, 3 marinas, These baseline protections result from potential impacts to livestock grazing and 7 boat launches, if the spillway the listing of the western yellow-billed and agricultural activities. Several height at Lake Isabella is not able to be cuckoo under the Act and the presence commenters requested that the maintained. of the species in all proposed critical economic analysis explicitly consider Our Response: The areas associated habitat units, as well as overlap with impacts to agricultural operations Lake Isabella and reservoir operations habitat of other, similar listed species (including water use and use of (reservoir area, flood easement areas) and designated critical habitat. As a pesticides), particularly those that were either not designated or floodplain result of these protections, the economic receive NRCS cost-share grants for areas removed from the designation (see analysis concludes that incremental projects such as bank stabilization, Comment 4). As a result, we do not impacts associated with section 7 irrigation, fencing, grazing management, anticipate requesting modifications to consultations for the western yellow- and weed control. The commenters reservoir operations due to the billed cuckoo are likely limited to expressed concern that the designation designation of critical habitat for the additional administrative effort. of critical habitat could lead to a western yellow-billed cuckoo and Comment 130: Multiple commenters reduction in grazing or agricultural provided our analysis that current expressed concern about the potential output, or a reduction in the number of spillway construction activities would impacts of the designation of critical NRCS projects undertaken. These not likely impact the species or require habitat on water management and water impacts could, in turn, affect local additional conservation. Section 3 of the rights. Commenters noted specific ranching communities and farm income. economic analysis outlines the concerns regarding the following Our Response: The Service does not substantial baseline protections impacts and their costs: Reallocation of anticipate requesting additional currently afforded the western yellow- water rights; restrictions on the use of modifications for livestock grazing or billed cuckoo throughout the proposed unadjudicated water; restrictions on agricultural operations, or cost-share designation. These baseline protections river management and reservoir projects undertaken with agencies such result from the listing of the western operations; restrictions on river and as NRCS, as a result of the designation yellow-billed cuckoo under the Act and habitat restoration projects; restrictions of critical habitat for the western the presence of the species in all on drainage operations; and the yellow-billed cuckoo. Section 3 of the proposed critical habitat units, as well implications of such restrictions for economic analysis outlines the as overlap with habitat of other, similar local water supply and local economies. substantial baseline protections listed species and designated critical Our Response: As discussed under the currently afforded the western yellow- habitat. As a result of these protections, Application of the ‘‘Adverse billed cuckoo throughout the proposed the economic analysis concludes that Modification’’ Standard below, we designation. These baseline protections incremental impacts associated with consider ongoing water management result from the listing of the western section 7 consultations for the western operations that are not within the yellow-billed cuckoo under the Act and yellow-billed cuckoo are likely limited agency’s discretion to modify to be part the presence of the species in all to additional administrative effort. of the baseline. All areas identified as proposed critical habitat units, as well Comment 129: Multiple commenters critical habitat where ongoing water as overlap with habitat of other, similar expressed concern that the designation operations exist contain the physical or listed species and designated critical could adversely affect flood control biological features necessary to provide habitat. As a result of these protections, activities. Commenters stated that for the essential habitat needs of the the economic analysis concludes that restrictions to farmers’ ability to manage western yellow-billed cuckoo; therefore, incremental impacts associated with levee vegetation and drainage we do not anticipate that the section 7 consultations for the western operations may hinder flood control, continuation of existing water yellow-billed cuckoo are likely limited resulting in economic and public safety management operations would to additional administrative effort. impacts. One commenter notes that the appreciably diminish the value or However, the Service recognizes the Army Corps of Engineers represents a quality of the critical habitat where they potential for landowners’ perceptions of likely nexus for these activities. occur and therefore ongoing water the Act to influence land use decisions, Our Response: We do not anticipate operations would not be significantly including decisions to participate in that flood control operations or modified as a result of the designation. Federal programs such as those management and maintenance of Section 3 of the economic analysis managed by NRCS. Several factors can existing flood control facilities and outlines the substantial baseline influence the magnitude of perception- levees would be significantly impacted protections currently afforded the related effects, including the by designation of critical habitat. Areas western yellow-billed cuckoo community’s experience with the Act that have flood and erosion control throughout the proposed designation. and understanding of the degree to structures such as levees and other These baseline protections result from which future section 7 consultations hardened features in place would not the listing of the western yellow-billed could delay or affect land use activities. contain the physical or biological cuckoo under the Act and the presence Information is not available to predict features and have been textually of the species in all proposed critical the impact of the designation of critical excluded from being considered as habitat units, as well as overlap with habitat on landowners’ decisions to critical habitat. In addition, emergency habitat of other, similar listed species pursue cost-share projects with NRCS in

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the future. However, incremental effects Comment 134: Multiple commenters severely limit public access to public due to the designation of critical habitat expressed concern about impacts to lands. for the western yellow-billed cuckoo are recreational activities and facilities, Our Response: Because the western likely to be reduced due to the species such as parks. In particular, one yellow-billed cuckoo is listed as being listed. commenter expressed concern that the threatened, and all the units are Comment 132: Multiple commenters designation could limit access to public occupied during the breeding season expressed concern that the designation lands. Other commenters expressed and habitat would need to be protected of critical habitat for the western concern that the designation could limit during the nonbreeding season, the yellow-billed cuckoo could affect water use, which would affect majority of actions necessary to agricultural operations through recreation. Another commenter stated conserve the species would be required restrictions on the use of irrigation that increased Federal oversight could based on the listing of the western facilities or pesticides, particularly hinder efforts to properly manage and yellow-billed cuckoo. For activities that those registered under FIFRA. maintain public safety at local parks. do have a Federal nexus for section 7 Our Response: The Service does not Another commenter expressed concern consultation, the Service does not anticipate requesting additional that the designation could restrict future anticipate conservation measures above modifications for agricultural trail developments. and beyond those needed for conserving operations, including irrigation or Our Response: Because the western the listed western yellow-billed cuckoo. pesticide use, as a result of the yellow-billed cuckoo is listed as Section 3 of the economic analysis designation of critical habitat for the threatened, all the units are occupied outlines the substantial baseline western yellow-billed cuckoo. Section 3 during the breeding season and habitat protections currently afforded the of the economic analysis outlines the would need to be protected during the western yellow-billed cuckoo substantial baseline protections nonbreeding season, the majority of throughout the proposed designation. currently afforded the western yellow- actions necessary to conserve the These baseline protections result from billed cuckoo throughout the proposed species would be required based on the the listing of the western yellow-billed designation. These baseline protections listing of the western yellow-billed cuckoo under the Act and the presence result from the listing of the western cuckoo. Exhibit A–1 of the economic of the species in all proposed critical yellow-billed cuckoo under the Act and analysis, which displays the planned habitat units, as well as overlap with the presence of the species in all projects assumed by the economic habitat of other, similar listed species analysis to require formal consultation, and designated critical habitat. As a proposed critical habitat units, as well includes multiple consultations for result of these protections, the economic as overlap with habitat of other, similar recreational activities. Activities at analysis concludes that incremental listed species and designated critical private or municipal recreational impacts associated with section 7 habitat. As a result of these protections, facilities, such as town parks, will only consultations for the western yellow- the economic analysis concludes that require section 7 consultation if those billed cuckoo are likely limited to incremental impacts associated with activities have a Federal nexus, such as additional administrative effort. section 7 consultations for the western Federal funding. Comment 136: Multiple commenters yellow-billed cuckoo are likely limited For activities that do have a Federal expressed concern about economic to additional administrative effort. nexus for section 7 consultation, the impacts to operations on military Comment 133: Multiple commenters Service does not anticipate conservation installations. In particular, one expressed concern that the designation measures above and beyond those commenter expressed concern that the of critical habitat could negatively affect needed for conserving the listed western designation could result in the closure mining activities, including gravel pit yellow-billed cuckoo. Section 3 of the or restriction of operations on two operations and copper mining in economic analysis outlines the military installations near Yuma, Arizona. substantial baseline protections Arizona. Multiple commenters Our Response: Because the western currently afforded the western yellow- expressed concern about impacts to Fort yellow-billed cuckoo is listed as billed cuckoo throughout the proposed Huachuca in Cochise County, Arizona, threatened and all the units are designation. These baseline protections noting that Fort Huachuca has an occupied during the breeding season result from the listing of the western approved integrated natural resources and habitat would need to be protected yellow-billed cuckoo under the Act and management plan (INRMP) that during the nonbreeding season, the the presence of the species in all provides conservation benefit to the majority of actions necessary to proposed critical habitat units, as well western yellow-billed cuckoo. Another conserve the species would be required as overlap with habitat of other, similar commenter expressed particular based on the listing of the western listed species and designated critical concern that the designation could yellow-billed cuckoo. As a result of the habitat. As a result of these protections, affect operations on Fort Huachuca’s species being listed, the economic the economic analysis concludes that Buffalo Soldier Electronic Testing analysis concludes that incremental incremental impacts associated with Range. impacts of critical habitat associated section 7 consultations for the western Our Response: No military lands or with section 7 consultations for mining yellow-billed cuckoo are likely limited training areas were included in the operations for the western yellow-billed to additional administrative effort. revised proposed rule or are included in cuckoo are likely limited to additional Comment 135: Multiple commenters this final designation. In the timeframe administrative effort of determining if expressed concern that the designation between the proposed rule and this final adverse modification may occur. of critical habitat could negatively affect designation, we had discussions with Because the commenters were making transportation activities and road the military installations at Yuma general statements and not specific to infrastructure. One commenter further Proving Grounds and Fort Huachuca individual mining projects or actions, noted that road maintenance is regarding the designation of critical we are unable to determine what necessary to maintain access to public habitat. Both military installations measures mining interests may need to and private lands; as a result, impacts requested exclusion from the undertake to avoid adverse modification stemming from the designation of designation based on national security if necessary. critical habitat have the potential to reasons. We reviewed the request of

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Yuma Proving Grounds and found that designated as critical habitat, there are occupied by the species, all projects exclusion was not necessary for the area no economic costs of re-initiation for with a Federal nexus will be required to requested by the Yuma Proving Grounds critical habitat. For the remaining areas, consult with the Service under section because the actions described by the section 3 of the economic analysis 7 of the Act regardless of whether installation (overflight of critical habitat forecasts future section 7 consultation critical habitat is designated. As a result, areas) would not physically impact activity associated with the proposed the designation of critical habitat for the habitat for the western yellow-billed designation based on the historical western yellow-billed cuckoo is cuckoo. Although the actions may consultation activity resulting from the unlikely to result in incremental delays require section 7 consultation to listing of the western yellow-billed to projects. consider the effects to western yellow- cuckoo in 2014. Exhibit A–2 presents Comment 139: Several commenters billed cuckoos, they would not require the resulting expected annual expressed concern that baseline consideration of adverse effects to consultation rates by unit. Importantly, protections for the western yellow- critical habitat as overflights would the analysis concludes that the billed cuckoo, including several existing have no habitat-based effects. In incremental costs resulting from the HCPs and the presence of southwestern addition, this area has been excluded designation of critical habitat are likely willow flycatcher critical habitat, do not based on the LCR MSCP (see to be limited to administrative costs of provide sufficient protection to the Exclusions, Private or Other Non- addressing critical habitat in western yellow-billed cuckoo and its Federal Conservation Plans Related to consultation, and are unlikely to exceed habitat. In particular, one commenter Permits Under Section 10 of the Act). the threshold for an economically disagreed with the assumption used in Fort Huachuca also requested significant rulemaking. To our the economic analysis that impacts have exclusion of critical habitat on areas knowledge, the USFS has yet to already occurred due to the listing of the outside the installation’s jurisdiction. complete its land management plan. western yellow-billed cuckoo or the The Fort suggested that the base’s Comment 138: Multiple commenters presence of other listed species. The groundwater may be impacted and expressed concern that the designation commenter stated that, if this result in reduced operational capacity in of critical habitat could negatively affect assumption were true, the designation the future. The Fort is aware of our habitat restoration projects, including of critical habitat for the western position that groundwater impacts will management programs designed to yellow-billed cuckoo would not be not occur as a result of the designation restore riparian corridors that have been warranted. In addition, one commenter of critical habitat and the designation overtaken by tamarisk. One commenter stated that environmental reviews for will not impact the Army’s military cites as an example an ongoing project livestock grazing on Federal allotments operations. We reviewed their request delayed by the presence of critical have been reduced since the proposed and determined that the installation did habitat for another listed species in the rule was published, weakening baseline not provide support for such an Upper San Pedro River watershed. protection. exclusion (see Exclusions, Exclusions Our Response: Because the western Our Response: Guidelines issued by Based on Impacts on National Security yellow-billed cuckoo is listed as OMB for the economic analysis of and Homeland Security). threatened, all the units are occupied regulations direct Federal agencies to Comment 137: One commenter during the breeding season, and habitat measure the costs and benefits of a expressed concern that the economic would need to be protected during the regulatory action against a baseline (i.e., analysis does not include costs to nonbreeding season, the majority of costs and benefits that are reinitiate consultations for several USFS actions necessary to conserve the ‘‘incremental’’ to the baseline). OMB projects and activities in proposed Unit species would be required based on the defines the baseline as the ‘‘best 64 (CA–2) at Lake Isabella, California. listing of the western yellow-billed assessment of the way the world would These consultations include travel cuckoo. For activities that do have a look absent the proposed action.’’ In the management in the Sequoia National Federal nexus for section 7 consultation, case of critical habitat designation for Forest, recreation management at Lake the Service does not anticipate the western yellow-billed cuckoo, the Isabella, and the Hafenfeld Livestock conservation measures above and baseline includes the listing of the Grazing Permit. In addition, the beyond those needed for conserving the species, as well as protections already commenter noted that a new listed western yellow-billed cuckoo. afforded its habitat as a result of the consultation would likely be required Section 3 of the economic analysis presence of other listed species, such as for any revisions to the Sequoia outlines the substantial baseline the southwestern willow flycatcher and National Forest Land Management Plan. protections currently afforded the the least Bell’s vireo. Because all A public comment period for the western yellow-billed cuckoo proposed critical habitat units for the Revised Draft Land Management Plan throughout the proposed designation. western yellow-billed cuckoo are for the Sequoia National Forest (USFS These baseline protections result from considered occupied by the species, all 2019, entire) closed in September 2019. the listing of the western yellow-billed projects with a Federal nexus will be Our Response: The Service cuckoo under the Act and the presence subject to section 7 requirements appreciates the new information of the species in all proposed critical regardless of whether critical habitat is provided by the commenter. As habitat units, as well as overlap with designated. In addition, the Service described in our revised proposed rule, habitat of other, similar listed species anticipates that, except in cases that we did not identify areas associated and designated critical habitat. As a cannot be predicted at this time, project with operations and management of result of these protections, the economic modifications recommended to avoid Lake Isabella as critical habitat. In analysis concludes that incremental adverse modification of western yellow- addition, we excluded two additional impacts associated with section 7 billed cuckoo habitat will likely be the areas that provide conservation for the consultations for the western yellow- same as those needed to avoid jeopardy western yellow-billed cuckoo (see billed cuckoo are likely limited to to the species. As a result, the economic Exclusions, Private or Other Non- additional administrative effort. analysis finds that the section 7-related Federal Conservation Plans or In addition, because all proposed costs of designating critical habitat for Agreements and Partnerships, in critical habitat units for the western the western yellow-billed cuckoo are General). Because these areas are not yellow-billed cuckoo are considered likely to be limited to additional

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administrative effort to consider adverse conservation measures above and economic analysis is flawed in its modification in consultation. beyond those needed for conserving the approach and needs to be re-done in Comment 140: Multiple commenters listed western yellow-billed cuckoo. order to consider the unanalyzed noted that many existing HCPs offer Section 3 of the economic analysis economic impacts to the city of Sierra baseline protection to the species. One outlines the substantial baseline Vista, AZ, due to COVID–19. Other commenter expressed concern that the protections currently afforded the commenters stated the Service failed to designation of critical habitat could western yellow-billed cuckoo analyze the economic impact on private impose substantial economic burden on throughout the proposed designation. landowners and the State of Arizona. landowners participating in such HCPs. These baseline protections result from Other commenters, including private In addition, the commenter expressed the listing of the western yellow-billed landowners, stated that the Service concern that the designation of critical cuckoo under the Act and the presence should consider the economic benefits habitat could create a disincentive for of the species in all proposed critical of birdwatching and recreational landowners to develop new HCPs and habitat units, as well as overlap with activities in riparian areas, and thus negatively affect regional habitat of other, similar listed species supported the enhanced property value conservation. and designated critical habitat. As a of areas with more conservation focus. Our Response: HCPs, particularly result of these protections, the economic Other commenters expressed concerns those developed at a regional scale, are analysis concludes that incremental that the economic analysis of the valuable tools for conservation. The impacts associated with section 7 proposed critical habitat designation has designation of critical habitat for the consultations for the western yellow- not yet been released for public review western yellow-billed cuckoo may, in billed cuckoo are likely limited to and comment, which is required before some cases, require re-initiation of past additional administrative effort. proposed critical habitat can be consultations, including consultations Comment 142: Several commenters finalized. on HCPs. However, as described in were in favor of conservation efforts to Our Response: For both the 2014 section 3 of the economic analysis, protect the western yellow-billed proposed critical habitat and the 2020 incremental costs associated with cuckoo, yet they expressed concern that revised proposed critical habitat, we section 7 consultations will likely be critical habitat designation would completed economic analyses to limited to additional administrative burden State regulatory agencies and examine the incremental costs costs following the designation of restrict ranching, farming, or other associated with the designation of critical habitat. Incremental impacts to activities on private lands. Other HCP participants beyond third-party commenters were concerned about the critical habitat. The economic analyses administrative costs of consultation are level of oversight the Service has in did not identify significant impacts, and not expected, and we have excluded designating critical habitat on privately the two local government entities did certain HCP areas from the final owned land. not provide economic information designation (see Exclusions, Private or Our Response: We are required to regarding any of the activities identified. Other Non-Federal Conservation Plans designate critical habitat for a federally These analyses were available to the Related to Permits Under Section 10 of listed species if it is determined to be public as part of the docket for each the Act). both prudent and determinable, as is the publication in the Federal Register. Comment 141: Multiple commenters case for the western yellow-billed Critical habitat does not restrict private expressed concern about potential cuckoo. We further note that we are landowner access to their property and impacts to utility operations. One currently under court order to finalize would only need to be considered if commenter expressed concern that the critical habitat for the western yellow- Federal agency funding or permitting for designation of critical habitat within billed cuckoo. an activity is needed. Because the areas transmission and distribution corridors In regard to State and private are considered occupied, the majority of could hinder maintenance and landowner burden, critical habitat costs are not associated with the operation activities. Such activities are designations do not constitute or create designation, but with listing of the required by the Federal Energy a regulatory burden by themselves, in species as threatened. If Federal funding Regulatory Commission (FERC) to terms of regulations on private is involved, the agency providing the maintain equipment integrity, mitigate landowners carrying out private funding is the party responsible for potential public safety hazards, and activities, but in certain areas they meeting obligations of consulting on comply with vegetation management might trigger additional State regulatory projects on private lands. We have standards. Multiple commenters noted reviews and other requirements. Our considered and applied the best that non-compliance can result in economic analysis did not find that available scientific and commercial penalties up to $1,000,000 per incident there would be significant impacts for information in determining the per day. Another commenter noted that third party entities (e.g., States private economic impacts associated with impacts to grid reliability represent a actions). When a third party action designating critical habitat. Section 5 of significant public health and safety, as requires Federal approval, permit, or is the economic analysis explains that the well as economic, concern. federally funded, the critical habitat primary intended benefit of critical Our Response: Because the western designation might impose a Federal habitat designation for the western yellow-billed cuckoo is listed as regulatory burden for private yellow-billed cuckoo is to support the threatened, all the units are occupied landowners, but consultation effort species’ long-term conservation. Critical during the breeding season and habitat concerning the critical habitat or species habitat designation may also generate would need to be protected during the would be the responsibility of the ancillary benefits by protecting the nonbreeding season, the majority of Federal entity involved, not the private primary constituent elements on which actions necessary to conserve the landowner; absent Federal approval, the species depends. As a result, species would be required based on the permits, or funding, the designation management actions undertaken to listing of the western yellow-billed should not affect farming, ranching, or conserve the species or its habitat may cuckoo. For activities that do have a other activities on private lands. have coincident, positive social welfare Federal nexus for section 7 consultation, Comment 143: Multiple commenters implications, such as increased the Service does not anticipate stated they have determined that the recreational opportunities in a region or

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improved property values on nearby designation does not require critical habitat designation limited to parcels. implementation of restoration, recovery, geographical areas occupied by the or enhancement measures by non- species would be inadequate to ensure Critical Habitat Federal landowners. Where a landowner the conservation of the species. In Background requests Federal agency funding or addition, for an unoccupied area to be Critical habitat is defined in section 3 authorization for an action that may considered essential, the Secretary must of the Act as: affect a listed species or critical habitat, determine that there is a reasonable (1) The specific areas within the the Federal agency would be required to certainty both that the area will geographical area occupied by the consult with the Service under section contribute to the conservation of the species, at the time it is listed in 7(a)(2) of the Act. However, even if the species and that the area contains one accordance with the Act, on which are Service were to conclude that the or more of those physical or biological found those physical or biological proposed activity would result in features essential to the conservation of features destruction or adverse modification of the species (50 CFR 424.12(b)(2)). Section 4 of the Act requires that we (a) Essential to the conservation of the the critical habitat, the Federal action designate critical habitat on the basis of species, and agency and the landowner are not the best scientific data available. (b) Which may require special required to abandon the proposed Further, our Policy on Information management considerations or activity, or to restore or recover the Standards Under the Endangered protection; and species; instead, they must implement Species Act (published in the Federal (2) Specific areas outside the ‘‘reasonable and prudent alternatives’’ Register on July 1, 1994 (59 FR 34271)), geographical area occupied by the to avoid destruction or adverse the Information Quality Act (section 515 species at the time it is listed, upon a modification of critical habitat. Under the first prong of the Act’s of the Treasury and General determination that such areas are definition of critical habitat, areas Government Appropriations Act for essential for the conservation of the within the geographical area occupied Fiscal Year 2001 (Pub. L. 106–554; H.R. species. by the species at the time it was listed 5658)), and our associated Information Our regulations at 50 CFR 424.02 are included in a critical habitat Quality Guidelines provide criteria, define the geographical area occupied designation if they contain physical or establish procedures, and provide by the species as an area that may biological features (1) which are guidance to ensure that our decisions generally be delineated around species’ essential to the conservation of the are based on the best scientific data occurrences, as determined by the species and (2) which may require available. They require our biologists, to Secretary (i.e., range). Such areas may special management considerations or the extent consistent with the Act and include those areas used throughout all protection. For these areas, critical with the use of the best scientific data or part of the species’ life cycle, even if habitat designations identify, to the available, to use primary and original not used on a regular basis (e.g., extent known using the best scientific sources of information as the basis for migratory corridors, seasonal habitats, and commercial data available, those recommendations to designate critical and habitats used periodically, but not physical or biological features that are habitat. solely by vagrant individuals). essential to the conservation of the When we are determining which areas Conservation, as defined under species (such as space, food, cover, and should be designated as critical habitat, section 3 of the Act, means the use of protected habitat). In identifying those our primary source of information is all methods and procedures that are physical or biological features that occur generally the information from the SSA necessary to bring an endangered or in specific occupied areas, we focus on report and information developed threatened species to the point at which the specific features that are essential to during the listing process for the the measures provided pursuant to the support the life-history needs of the species. Additional information sources Act are no longer necessary. Such species, including, but not limited to, may include any generalized methods and procedures include, but water characteristics, soil type, conservation strategy, criteria, or outline are not limited to, all activities geological features, prey, vegetation, that may have been developed for the associated with scientific resources symbiotic species, or other features. A species; the recovery plan for the management such as research, census, feature may be a single habitat species; articles in peer-reviewed law enforcement, habitat acquisition characteristic or a more complex journals; conservation plans developed and maintenance, propagation, live combination of habitat characteristics. by States and counties; scientific status trapping, and transplantation, and, in Features may include habitat surveys and studies; biological the extraordinary case where population characteristics that support ephemeral assessments; other unpublished pressures within a given ecosystem or dynamic habitat conditions. Features materials; or experts’ opinions or cannot be otherwise relieved, may may also be expressed in terms relating personal knowledge. include regulated taking. to principles of conservation biology, Habitat is dynamic, and species may Critical habitat receives protection such as patch size, distribution move from one area to another over under section 7 of the Act through the distances, and connectivity. time. We recognize that critical habitat requirement that Federal agencies Under the second prong of the Act’s designated at a particular point in time ensure, in consultation with the Service, definition of critical habitat, we can may not include all of the habitat areas that any action they authorize, fund, or designate critical habitat in areas that we may later determine are carry out is not likely to result in the outside the geographical area occupied necessary for the recovery of the destruction or adverse modification of by the species at the time it is listed, species. For these reasons, a critical critical habitat. The designation of upon a determination that such areas habitat designation does not signal that critical habitat does not affect land are essential for the conservation of the habitat outside the designated area is ownership or establish a refuge, species. When designating critical unimportant or may not be needed for wilderness, reserve, preserve, or other habitat, the Secretary will first evaluate recovery of the species. Areas that are conservation area. Such designation areas occupied by the species. The important to the conservation of the does not allow the government or public Secretary will consider unoccupied species, both inside and outside the to access private lands. Such areas to be essential only where a critical habitat designation, will

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continue to be subject to: (1) species, forage grasses, specific kinds or habitat outside the United States is Conservation actions implemented ages of trees for roosting or nesting, provided. We have determined that the under section 7(a)(1) of the Act; (2) symbiotic fungi, or a particular level of following physical or biological features regulatory protections afforded by the nonnative species consistent with are essential to the conservation of the requirement in section 7(a)(2) of the Act conservation needs of the listed species. western yellow-billed cuckoo. for Federal agencies to ensure their The features may also be combinations Space for Individual and Population actions are not likely to jeopardize the of habitat characteristics and may Growth and for Normal Behavior continued existence of any endangered encompass the relationship between or threatened species; and (3) the characteristics or the necessary amount General breeding (nesting) habitat prohibitions found in section 9 of the of a characteristic essential to support conditions. The western yellow-billed Act. Federally funded or permitted the life history of the species. cuckoo occurs and breeds during the projects affecting listed species outside In considering whether features are breeding season (generally June through their designated critical habitat areas essential to the conservation of the September—May breeding does occur may still result in jeopardy findings in species, the Service may consider an but is less common) in a subset of its some cases. These protections and appropriate quality, quantity, and historical range in the western United conservation tools will continue to spatial and temporal arrangement of States. The western yellow-billed contribute to recovery of this species. habitat characteristics in the context of cuckoo primarily uses nesting sites in Similarly, critical habitat designations the life-history needs, condition, and riparian habitat where conditions are made on the basis of the best available status of the species. These typically cooler and more humid than in information at the time of designation characteristics include, but are not the surrounding environment (Gaines will not control the direction and limited to, space for individual and and Laymon 1984, p. 75; Laymon 1998, substance of future recovery plans, population growth and for normal pp. 11–12; Corman and Magill 2000, p. HCPs, or other species conservation behavior; food, water, air, light, 16). In the Southwest, the western planning efforts if new information minerals, or other nutritional or yellow-billed cuckoo also nests in more available at the time of these planning physiological requirements; cover or arid-adapted habitat in drainages where efforts calls for a different outcome. shelter; sites for breeding, reproduction, conditions are also cooler and more or rearing (or development) of offspring; humid than the surrounding Physical or Biological Features and habitats that are protected from environment (Griffin 2015, entire; Essential to the Conservation of the disturbance. MacFarland and Horst 2015, entire; Species We derive the specific physical or MacFarland and Horst 2017, entire; In accordance with section 3(5)(A)(i) biological features required for the Corson 2018, entire; Drost et al. 2020, of the Act and regulations at 50 CFR western yellow-billed cuckoo from entire). Riparian habitat characteristics, 424.12(b), in determining which areas studies of this species’ habitat, ecology, such as dominant tree species, size and we will designate as critical habitat from and life history as described below. shape of habitat patches, tree canopy within the geographical area occupied Additional information can be found in structure, tree age, vegetation height, by the species at the time of listing, we the proposed and final listing rules and vegetation density, are important consider the physical or biological published in the Federal Register on parameters of western yellow-billed features that are essential to the October 3, 2013 (78 FR 61621), and cuckoo breeding habitat. conservation of the species and that may October 3, 2014 (79 FR 59992), Older studies were geographically require special management respectively. The physical or biological limited in their scope but nevertheless considerations or protection. The features identified here focus primarily established a suite of habitat regulations at 50 CFR 424.02 define on breeding habitat and secondarily on characteristics that became the ‘‘physical or biological features essential foraging habitat because most of the archetype for western yellow-billed to the conservation of the species’’ as habitat relationship research data derive cuckoo breeding habitat. However, the features that occur in specific areas from studies of these activities. Much habitat conditions across the DPS range and that are essential to support the life- less is known about migration, stop- vary considerably, and more recent history needs of the species, including, over, or dispersal habitat within the investigations that included other areas but not limited to, water characteristics, breeding range; however, for these within the western yellow-billed soil type, geological features, sites, prey, purposes, western yellow-billed cuckoo’s breeding range found that large vegetation, symbiotic species, or other cuckoos use a variety of habitats that areas of riparian woodland vegetation features. A feature may be a single may or may not be used for breeding. As are not the only areas used by the habitat characteristic or a more complex a result, we do not think that habitat for species for nesting. We describe both combination of habitat characteristics. these purposes is limiting, and we have the rangewide and southwestern Features may include habitat not specifically identified areas for these breeding habitat below with particular characteristics that support ephemeral purposes in our designation. As stated emphasis on describing the or dynamic habitat conditions. Features above, the species’ use of an area for southwestern habitat, because it is less may also be expressed in terms relating breeding purposes depends on food well known as providing habitat for the to principles of conservation biology, availability and habitat conditions. If western yellow-billed cuckoo. such as patch size, distribution those conditions are not adequate (i.e., Rangewide breeding habitat. distances, and connectivity. For prey not present, environmental Rangewide breeding habitat across the example, physical features essential to conditions not favorable), the species DPS exists primarily in riparian areas the conservation of the species might may still use the area for the other along low-gradient streams, with include gravel of a particular size purposes identified above. Although the patches of cottonwood (Populus spp.) required for spawning, alkaline soil for wintering and nesting habitat for the and willow (Salix spp.) riparian seed germination, protective cover for western yellow-billed cuckoo that vegetation with an overstory and migration, or susceptibility to flooding occurs outside of the United States was understory component. Patches of trees or fire that maintains necessary early- not considered for critical habitat interspersed with openings often successional habitat characteristics. designation, some information on aggregate into large expanses of habitat. Biological features might include prey breeding, migration, and wintering The vegetation is often characterized as

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riparian woodlands. More specifically, valley oak (Quercus lobata) (Gaines ecosystems may even be more sparsely rangewide breeding habitat is 1974, pp. 7–9; Gaines and Laymon 1984, distributed and less prevalent than characterized as having broad pp. 59–66; Laymon and Halterman nonriparian trees. floodplains and open riverine valleys 1989, pp. 274–275; Dettling and Howell Southwestern breeding habitat may be that provide wide floodplain conditions. 2011a, pp. 27–28). less than 325 ft (100 m) wide due to The general habitat characteristics are Western yellow-billed cuckoos have narrow canyons or limited water areas that are often greater than 325 feet also been found nesting in orchards availability that do not allow for (ft) (100 meter (m)) wide but may be adjacent to riparian habitat during the development of wide reaches of habitat. narrow in parts of the floodplain, breeding season (Laymon 1980, pp. 6– Southwestern breeding habitat is often contain low-gradient rivers and streams 8; Laymon 1998, p. 5). Five pairs of but not always 200 ac (81 ha) or more (surface slope usually less than 3 western yellow-billed cuckoos were in size, and may consist of a series of percent), are part of floodplains created found nesting along the Sacramento smaller tree and large shrub patches where rivers and streams enter upstream River in a poorly groomed English separated by openings. Occurring in portions of reservoirs or other water walnut orchard that provided numerous both low- and high-gradient drainages, impoundments, or are in areas densely foliaged horizontal branches on slope does not appear to be a factor in associated with irrigated upland terraces which western yellow-billed cuckoos whether or not western yellow-billed adjacent to water courses or riparian built their nests (Laymon 1980, pp. 6– cuckoos select these areas for nesting. floodplains. The habitat is usually 8). These western yellow-billed cuckoos Canopy closure is variable, and where dominated by willow or cottonwood, that nested in the orchard did not forage trees are sparsely scattered, it may be but sometimes by other riparian species. there, but flew across the river to forage dense only at the nest tree or small The habitat has above-average canopy in riparian habitat. Kingsley (1985, pp. grove including the nest tree. The North closure (greater than 70 percent), and a 245–249; 1989, p. 142) described American Monsoon brings high cooler, more humid environment than western yellow-billed cuckoos as being humidity and rainfall to some of these the surrounding riparian and upland abundant in the pecan groves in Green habitats especially in the ephemeral habitats. The plant species most often Valley and Sahuarita, Arizona, with an drainages in southeastern Arizona associated with rangewide breeding estimated density of one nesting pair where winters are mild and warm, wet habitat are identified above (see General per 10 ac (4 ha). We consider these summers are associated with the Breeding (nesting) Habitat Conditions), agricultural nesting sites to be the monsoon and other tropical weather and each may be dominant depending exception rather than the preferred events (Wallace et al. 2013, entire; on location. These areas contain the nesting habitat for the species due to the Erfani and Mitchell 2014, pp. 13096– moist conditions that support riparian paucity of reports identifying such 13097). The more arid ephemeral plant communities made up of overstory nesting. In mapping the boundaries of drainages may not flow during summer and understory components that the critical habitat, we avoided monsoonal storms, but provide moisture provide breeding sites, shelter, cover, identifying agricultural lands within the for plant growth and insect production. Riparian and xeroriparian drainages and food resources for the western designation. Any agricultural lands in southwestern breeding habitat bisect yellow-billed cuckoo. However, all inadvertently within the boundary of other habitats and often contain a mix foraging needs may not be provided the designation would not be of habitats including but not limited to within areas of critical habitat. Western considered critical habitat because those areas do not contain the physical or Madrean evergreen woodland (Madrean yellow-billed cuckoo use rangewide biological features. encinal and Madrean pinyon-juniper), breeding habitat as described above Southwestern breeding habitat. In desert grassland (including semi-desert throughout the DPS, including where it parts of the Southwestern United States grassland), or desert scrub (including occurs in the Southwest and the states and the states of Sonora and Sinaloa, mesquite (Prosopis, spp.) upland and of Sonora and Sinaloa, Mexico. Mexico, western yellow-billed cuckoo semi-desert scrub) (NatureServe 2016, In addition to cottonwood and breeding habitat is more variable than in entire; Drost et al. 2020, entire). To willow, riparian vegetation may include the rest of its range. Southwestern simplify, we refer to these habitats as tree species other than cottonwood and breeding habitat, found primarily in riparian, xeroriparian (including willow, including but not limited to Arizona and New Mexico, occurs within mesquite bosque), Madrean evergreen boxelder (Acer negundo); ash (Fraxinus or along perennial, intermittent, and woodland, desert grassland, and desert spp.); walnut (Juglans spp.); and ephemeral drainages in montane scrub. More than one vegetation type sycamore (Platanus spp.) (Gaines 1974, canyons, foothills, bajadas, desert within and immediately adjacent to the pp. 7–9; Gaines and Laymon 1984, pp. floodplains, and arroyos. Breeding drainage may contribute toward nesting 59–66; Groschupf 1987 pp. 5, 8–11, 16– habitat may include woody side habitat. For example, mesquite, with 18; Laymon and Halterman 1989, pp. drainages, terraces, and hillsides deeper roots that can reach the water 274–275; Corman and Magill 2000, pp. immediately adjacent to the main table, often flanks the upland perimeter 5, 10, 11, 15, 16; Dettling and Howell drainage bottom below 6,000 ft of more water-dependent cottonwood- 2011a, pp. 27–28). In California, the elevation (1,829 m). In areas where willow riparian habitat. In addition to species is typically found in riparian water is especially limited, but is the riparian trees found across the woodland areas along low-gradient nonetheless productive in terms of food species’ range, the vegetation making up streams with patches of cottonwood and cover for western yellow-billed the breeding habitat of the western (Populus spp.) and willow (Salix spp.) cuckoos, breeding habitat often consists yellow-billed cuckoo in some areas, riparian vegetation with an overstory of narrow, patchy, and/or sparsely especially in the more arid Southwest, and understory component of other tree vegetated drainages surrounded by arid- includes some other native and species, including but not limited to adapted vegetation. Due to more arid nonnative xeroriparian and non-riparian boxelder (Acer negundo); Oregon ash conditions, southwestern breeding trees and large shrubs, such as, but not (Fraxinus latifolia); California black habitat contains a greater proportion of limited to: Mesquite, hackberry (Celtis walnut (Juglans californica); California xeroriparian and nonriparian tree reticulata and C. ehrenbergiana), sycamore (Platanus racemosa); Fremont species than elsewhere in the DPS. soapberry (Sapindus saponaria), oak cottonwood (Populus fremontii); and Riparian and xeroriparian trees in these (Quercus spp.), acacia (Acacia spp.,

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Senegalia greggi), mimosa (Mimosa (NatureServe 2013, pp. 88, 134). management or water delivery spp.), greythorn (Ziziphus obtusifolia), Madrean evergreen woodland habitat requirements. For example, water desert willow (Chilopsis linearis), contains oak, mesquite, juniper, acacia, abundance at Caballo Reservoir and juniper (Juniperus spp.), pine (Pinus and hackberry (Brown 1994, pp. 59–62) downstream on the Lower Rio Grande spp.), alder (Alnus rhombifolia and A. in southeastern Arizona and varies from year-to-year, and timing of oblongifolia), wolfberry (Lycium spp.), southwestern New Mexico’s mountain release may not occur prior to or Russian olive (Elaeagnus angustifolia), ranges, and resembles habitat found in throughout the western yellow-billed and tamarisk (Tamarix spp.) (Groschupf the Sierra Madre Occidental of Mexico. cuckoo breeding season. As a result, 1987 pp. 5, 8–11, 16–18; Corman and In southeastern Arizona, occupied riparian (including xeroriparian) habitat Magill 2000, pp. 10, 15, 16; Corson southwestern breeding habitat that may persist only as narrow bands or 2018, pp. 5, 6–20; Sferra et al. 2019, p. contains a more arid mix of species is scattered patches along the bankline or 3). Of these species, the nonriparian found in drainages in the Santa Catalina as small in-channel islands, or sections trees and large shrubs include oak, Mountains, Rincon Mountains, Santa of undisturbed native willows within juniper, acacia, greythorn, mimosa, and Rita Mountains, Patagonia Mountains, the reservoir. Habitat within these areas mesquite (upland) (NatureServe 2013, Huachuca Mountains, Pajarito/Atascosa may be as small as approximately 30 ac pp. 11–18, 42–113, 132–140). Drainage Mountains, Whetstone Mountains, (12 ha) and is typically composed of bottoms in these habitats consist of Dragoon Mountains, and Buenos Aires either willow, tamarisk, or a mix of the riparian, xeroriparian and nonriparian National Wildlife Refuge, among others two (White et al. 2018, pp. 26–27). trees and may be dominated by (Corman and Magill 2000, pp. 37–48; Adjacent habitat may include mowed cottonwood, willow, mesquite, American Birding Association 2014, nonnative vegetation typically less than hackberry, ash, sycamore, walnut, or entire; Griffin 2015, pp. 17–25; 1 ft (0.3 m) tall or higher terraces within oak (Sogge et al. 2008, pp. 148–149; MacFarland and Horst 2015, pp. i–iii, 2, the floodplain with mesquite or other Johnson et al. 2012, pp. 20–21; 5–7, 9–12; Tucson Audubon Society drought-tolerant vegetation. WestLand Resources, Inc. 2019, entire; 2015, p. 44; Arizona Game and Fish In a study on the Coronado National Villarreal et al. 2014, p. 58; Griffin 2015, Department 2018, entire; Dillon et al. Forest, Arizona, Madrean evergreen pp. 17–25; MacFarland and Horst 2015, 2018, pp. 31–33; White et al. 2018, pp. woodland drainages used by western pp. iiii, 2, 5–7; Corson 2018, entire; 26–27; Rorabaugh 2019, in litt, entire; yellow-billed cuckoos were dominated Sferra et al. 2019, p.3; Drost et al. 2020, Sferra et al. 2019, pp. 3–6, 9–11; Corson by oak trees, often with mesquite trees entire). 2018, entire; Westland Resources, Inc. flanking the riparian strip (MacFarland Occupied habitat within a single 2019, entire; Cornell Lab of Ornithology and Horst 2015, pp. 1, 7). The drainages drainage may include both rangewide 2020 (eBird data; Drost et al. 2020, often merge into the surrounding breeding habitat and southwestern entire). In Sonora and Sinaloa, Mexico, vegetation of juniper. In the wettest breeding habitat, transitioning from western yellow-billed cuckoos also reaches of the drainages, the oaks are large stands of gallery riparian forest to breed in similar riparian habitat interspersed with Arizona sycamore, mesquite woodland, or narrow or bisecting mesquite-dominated hackberry, willows, occasionally patchy stands of riparian or xeroriparian woodlands, and semi-desert and desert cottonwoods, and a few other habitat. These perennial and scrub and grassland habitats (Russell infrequently occurring species such as intermittent drainages include but are and Monson 1998, p. 131). Arizona ash and Arizona walnut not limited to parts of the Gila River, Remnant mesquite bosques, (MacFarland and Horst 2015, p. 1). Total upper Verde River, Blue River, Eagle historically extensive throughout the canopy cover in occupied habitat was Creek, Tonto Creek, San Francisco Southwest along major rivers, still about 52 percent, with oaks as the River, Aravaipa Creek, San Pedro River, occupy some wide floodplains of the predominant overstory species recorded lower Cienega Creek, Mimbres River, lower Colorado River, Gila, Salt, San (overall average 35 percent), followed by and the Rio Grande (Corman and Magill Pedro, Santa Cruz, and Rio Grande mesquite (20 percent), and juniper (16 2000, pp. 37–48; Sogge et al. 2008, pp. Rivers in Arizona and New Mexico. In percent). The most frequent riparian 148–149; Johnson et al. 2012, pp. 20–21; Sonora, Mexico, mesquite bosques overstory species were sycamore (3 Arizona Game and Fish Department where western yellow-billed cuckoos percent) followed by hackberry (5 (AGFD) 2018, entire; Cornell Lab of have nested have also been greatly percent) and willow (2 percent). The Ornithology 2020 (eBird data)). reduced (Russell and Monson 1988, p. average height of the most prevalent In more intermittent and ephemeral 131). For example, Arizona’s upper San overstory tree species at each point drainages that bisect Madrean evergreen Pedro River contains extensive reaches recorded was 20 ft (6.1 m). Habitat woodlands, desert scrub, and desert of mesquite bosque breeding habitat occupied during the breeding season grasslands in montane canyons, adjacent to the cottonwood and willow (which we also refer to as territories foothills, bajadas, and desert floodplains dominated breeding habitat in a broad even though western yellow-billed of southeastern Arizona, riparian and floodplain. cuckoos may not defend habitat (Hughes xeroriparian trees and large shrubs may Arid conditions and water 2015, p. 3)) tended to have a higher be present, but are often sparsely management in the Southwest often percentage of mesquites in the distributed or in a narrow band along influence stream flows into and community composition, while the drainage bottom. The hillsides downstream of reservoirs, limiting unoccupied survey points had a higher immediately adjacent to the tree-lined riparian vegetation regeneration, percentage of junipers (MacFarland and drainages range from dense woodlands growth, and survival. In Arizona and Horst 2015, pp. 9–10). Western yellow- to sparsely treed savannahs with a New Mexico, narrow or patchy riparian billed cuckoo detections ranged in variety of grasses, contributing toward breeding habitat can be found adjacent elevation from 3,564 to 5,480 ft (1,086 foraging and breeding habitat for the to heavily managed floodplains (such as to 1,670 m) (MacFarland and Horst western yellow-billed cuckoo. Tree and areas within Caballo Reservoir and the 2015, p. 10). large shrub species such as mesquite, Lower Rio Grande for example (White et Few western yellow-billed cuckoo hackberry, acacia, mimosa, and al. 2018, pp. 26–27)). Hydrologically detection records in southwestern New greythorn are present in desert scrub perennial systems become intermittent Mexico exist between 1998 and 2014 in and desert grassland habitats or ephemeral due to reservoir Madrean evergreen woodland and

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mesquite woodlands (including other native and tamarisk habitats, 3.5 percent Another issue in regard to tamarisk is thorn trees and shrubs) habitat similar within mixed native and Russian olive the introduction of biocontrol agents to to southeastern Arizona (Cornell Lab of habitats, and only 5 percent within remove tamarisk. In 2001, the U.S. Ornithology 2020 (eBird data)). Much of tamarisk-dominated habitats (Johnson et Department of Agriculture’s Animal and the southwestern New Mexico habitat is al. 2008, pp. 203–204; Johnson et al. Plant Health Inspection Service (APHIS) privately owned and is not visited as 2010, pp. 204–205). Even in the released various species of the frequently by birders as is southeastern tamarisk-dominated habitat, nonnative tamarisk leaf beetle Arizona. No protocol surveys have been cottonwoods were still present at all but (Diorhabda sp.) in an effort to control conducted in these areas. Based on the two of these sites. tamarisk invasion (APHIS 2005, p. 4–5). best available survey information, we Although tamarisk monocultures Since 2001, the tamarisk leaf beetle has have not identified confirmed breeding generally lack the structural diversity of expanded rapidly and its distribution or breeding occupancy in Madrean native riparian habitat, western yellow- now encompasses much of the western evergreen woodland and mesquite billed cuckoos may use these areas for United States (RiversEdge West, 2019, woodlands in New Mexico. Therefore, foraging, dispersal, and breeding, entire). This expansion of tamarisk no critical habitat is designated in especially if the tamarisk-dominated defoliation will lead to habitat similar southwestern habitat in sites retain some native trees. Tamarisk degradation and may render areas southwestern New Mexico. contributes cover, nesting substrate, unsuitable for occupancy by the western Tamarisk. Within Southwestern temperature amelioration, increased yellow-billed cuckoo (Sogge et al. 2008, breeding habitat, tamarisk, also known humidity, and insect production where p. 150). Defoliation during the breeding as salt cedar, is a common nonnative native habitat regeneration and season also exposes eggs and nestlings shrubby tree found occurring along or survivability has been compromised by to heat exposure and predation from within stream courses in western altered hydrology (e.g., reduced flow or decreased cover, as was documented in yellow-billed cuckoo riparian habitat. groundwater availability) and 2008 in St. George, Utah, with the Tamarisk, as a component of wildlife hydrologic processes (e.g., flooding and exposure-caused failure of an active habitat, is often characterized as being sediment deposition). In parts of the southwestern willow flycatcher nest poor habitat for many species of western yellow-billed cuckoo’s range, (Paxton et al. 2011, p. 257). In defoliated wildlife, but it can be a valuable some tamarisk-dominated sites are used areas of the Rio Grande, canopy cover substitute where the hydrology has been for nesting and foraging including parts was still within the natural range of altered to the extent that native of the Bill Williams, Verde, Gila, Salt, variation; however, the canopy cover woodland habitat can no longer exist and Rio Grande Rivers (Groschupf 1987, was composed of dead leaves as (Hunter et al. 1988, 113–123; Service pp. 9, 15; Corman and Magill 2000, pp. opposed to live leaves, which changed 2002, pp. K–11–K–14; Sogge et al. 2008, 11, 14–16, Halterman 2001, pp. 11, 15; the microclimate (Dillon and Ahlers pp. 148–152; Shafroth et al. 2010, Leenhouts et al. 2006, p. 15; Sogge et al. 2018, pp. 26–27). Ultimately, the entire). The spread of tamarisk and the 2008, p. 148; Sechrist et al. 2009, p. 55; sampled areas with the most tamarisk loss of native riparian vegetation is Dockens and Ashbeck 2011a, pp. 1, B– and subsequent defoliation activity primarily a result of land and water reflected the areas with the highest 26; Dockens and Ashbeck 2011b, pp. 8, management actions. Tamarisk does not temperature extremes (Dillon and D–2; Jarnevich et al. 2011, p. 170; invade and out-compete native Ahlers 2018, pp. 26–27). McNeil et al. 2013b, p. I–1; Jakle 2014, vegetation in the Southwest (Service Some tamarisk removal and native 2002, p. H–11). Rather, human actions entire; Orr et al. 2014, p. 25; SRP 2014, tree replacement projects are under way have facilitated tamarisk dispersal to entire; Service 2014b, p. 63; Arizona- to offset the arrival of tamarisk leaf new locales, and created opportunities Sonora Desert Museum 2016, entire; beetles and subsequent defoliation for its establishment by clearing Dillon et al. 2018 pp. 31–33; White et (Service 2016b, pp. 4–15). If these vegetation, modifying physical site al. 2018 pp. 26–27; and Parametrix, projects are unsuccessful in sustaining conditions, altering natural river Incorporated (Inc.) and Southern Sierra native woodland habitat of at least the processes, and disrupting biotic Research Station 2019, p. 5–1). same habitat value as habitat that was interactions (Service 2002, p. H–11). Past restoration efforts favored removed, the end result will be a net Because the presence and relative nonnative tamarisk removal without loss of habitat. Another nonnative dominance of tamarisk is greatly regard for its habitat suitability for the species identified as a biocontrol agent, influenced by hydrologic regime and western yellow-billed cuckoo. In areas the tamarisk weevil (Coniatus sp.). has depth to groundwater, native riparian where tamarisk is a major component also been found in the wild in Arizona, vegetation in tamarisk-dominated (or part of the understory), its removal California, Nevada, and Utah (Eckberg systems is unlikely to reestablish unless may not be appropriate or and Foster 2011, p. 51; Eichhorst et al. the hydrologic regime is restored recommended because western yellow- 2017, entire). The impact of the tamarisk (Stromberg et al. 2007, pp. 381–391). billed cuckoo habitat selection may be weevil has not been well studied and Western yellow-billed cuckoos will based on overstory/understory structure currently has not been shown to sometimes build their nests and forage or annual variation in environmental significantly impact tamarisk-dominated in tamarisk, but there is usually a native factors and not on specific vegetation habitats used by the western yellow- vegetation component within the types (Halterman 2001, pp. 11, 15; billed cuckoo. occupied habitat (Gaines and Laymon Sechrist et al. 2009, p. 53). Halterman Breeding (nesting) habitat and home 1984, p. 72; Johnson et al. 2008, pp. (2001, pp. 11, 15) found western yellow- range size. In rangewide western 203–204). Surveys conducted in the late billed cuckoos nesting in monoculture yellow-billed cuckoo habitat, the habitat 1990s in Arizona in historically stands of tamarisk in 2001 for the first used for breeding and nesting by the occupied western yellow-billed cuckoo time in the 6-year study, indicating that species varies in size and shape. The riparian habitat found 85 percent of all use of tamarisk for nesting may change available information indicates that the western yellow-billed cuckoo detections over time. In some areas, if tamarisk is species requires large tracts of habitat in habitat dominated by cottonwood removed, the remaining habitat may be for breeding and foraging during the with a strong willow and mesquite rendered unsuitable because it is more nesting season (home range). The larger understory, 11.5 percent within mixed exposed, hotter, and drier. the extent of habitat, the more likely it

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will provide suitable habitat for the Sechrist et al. (2009, p. 55) estimated a (Sechrist et al. 2009, p. 55; White et al. western yellow-billed cuckoos and be large variation in home range size, 2018, pp. 14–37). These smaller sites occupied by nesting pairs (Laymon and ranging from 12 to 697 ac (5 to 282 ha). support fewer western yellow-billed Halterman 1989, pp. 274–275). On the upper San Pedro River in cuckoos, but collectively they may be Rangewide breeding habitat can be Arizona, Halterman (2009, pp. 67, 93) important for achieving recovery. relatively dense contiguous stands or also estimated a large variation in home Western yellow-billed cuckoos appear irregularly shaped mosaics of dense range size, ranging from 2.5 to 556 ac (1 to stage (gather) in southern Arizona or vegetation with more sparse or open to 225 ha). In the intermountain west northern Mexico pre- and post-breeding, areas. (Idaho, Utah, Colorado), the western suggesting that this region is important Along the Colorado River in yellow-billed cuckoo breeds in similar to the DPS (McNeil et al. 2015, pp. 249, California and Arizona, western yellow- habitats as described above but that are 251). Some individuals also roam billed cuckoos tend to favor larger more scattered and in lower density widely (several hundred miles), riparian habitat sites for nesting (Parrish et al. 1999, p. 197; Taylor 2000, apparently assessing food resources (Laymon and Halterman 1989, p. 275): pp. 252–253; Idaho Department of Fish prior to selecting a nest site (Sechrist et Sites less than 37 ac (15 ha) are and Game 2005, entire; Wiggins 2005, p. al. 2012, pp. 2–11). A plausible considered unsuitable nesting habitat; 15). These measures suggest that the explanation for prolonged presence in sites between 37 ac (15 ha) and 50 ac (20 amount of habitat required to support southern Arizona and northwestern ha) in size were rarely used as nest sites; nesting western yellow-billed cuckoos Mexico pre- and post-breeding may be and habitat patches or aggregates of even in rangewide riparian breeding that western yellow-billed cuckoos are patches from 50 to 100 ac (20 to 40 ha) habitat is variable. taking advantage of increased insect in size were considered marginal habitat Home range size is unknown in production in the monsoonal area. (Laymon and Halterman 1989, p. 275). southwestern breeding habitat, Identifying and maintaining habitat Vegetation data collected in more recent including in more xeroriparian across the species’ range is important to years along the lower Colorado River at woodland, desert scrub and desert allow the species to take advantage of 834 plots from 2006 through 2012 grassland drainages with a tree variable environmental conditions for indicated the median size of occupied component, and in Madrean evergreen successful breeding opportunities. sites (92 ac (37 ha)) was almost three woodland drainages. Whether the area Foraging area. Western yellow-billed times as large as unoccupied sites (32 ac is considered marginal, suitable, or cuckoos select a nesting site based on (13 ha)) (McNeil et al. 2013b, p. 94). optimal depends on numerous factors optimizing the near-term foraging Habitat areas between 100 ac (40 ha) and is variable across the species’ range. potential of the neighborhood (Wallace and 200 ac (81 ha), although considered Breeding habitat in more arid regions of et al. 2013, p. 2102). Given that western suitable, are not consistently used by the Southwest may be made up of a yellow-billed cuckoos are larger birds the species in California. The optimal series of adjacent or nearly adjacent with a short hatch-to-fledge time, the size of habitat patches (aggregates of habitat patches, less than 200 ac (81 ha) adults must have access to abundant trees that may be interspersed with each, which combined make up suitable food sources to successfully rear their openings, sparse understory or canopy, breeding habitat for the species. Often offspring. High-quality foraging habitat or open floodplains) for the western interspersed with large openings, these in rangewide breeding habitat often yellow-billed cuckoo is generally greater habitat patches include narrow stands of contains a mixture of overstory and than 200 ac (81 ha) in extent and these trees, small groves of trees, or sparsely understory vegetation (typically patches should have dense canopy scattered trees. For example, in the cottonwoods and willows) that provides closure and high foliage volume of Agua Fria River in central Arizona, for diversity and abundance of prey. willows and cottonwoods in at least a occupied habitat consists not only of However, tree habitat does not always portion of the overall habitat patch mature cottonwood and willow gallery have both an overstory and understory. (Laymon and Halterman 1989, pp. 274– forest (multi-aged and multi-height Western yellow-billed cuckoos generally 275) to provide adequate space for forest) found in rangewide breeding forage within the tree canopy, and the nesting and foraging. habitat, but also smaller patches of higher the foliage volume the more In rangewide riparian breeding habitat young willows that are limited to likely western yellow-billed cuckoos are and mixed riparian habitat in California, narrow riparian corridors with mesquite to use a site for foraging (Laymon and Arizona, and New Mexico, the home on the adjacent terrace, characteristic of Halterman 1985, pp. 10–12). Foraging ranges used by the western yellow- southwestern breeding habitat (Prager areas can be less dense with lower billed cuckoo during the breeding and Wise 2015, p. 13). In the bajadas, levels of canopy cover and often have a season varied greatly (Laymon and foothills, and mountain drainages of high proportion of cottonwoods in the Halterman 1987, pp. 31–32; Halterman southeastern Arizona, scattered canopy. Foraging areas can also include 2009, p. 93; Sechrist et al. 2009, p. 55; overstory trees, small patches of trees, or riparian habitat with a high abundance McNeil et al. 2010, p. 75; McNeil et al. narrow stands of trees contain suitable of tamarisk (White et al. 2020, pp. 51– 2011, p. 37; McNeil et al. 2012, p. 69; breeding habitat (MacFarland and Horst 54). McNeil et al. 2013a, pp. 49–52; McNeil 2015, entire, Corson 2018, pp. 5, 6–20; The foraging distance and size of et al. 2013b, pp. 133–134). Home range Sferra et al. 2019, entire). foraging habitat required by western estimates for western yellow-billed Although large expanses of habitat are yellow-billed cuckoo varies on prey cuckoos using telemetered birds on the better than small patches for the species, availability and other environmental lower Colorado River are considerably small habitat patches should be conditions and may vary annually and smaller (20 ha) than those reported from evaluated when managing for the from site to site. A foraging area during other areas such as the San Pedro River western yellow-billed cuckoo. The the breeding season may overlap with (38.6 ha) (Halterman 2009, p. 93) and optimal minimum breeding habitat other western yellow-billed cuckoo the Rio Grande (56.3 ha) (Sechrist et al. patch size of 200 ac (81 ha) may not be foraging areas if multiple nest sites are 2009, p. 55) and may indicate applicable for much of the Southwest, within a single area. Hughes (2015, p. 3) differences in habitat area, quality, or where breeding habitat may be narrower suggests that adjacent nesting western prey densities (McNeil et al. 2013b, p. and patchier and areas of less than 40 yellow-billed cuckoos use time spacing 137). On the Rio Grande in New Mexico, ac (16 ha) may be used for breeding (i.e., no overlap in egg dates) to partition

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resources, allowing many nesting pairs and fall (Sechrist et al. 2012, p. 5; corridors for the western yellow-billed to share localized short-term abundance McNeil et al. 2015, p. 244; Parametrix, cuckoo. of food. In a study in rangewide Inc. and Southern Sierra Research Food, Water, Air, Light, Minerals, or breeding habitat in the Sacramento Station 2019, pp. 97–108). As such, it Other Nutritional or Physiological Valley, California, the mean size of needs movement corridors of linking Requirements foraging areas for 4 pairs of western habitats and stop-over sites along yellow-billed cuckoos was migration routes and between breeding Food. Western yellow-billed cuckoos approximately 48 ac (19 ha) (range 27 to areas (Faaborg et al. 2010, pp. 398–414; eat large insects but also prey on small 70 ac (11 to 28 ha)) of which about 25 Allen and Singh 2016, p. 9). During vertebrates such as frogs (e.g., Hyla spp.; ac (10 ha) was considered usable habitat movements between nesting attempts, Pseudacris spp.; Rana spp.) and lizards for foraging (Laymon 1980, p. 20; western yellow-billed cuckoos have (e.g., Lacertilia sp.) (Hughes 1999, p. 8). Hughes 1999, p. 7). been found at riparian sites with small The diet of the western yellow-billed In the southwestern United States and groves or strips of trees, sometimes less cuckoo on the South Fork Kern River in northern Mexico, western yellow-billed than 10 ac (4 ha) in extent (Laymon and California showed the majority of the cuckoo foraging habitat is usually more Halterman 1989, p. 274). The habitat prey to be the big poplar sphinx moth arid than adjacent occupied nesting features at stop-over and foraging sites larvae (Pachysphinx occidentalis) (45 habitat. Western yellow-billed cuckoos are typically similar to the features at percent), tree frogs (24 percent), not only forage within woodland breeding sites, but may be smaller in katydids (22 percent), and grasshoppers breeding habitat, but they also forage in size, may be narrower in width, and (Order Othoptera) (9 percent) (Laymon almost any adjacent habitat. Desert may lack understory vegetation. and Halterman 1985, pp. 10–12; vegetation in intermittent and Western yellow-billed cuckoos may be Laymon et al. 1997, p. 7). Minor prey at ephemeral drainages or adjacent upland using nonbreeding areas as staging areas that site and other sites includes beetles areas may require direct precipitation to or taking advantage of local foraging (Order Coleoptera sp.), dragonflies flourish (Wallace et al. 2013, p. 2102). resources (Sechrist et al. 2012, pp. 7–9; (Order Odonata), praying mantis (Order Other desert areas with spring-fed McNeil et al. 2015, pp. 250–252). As a Mantidae), flies (Order Diptera), spiders habitat may provide similar habitat result, western yellow-billed cuckoos (Order Araneae), butterflies (Order conditions. Both are important features use nonbreeding or intermittently used Lepidoptera), caddis flies (Order of western yellow-billed cuckoo breeding areas as staging areas, Trichoptera), crickets (Family foraging habitat in the arid Southwest. movement corridors, connectivity Gryllidae), and cicadas (Family In Arizona and New Mexico, adjacent between habitats, or foraging sites Cicadidae) (Laymon et al. 1997, p. 7; foraging habitat other than in riparian (taking advantage of local foraging Hughes 1999, pp. 7–8). In Arizona, and xeroriparian or Madrean evergreen resources). However, because these cicadas are an important food source woodland habitat includes several types nonbreeding habitat areas are not (Halterman 2009, p. 112). Western of semi-desert scrub, desert scrub, limiting, we have not specifically yellow-billed cuckoos on the Buenos chaparral, semi-desert grassland, and identified them as critical habitat. Aires National Wildlife Refuge in desert grassland (Brown and Lowe 1982, Arizona were observed eating tent entire; Brown 1994, entire; Brown et al. Summary of Space for Individual and caterpillars, caterpillars of unidentified 2007, pp. 4–5; NatureServe 2016, entire; Population Growth and for Normal species, katydids, and lizards (Griffin Drost et al. 2020, entire). In New Mexico Behavior 2015, pp. 19–20). At upper Empire along the Rio Grande, 29 percent of all Therefore, based on the information Gulch in southeastern Arizona, a estimated territories in the period 2009– above, for the majority of habitat within western yellow-billed cuckoo was 2014 were located in understory the species’ range (rangewide breeding photographed in a tree in gallery vegetation (considered less than 6 m (15 habitat), we identify rivers and streams riparian forest with a leopard frog (Rana ft) in height) that lacked a canopy of lower gradient and more open valleys spp.) in its bill on July 21, 2014 (Barclay component (considered less than 25 with a broad floodplain, containing 2014, entire; Leake 2014, entire). In the percent cover), but included a New riparian woodland habitat with an intermountain west (Idaho, Utah, Mexico olive (Forestiera neomexicana) overstory and understory vegetation Colorado), the western yellow-billed component (Hamilton 2014, p. 3–84). Of component made up of various plant cuckoo feeds on similar insect species these understory areas, roughly half species (most often dominated by (Parrish et al. 1999, p. 197; Idaho Fish were dominated by exotic species willow or cottonwood) to be physical or and Game 2005, p. 2; Wiggins 2005, p. (primarily tamarisk) (Carstensen et al. biological features essential to the 18). 2015, pp. 57–61). Western yellow-billed conservation of the western yellow- Western yellow-billed cuckoos cuckoos in New Mexico have also been billed cuckoo. In more arid regions of depend on an abundance of large, observed foraging in adjacent habitat up the southwestern United States nutritious insect and vertebrate prey to to 0.5 mi (0.8 km) away from nest sites (southwestern breeding habitat), we also survive and raise young. In portions of (Sechrist et al. 2009, p. 49). In the identify reaches of more arid riparian the southwestern United States, high intermountain west (Idaho, Utah, and xeroriparian habitat (including densities of prey species may be Colorado), the western yellow-billed mesquite bosques), desert scrub and seasonally found, often for brief periods cuckoo breeds in similar habitats as desert grassland drainages with a tree of time, during the vegetation growing described above but that are more component, and Madrean evergreen season. The arrival and nesting of scattered and in lower density (Parrish woodland drainages in low- to high- western yellow-billed cuckoos typically et al. 1999, p. 197; Taylor 2000, pp. gradient drainages to be a physical or coincides with the availability of prey, 252–253; Idaho Fish and Game 2005, biological feature essential to the which is later than in the eastern United entire; Wiggins 2005, p. 15). conservation of this species. These States (Hughes 2020, entire). Desiccated Movement corridors and connectivity habitat types provide space for breeding, riparian sites produce fewer suitable of habitat. The western yellow-billed nesting, and foraging for the western insects than moist sites. In areas that cuckoo is a neotropical migratory yellow-billed cuckoo. These habitat typically receive rains during the species that travels between North, features also provide for migratory or summer monsoon, an increase in Central, and South America each spring stop-over habitat and movement humidity, soil moisture, and surface

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water flow are important triggers for and Mitchell 2014, pp. 13,096–13,097; Seasonal precipitation results in insect reproduction and western yellow- National Weather Service 2019, p. 4). It vegetative regeneration in the billed cuckoo nesting (Wallace et al. supplies about 60–80 percent of the intermittent and ephemeral drainages 2013, p. 2102). Western yellow-billed annual precipitation for northwestern and adjacent desert scrub, desert cuckoos select a nesting site based on Mexico, 45 percent for New Mexico, and grassland, and Madrean evergreen optimizing the near-term foraging 35 percent for Arizona (Erfani and woodlands of the southwestern United potential of the habitat (Wallace et al. Mitchell 2014, p. 13,096). The monsoon States. High summer monsoonal 2013, p. 2102). Given that western typically arrives in early to mid-July in humidity and rain lead to summer flow yellow-billed cuckoos are large birds Arizona and New Mexico, where much events in drainages and increased with a short hatch-to-fledge time, the of the rainfall occurs in the mountains vegetative growth and associated insect adults must have access to abundant (Erfani and Mitchell 2014, pp. 13,096– production during the breeding season. food sources to successfully rear their 13,097; National Weather Service 2019, The North American Monsoon promotes offspring (Laymon 1980, p. 27). The p. 2). The southwestern United States, at growth of shallow-rooted understory variability of monsoon precipitation the northern edge of the monsoon’s vegetation in mesquite-dominated across a region may result in areas with range, receives less and more variable woodlands, Madrean evergreen favorable conditions for western yellow- rainfall than northwestern Mexico woodlands, desert scrub drainages, billed cuckoo nesting in one year and (National Weather Service 2019, p. 2). desert grassland drainages, and adjacent less favorable in a different year. In Humid conditions created by the desert and grassland vegetation (Brown years of high insect abundance, western North American Monsoon (Erfani and 1994, pp. 59–62; Wallace et al. 2013, p. yellow-billed cuckoos lay larger Mitchell 2014, pp. 13,096–13,097; 2102). The hydrologic processes in clutches (three to five eggs rather than National Weather Service 2019, p. 2) Madrean evergreen woodlands, semi- two), a larger percentage of eggs produce and related surface and subsurface desert and desert scrub drainages, and fledged young, and they breed multiple moisture appear to be important for the semi-desert and desert grassland times (two to three nesting attempts western yellow-billed cuckoo. The drainages of southeastern Arizona are rather than one) (Laymon et al. 1997, moisture provides a ‘‘green-up’’ (sudden different than the rest of the range of the pp. 5–7). germination or growth of vegetation) western yellow-billed cuckoo. These Therefore, we identify the presence of that attracts prey and improves habitat bajada and upland habitats on gently abundant, large insect fauna (e.g., conditions. The species is restricted to rolling hillsides are interspersed with cicadas, caterpillars, katydids, nesting in moist riparian habitat or in intermittent or ephemeral drainages. grasshoppers, crickets, large beetles, drainages that bisect semi-desert, desert Humidity brought on by the summer dragonflies, and moth larvae) and small grasslands, desert scrub, and Madrean monsoon may be an especially vertebrates (frogs and lizards) during evergreen woodland in portions of the important trigger for breeding western nesting season of the western yellow- western United States and northern yellow-billed cuckoos in this otherwise billed cuckoo to be a physical or Mexico because of humidity dry landscape. biological feature essential to the Nesting continues through August requirements for successful hatching conservation of the species. and frequently into September in and rearing of young (Hamilton and Water and humidity. Rangewide southeastern Arizona, likely in response Hamilton 1965, p. 427; Gaines and breeding habitat for western yellow- to the increased food resources billed cuckoo is largely associated with Laymon 1984, pp. 75–76; Rosenberg et associated with the seasonal summer perennial rivers and streams that al. 1991, pp. 203–204; Corman and rains (Corman and Wise-Gervais 2005, support the expanse of vegetation Magill 2000, pp. 37–48; American p. 202). For example, the big poplar characteristics needed by breeding Birding Association 2014, entire; sphinx moth is an earth pupator (larvae western yellow-billed cuckoos. Arizona Game and Fish Department burrow in the ground, and pupae Throughout the western yellow-billed 2018, entire; Westland Resources, Inc. emerge under certain environmental cuckoo’s range, winter precipitation (as 2019, entire; Cornell Lab of Ornithology conditions) (Oehlke 2017, p. 5). The rain or snow) provides water flow to the 2020, (eBird data)). sphinx moth has a receptor that detects larger streams and rivers in the late Western yellow-billed cuckoos have the water content of air to sense changes spring and summer. In southwestern evolved larger eggs and thicker in humidity and when conditions are breeding habitat, western yellow-billed eggshells, which help them cope with favorable for feeding and breeding cuckoos also breed in ephemeral and potential higher egg water loss in the (McFarland 1973, pp. 199–208; von Arx intermittent drainages, some of which hotter, drier conditions of the Southwest et al. 2012, p. 9471). In riparian are associated with monsoonal (Hamilton and Hamilton 1965, pp. 426– woodland habitat soil, moisture and precipitation events. Hydrologic 430; Ar et al. 1974, pp. 153–158; Rahn humidity cue the sphinx moths to conditions at western yellow-billed and Ar 1974, pp. 147–152). Nest sites emerge. In Arizona, summer monsoonal cuckoo breeding sites can vary between have lower temperatures and higher precipitation mimics typical riparian years. At some locations during low humidity compared to areas along the woodland soil moisture conditions, rainfall years, water flow may be riparian forest edge or outside the forest which cue the sphinx moth to emerge reduced or absent, or soils may not (Launer et al. 1990, pp. 6–7, 23). Recent from the soil. Although sphinx moths become saturated at appropriate times. research on the lower Colorado River are just one of the foods eaten by During high rainfall years, streamflow has confirmed that western yellow- western yellow-billed cuckoos, we use may be extensive and the riparian billed cuckoo nest sites had these moths to illustrate that the unique vegetation can be inundated and soil significantly higher daytime relative monsoonal conditions in southeastern saturated for extended periods of time. humidity (6–13 percent higher) and Arizona contributing toward food The North American Monsoon significantly lower daytime production are an important factor in (monsoon) is a large-scale weather temperatures (2–4 degrees Fahrenheit western yellow-billed cuckoo presence pattern that causes high humidity and a (1–2 degrees Celsius) lower) than in southeastern Arizona. series of thunderstorms during the average forested sites (McNeil et al. A large proportion of the remaining summer in northwestern Mexico and 2011, pp. 92–101; McNeil et al. 2012, occupied habitat persists in the southwestern United States (Erfani pp. 75–83). hydrologically altered systems in the

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Southwest where the timing, magnitude, m), and Fremont cottonwoods cannot can occur in both managed and and frequency of natural flow have survive if groundwater drops below 16 unmanaged flow conditions depending changed (Service 2002, pp. J1–J34). ft (5 m) (Stromberg and Tiller 1996, p. on the interaction of the water feature Hydrologically altered systems, with 123). Abundant and healthy riparian and its floodplain or the physical less dynamic riverine process than vegetation decreases and habitat characteristics of the landscape. unaltered systems, can support suitable becomes stressed and less productive However, successional vegetation western yellow-billed cuckoo habitat if when groundwater levels are lowered change that produces suitable habitat suitable woodland vegetation as (Stromberg and Tiller 1996, pp. 123– consisting of varied vegetative structure described above is present. As discussed 127). can also occur in managed river and above and in the October 3, 2014, Therefore, based on the information reservoir systems (and in human-altered Federal Register listing the western above, we identify seasonally or river systems) when managed to mimic yellow-billed cuckoo (79 FR 59992), perennially flowing rivers, streams, and natural stream flows, but sometimes human actions have cleared vegetation, drainages; elevated subsurface with different vegetation species modified physical site conditions, groundwater tables; vegetative cover composition, at different timing, altered natural river processes, and that provides important microhabitat frequency, and magnitude than natural disrupted biotic interactions along conditions for successful breeding and riverine systems. For example, varying much of the western yellow-billed prey (high humidity and cooler amounts of western yellow-billed cuckoo habitat in the West (Service temperatures); seasonal precipitation cuckoo habitat are available from 2002, p. H–11). In the intermountain (winter and summer) in the Southwest; month-to-month and year-to-year as a West (Idaho, Utah, Colorado), similar and high summer humidity as physical result of dam operations. During dry losses and degradation of habitat have and biological features essential to the years, when lake levels may be low, occurred (Parrish et al. 1999, pp. 200– conservation of the western yellow- vegetation can be established and 201; Idaho Fish and Game 2005, p. 3; billed cuckoo. mature into habitat for the western Wiggins 2005, pp. 22–27). Habitat Conditions for germination and yellow-billed cuckoo. In wet years, this conditions are greatly influenced by regeneration of vegetation. The vegetation can be flooded for extended hydrologic regime and depth to abundance and distribution of fine periods of time and be stressed or killed. groundwater, and native riparian sediment deposited on floodplains This is particularly true of areas vegetation in altered systems is unlikely during flood events is critical for the upstream of reservoirs like Lake Isabella to reestablish unless the hydrologic development, abundance, distribution, in California, Roosevelt and Horseshoe regime is restored (Stromberg et al. maintenance, and germination of Reservoirs in Arizona, and Elephant 2007, pp. 381–391). However, these riparian tree species. This sediment Butte Reservoir in New Mexico, all of deposition must be accompanied by altered systems, which often cannot which have relatively large western sufficient surface moisture for seed support the native plant species and yellow-billed cuckoo populations. The germination and sufficient groundwater structural diversity of unaltered filling and draw-down of reservoirs levels for survival of seedlings and systems, can support more adapted often mimics the flooding and drying saplings (Stromberg 2001, pp. 27–28). nonnative tree species like tamarisk or events associated with intact riparian The lack of stream flow processes, Russian olive. Western yellow-billed woodland habitat and river systems which deposit such sediments and clear cuckoos occupy nonnative habitat providing habitat for the western out woody debris, may lead riparian yellow-billed cuckoo. interspersed with native habitat on the forested areas to senesce (age and In southern Arizona and New Mexico, Colorado, Bill Williams, Verde, Gila, become less productive) and to become where water is less available and Santa Cruz, San Pedro, and Rio Grande degraded and not able to support the releases do not mimic the natural Rivers (Corman and Magill 2000, pp. varied vegetative structure required for hydrograph, riparian habitat is often 15–16, 37–48; Sonoran Institute 2008, western yellow-billed cuckoo nesting narrower, patchier, sparser, and pp. 30–34; Dockens and Ashbeck 2011a, and foraging. composed of more xeroriparian and p. 6; Dockens and Ashbeck 2011b, p. 10; In unmanaged hydrologic systems nonriparian trees and large shrubs than McNeil et al. 2013b, p. I–1; Arizona (natural riverine systems), associated in a free- flowing river. Habitat Game and Fish Department 2018, entire; with rangewide breeding habitat, this regeneration opportunities occur less Parametrix, Inc. and Southern Sierra variability of water flow results in frequently than in natural systems or Research Station 2019, p. 5–1). removal of stream banks and deposition managed systems that mimic the natural Subsurface hydrologic conditions are of soil and sediments. These sediments hydrograph. Prolonged drying and equally important to surface water provide areas for vegetation (especially flooding from reservoir management can conditions in determining riparian cottonwood and willow) to colonize and also affect food resources and habitat vegetation patterns. Depth to provide diverse habitat for the western suitability for western yellow-billed groundwater plays an important part in yellow-billed cuckoo. In managed cuckoos. For example, food availability the distribution of riparian vegetation hydrologic systems (systems controlled is affected when prolonged inundation and western yellow-billed cuckoo by dams), stream flow is often muted reduces survivability of ground- habitat. Riparian forest trees need access and does not provide the magnitude of dwelling insects such as sphinx moth to shallow groundwater to grow to the these removal and deposition events pupa or katydid eggs (Peterson et al. appropriate size and density to provide except during flood events depending 2008, pp. 7–9). Likewise, prolonged habitat for nesting, foraging, and on stream-bank composition (Fremier et drying reduces the vegetation available migrating western yellow-billed al. 2014, pp. 4–6). However, if these for prey insects to consume, so less cuckoos. Goodding’s willows and systems are specifically managed to insect biomass is available for western Fremont cottonwoods do not regenerate mimic more natural conditions, some yellow-billed cuckoos. successfully if the groundwater levels removal and deposition can occur. The In the southwestern United States, the fall below 6 ft (2 m) from the surface range and variation of stream flow North American Monsoon season, (Shafroth et al. 2000, pp. 66–75). frequency, magnitude, duration, and which peaks in July and August when Goodding’s willows cannot survive if timing that will establish and maintain western yellow-billed cuckoos are groundwater levels drop below 10 ft (3 western yellow-billed cuckoo habitat breeding, provides about 45 percent and

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35 percent of the annual precipitation oak, mesquite, hackberry, acacia, 2015, entire; MacFarland and Horst for New Mexico and Arizona, juniper, greythorn, mimosa, soapberry, 2015, pp. 9–12; Sferra et al. 2019, p. 3). respectively (Erfani and Mitchell 2014, desert willow, Russian olive, and In one study of a compilation of nests, p. 13096). The increased humidity and tamarisk that provide cover and shelter nest site characteristics in rangewide rains promote rapid and dense for nesting, foraging, and dispersing riparian woodland breeding habitat herbaceous growth (forbs, grasses, and western yellow-billed cuckoos as have been compiled from 217 western vines) in occupied habitat in riparian physical or biological features essential yellow-billed cuckoo nests from (including xeroriparian) drainages to the conservation of the western primarily rangewide breeding habitat on intersecting desert scrub and desert yellow-billed cuckoo. the Sacramento and South Fork Kern grassland, and Madrean evergreen Sites for breeding, reproduction, or Rivers in California, and the Bill woodlands. In southeastern Arizona, rearing (or development) of offspring. Williams and San Pedro Rivers in Madrean evergreen woodland habitat Young habitat. The presence of young Arizona. Western yellow-billed cuckoos receives half of the annual precipitation trees appears to be a component of generally nest in thickets dominated by during the growing season from May breeding habitat in at least some sites. willow trees along floodplains greater through August (Brown 1994, pp. 60, In studies of riparian forests throughout than 200 ac (81 ha) in extent and greater 62). California and along the California- than 325 ft (100 m) in width. Nests are Therefore, based on the information Arizona border along the lower placed on well-foliaged branches closer above, we identify flowing perennial Colorado River, researchers found that to the tip of the branch than the trunk rivers and streams and deposited fine the western yellow-billed cuckoo is not of the tree (Hughes 1999, p. 13). Nests sediments as physical and biological restricted to old-growth willows and are built from 4 ft to 73 ft (1 m to 22 features essential to the conservation of cottonwood habitat, but occurs in m) above the ground (average 22 ft (7 the western yellow-billed cuckoo. These habitat with younger trees and saplings m)). Nests at the San Pedro River conditions may occur in either natural 9–32 ft (3–30 m) or less (Gaines and averaged higher (29 ft (9 m)) than either or regulated human-altered riverine Laymon 1984, pp. 73–75; Anderson and the Bill Williams River (21 ft (6 m)) or systems. We also identify intermittent Laymon 1989, entire; Laymon and the South Fork Kern River (16 ft (5 m)). and ephemeral drainages and Halterman 1989, entire; Raulston 2020, Nest trees ranged from 10 ft (3 m) to 98 immediately adjacent upland habitat p. 4). Along the lower Colorado River in ft (30 m) in height and averaged 35 ft (11 (which receive moisture as a result of restored sites at the Palo Verde m). In older stands, heavily foliaged summer monsoon events and other Ecological Reserve, the number of branches that are suitable for nesting seasonal precipitation) that promote western yellow-billed cuckoo territories often grow out into small forest seed germination and regeneration as increased annually until the fourth year openings or over sloughs or streams, essential physical or biological features after planting and then began declining making for ideal nest sites. In younger of western yellow-billed cuckoo habitat. and moving into more recently planted stands, nests are more often placed in Cover or shelter. Rangewide breeding areas (Raulston 2020, p. 20). Between vertical forks or tree crotches. Most nest habitat and the more arid southwestern 2008 and 2012, researchers found that sites in the study were in rangewide breeding habitat provide the western small tree stem density associated with riparian breeding habitat and were yellow-billed cuckoo with cover and young trees and total canopy closure at placed in willows (72 percent of 217 shelter while foraging and nesting. revegetation sites positively associated nests), in generally willow-dominated Placing nests in dense vegetation with western yellow-billed cuckoo nest sites. Nests were also documented in provides cover from predators that placement and that native large tree other riparian tree species, including would search for adult western yellow- stem density showed only a weak Fremont cottonwood (13 percent), billed cuckoos, their eggs, nestlings, and positive association with nest placement mesquite (7 percent), tamarisk (4 fledged young. For example, northern (McNeil et al. 2013b, ES–2, Raulston percent), netleaf hackberry (Celtis harriers (Circus cyaneus) prey on 2020, p. 5). Area (site size) was also a laevigata var. reticulata) (2 percent), western yellow-billed cuckoo nestlings predictor of site occupancy to a lesser English walnut (Juglans regia) (1 in open riparian vegetation at degree; the median size of occupied percent), boxelder (less than 1 percent), restoration sites in California. Dense sites (37.2 ha) was almost three times as and soapberry (Sapindus saponaria) vegetation in the habitat patch makes it large as unoccupied sites (12.8 ha). (less than 1 percent) (Laymon 1980, p. difficult for northern harriers to prey on Western yellow-billed cuckoo nests 8; Laymon 1998, p. 7; Hughes 1999, p. species like the western yellow-billed have been documented in Fremont 13; Corman and Magill 2000, p. 16; cuckoo (Laymon 1998, pp. 12–14). As cottonwood, Goodding’s black willow Halterman 2001, p. 11; Halterman 2002, noted above, shelter provided by the (Salix gooddingii), red willow (Salix p. 12; Halterman 2003, p. 11; Halterman vegetation also contributes toward laevigata), coyote willow (Salix exigua), 2004, p. 13; Corman and Wise-Gervais providing nesting sites, temperature yew-leaf willow (Salix taxifolia), 2005, p. 202; Halterman 2005, p. 10; amelioration, and increased humidity, Arizona sycamore, mesquite, tamarisk, Halterman 2007, p. 5; Holmes et al. all of which assist in benefiting the life hackberry, boxelder, soapberry, Arizona 2008, p. 21). history of western yellow-billed cuckoo. walnut, acacia, ash, alder, seep willow Canopy cover directly above the nest Therefore, we identify riparian trees, (Baccharis salicifolia), English walnut is generally dense (average cover is 89 including but not limited to willow, (Juglans regia), oak, and juniper percent) and is denser at the South Fork cottonwood, alder, walnut, sycamore, (Laymon 1980, pp. 6–8; Laymon 1998, Kern River (93 percent) and Bill boxelder, and ash that provide cover p. 7; Hughes 1999, p. 13; Corman and Williams River (94 percent) than at the and shelter for nesting, foraging, and Magill 2000, p. 16; Halterman 2001, p. San Pedro River (82 percent). Canopy dispersing western yellow-billed 11; Halterman 2002, p. 12; Halterman closure in a plot around the nest cuckoos as physical or biological 2003, p. 11; Halterman 2004, p. 13; averages 71 percent and was higher at features essential to the conservation of Corman and Wise-Gervais 2005, p. 202; the Bill Williams River (80 percent) than the western yellow-billed cuckoo. In Halterman 2005, p. 10; Halterman 2007, at the South Fork Kern River (74 southwestern breeding habitat in more p. 5; Holmes et al. 2008, p. 21; McNeil percent) or San Pedro River (64 percent) arid riparian drainages, in addition to et al. 2013b, pp. I–1–I–3; Tucson (Laymon et al. 1997, pp. 22–23; the riparian species above, we identify Audubon Society 2015, p. 44; Groschupf Halterman 2001, pp. 28–29; Halterman

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2002, p. 25; Halterman 2003, p. 27; In a 2018–2019 study to confirm Munson et al. 2012, pp. 1,083–1,095; Halterman 2004, p. 42; Halterman 2005, western yellow-billed cuckoo breeding Friggens and Finch 2015, entire; Smith p. 32; Halterman 2006, p. 34). In the (copulation, active nests, or fledged and Finch 2016, entire). In rivers that intermountain West (Idaho, Utah, young), breeding was documented at 39 depend on snowmelt, these changes are Colorado), the western yellow-billed out of 51 occupied sites in ephemeral expected to result in more winter cuckoo breeds in similar habitats as xeroriparian drainages in Madrean flooding and reduced summer stream described above, but they are more evergreen woodland, desert and semi- flows (Dominguez et al. 2012, pp. 1–7). scattered and in lower density (Parrish desert scrub, and semi-desert grassland The amount of surface and groundwater et al. 1999, pp. 196–197; Taylor 2000, habitats in southeastern Arizona. These available to regenerate and sustain pp. 252–253; Idaho Fish and Game 51 occupied drainages were in the lower riparian forests is expected to decline 2005, entire; Wiggins 2005, p. 15). Santa Catalina Mountains, lower Santa overall with persistent drought, favor Optimal breeding habitat in rangewide Rita Mountains, Patagonia Mountains, the spread of tamarisk and other riparian breeding habitat contains lower Atascosa Mountains, Altar Valley, nonnative vegetation, and increase fire willow-dominated groves with dense Baboquivari Mountains, Canelo Hills, frequency (Westerling et al. 2006, pp. canopy closure and well-foliaged and Huachuca Mountains (Drost et al. 942–943; McCarthy 2012, pp. 23–25; branches for nest building with nearby 2020, pp. 11–13. Multiple nests were Smith and Finch 2016, p. 128). foraging areas consisting of a mixture of found at some sites, including Las Precipitation events under most climate cottonwoods and willows with a high Guijas Wash and Canoa Wash in the change scenarios within the range of the volume of healthy foliage. Altar Valley, and Box Canyon and DPS will decrease in frequency and In a study on a lower Colorado River Florida Canyon in the Santa Rita increase in severity (Dominguez et al. revegetation site, where cottonwood, Mountains. Trees where nests were 2012, pp. 4–7; Melillo et al. 2014, pp. willow, and mesquite were planted placed varied in size and amount of 70–81). Impacts to riparian habitat from yellow-billed cuckoos nested in cover, ranging from small to large trees climate change will exacerbate impacts cottonwoods (n = 95, 57.5 percent), and from well-concealed nests to from water drawdown from human use, Goodding’s willows (n = 49, 29.7 partially exposed nests (Service 2020c, impoundments, channelization, and percent), honey mesquite (Prosopis entire). Most nests were located along alteration of river flows across the glandulosa) (n = 13, 7.9 percent), the drainage bottoms (See section on western United States and Mexico, and tamarisk (n = 5, 3.0 percent), coyote southwestern breeding (nesting) from conversion of habitat from native willow (n = 2, 1.2 percent), and seep habitat). to mostly nonnative vegetation (Glenn willow (n = 1, 0.7 percent) (Parametrix, Therefore, we identify rangewide and Nagler 2005, p. 439; Bradley et al. Inc. and Southern Sierra Research riparian woodland generally containing 2009, pp. 1514–1519; IPCC 2014, pp. 4– Station 2019, Table 24 p. 89). Trees or willow and cottonwood, usually within 11; Friggens and Finch 2015, pp. 120– shrubs used as nest substrates ranged in floodplains greater than 200 ac (81 ha) 131). height from 2.5 m (8.2 ft) to 25.0 m (82 in extent and greater than 325 ft (100 m) ft) (mean = 12.3 m (40.4 ft)). Nest in width, with one or more densely Changing climate is expected to place heights ranged from 1 m (3.3 ft) to 20 foliaged nesting areas, to be a physical added stress on the species and its m (66 ft) (mean = 7.6 m (24.8 ft)) or biological feature essential to the habitat. This change may reduce (Parametrix, Inc. and Southern Sierra conservation of the species. In some available nesting sites and patch size Research Station 2019, pp. ES–3, 88). areas, we also identify southwestern and affect prey abundance as a result of Tamarisk was not planted and is breeding habitat (drainages with lower humidity in riparian areas from uncommon within the revegetation riparian, xeroriparian, and nonriparian reduced moisture retention, through sites. tree and large shrub habitat intersecting periods of prolonged desiccation, and Some historical records document desert scrub, desert grassland, and through increased likelihood of scouring western yellow-billed cuckoo presence Madrean evergreen woodland, and flood events (Melillo et al. 2014, p. 75). during the breeding season in extensive Madrean pinyon-juniper woodland) that A recent study found western yellow- mesquite bosques on the Santa Cruz may be less than the 200-ac (81-ha) area, billed cuckoo habitat suitability to be River and in the semi-desert grasslands 325-ft (100-m) width with one or more significantly reduced with hotter and desert scrub xeroriparian drainages nesting and foraging sites to be a maximum July temperatures and of Canelo Hills; and in the Madrean physical or biological feature essential increased distance to water along the evergreen woodlands mountain to the conservation of the species. Rio Grande, with 65–98 percent of their drainages of the Atascosa, Pajarito, Effects of climate change. The suitable habitat in New Mexico Santa Rita, Patagonia, Huachuca, and available information on the effects of expected to be lost by 2090 (Friggens Chiricahua Mountains of Southeastern climate change has led us to predict that and Finch 2015, p. 11). Droughts may Arizona (Groschupf (1987, pp. 11, 14, there will be altered environmental impact areas in Arizona that are 16; Corman and Magill 2000, pp. 26–29, conditions across the western United influenced by monsoons (Wallace et al. 37). In Arizona in the late 1990s, States (the breeding range of the western 2013, pp. 2094–2107). Analyses of western yellow-billed cuckoos were yellow-billed cuckoo) (Hoerling et al. stream gauge data in the southwestern documented in Sycamore Canyon and 2013, pp. 3–15). In the southwestern United States indicate that earlier and Pena Blanca Canyon in the Atascosa United States, northern Mexico, diminished stream discharge is Mountains, Canelo Hills, and in the California, Intermountain West, and expected in Arizona, Colorado, New desert scrub and grassland xeroriparian Pacific Northwest, climate change Mexico, and Utah, which will likely drainages in the Altar Valley on Buenos information is generally leading us to reduce survival and reproduction rates Aires National Wildlife Refuge (Corman predict an overall warmer, drier climate, of cottonwood, willow, box elder, and and Magill 2000, pp. 38, 40–44, 48, 51). with periodic episodic precipitation sycamore tree species (Smith and Finch The first oak nest documented in a events that, depending on site 2016, pp. 120–131). Habitat suitability Madrean evergreen woodland drainage conditions, are expected to have adverse models further predict that changes in was found in the lower Santa Rita effects on habitat of the western yellow- climate will increase habitat Mountains in 2014 (Tucson Audubon billed cuckoo (Enquist et al. 2008, pp. fragmentation and decrease breeding Society 2015, p. 44). 1–32; Gardali et al. 2012, pp. 8–10; habitat patch size along the Rio Grande

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in New Mexico (Friggens and Finch nearly contiguous patches adjacent to acacia, mimosa, greythorn, and juniper. 2015, pp. 1–22). In addition, evidence intermittent or perennial watercourses. In southeastern Arizona mountains, shows that climate change may disrupt The slope of the watercourses is breeding habitat is typically below pine the synchrony of nesting western generally less than 3 percent but may be woodlands (∼6,000 ft (1,829 m)). yellow-billed cuckoos and their food greater in some instances. Nesting sites Physical or Biological Feature 2— supply, causing further population within the habitat have an above- Adequate prey base. Presence of prey decline and curtailment of its occupied average canopy closure (greater than 70 base consisting of large insect fauna (for range (Durst 2004, pp. 40–41; Scott et al. percent), and have a cooler, more humid example, cicadas, caterpillars, katydids, 2004, p. 70; Visser and Both 2005, pp. environment than the surrounding grasshoppers, large beetles, dragonflies, 2561–2569). For a more thorough riparian and upland habitats. moth larvae, spiders), lizards, and frogs discussion of climate change and the Rangewide breeding habitat is for adults and young in breeding areas impacts it has on habitat for the western composed of varying combinations of during the nesting season and in post- yellow-billed cuckoo, see the final rule riparian species including the following breeding dispersal areas. to list the species as threatened nest trees: Cottonwood, willow, ash, Physical or Biological Feature 3— published in the Federal Register on sycamore, boxelder, alder, and walnut. Hydrologic processes. The movement of water and sediment in natural or altered October 3, 2014 (79 FR 59992 at 60023). b. Southwestern breeding habitat. systems that maintains and regenerates Southwestern breeding habitat, found Summary of Physical or Biological breeding habitat. This physical or primarily in Arizona and New Mexico, Features Essential for the Western biological feature includes hydrologic is more variable than rangewide Yellow-billed Cuckoo processes found in rangewide breeding breeding habitat. Southwestern breeding According to 50 CFR 424.12(b)(1)(ii), habitat as well as additional hydrologic we identify physical and biological habitat occurs within or along processes unique to the Southwest in features essential to the conservation of perennial, intermittent, and ephemeral southwestern breeding habitat: the species at an appropriate level of drainages in montane canyons, foothills, a. Rangewide breeding habitat specificity using the best available desert floodplains, and arroyos. It may hydrologic processes (including the scientific data. This analysis will vary include woody side drainages, terraces, Southwest): Hydrologic processes between species and may include and hillsides immediately adjacent to (either natural or managed) in river and consideration of the appropriate quality, the main drainage bottom. Drainages reservoir systems that encourage quantity, and spatial and temporal intersect a variety of habitat types sediment movement and deposits and arrangements of such features in the including, but not limited to, desert promote riparian tree seedling context of the life history, status, and scrub, desert grassland, and Madrean germination and plant growth, conservation needs of the species. evergreen woodlands (presence of oak). maintenance, health, and vigor (e.g., Given the wide variety and extent of Southwestern breeding habitat is lower-gradient streams and broad foraging habitat outside the breeding composed of varying combinations of floodplains, elevated subsurface habitat, and the large geographic areas riparian, xeroriparian, and/or groundwater table, and perennial rivers in which western yellow-billed cuckoos nonriparian tree and large shrub species and streams). In some areas where search for food, we are not designating including, but not limited to, the habitat is being restored, such as on foraging habitat as critical habitat. Based following nest trees: Cottonwood, terraced slopes above the floodplain, on our current knowledge of the habitat willow, mesquite, ash, hackberry, this may include managed irrigated characteristics required to sustain the sycamore, walnut, desert willow, systems that may not naturally flood species’ life-history processes including soapberry, tamarisk, Russian olive, due to their elevation above the breeding and dispersing, we have juniper, acacia, and/or oak. In perennial floodplain. determined that the specific physical or and intermittent drainages, b. Southwestern breeding habitat biological features essential to the Southwestern riparian breeding habitat hydrologic processes: In southwestern conservation of the western yellow- is often narrower, patchier, and/or breeding habitat, elevated summer billed cuckoo consist of the following sparser than rangewide riparian humidity and runoff resulting from three components: breeding habitat and may contain a seasonal water management practices or Physical or Biological Feature 1— greater proportion of xeroriparian trees weather patterns and precipitation Rangewide breeding habitat. Riparian and large shrub species. Although some (typically from North American woodlands across the DPS; cottonwood and willow may be present Monsoon or other tropical weather Southwestern breeding habitat, in Southwestern riparian habitat, events) provide suitable conditions for primarily in Arizona and New Mexico: xeroriparian species may be more prey species production and vegetation Drainages with varying combinations of prevalent. Mesquite woodland may be regeneration and growth. Elevated riparian, xeroriparian, and/or present within the riparian floodplain, humidity is especially important in nonriparian trees and large shrubs. This flanking the outer edges of wetter southeastern Arizona, where western physical or biological feature includes riparian habitat, or scattered on the yellow-billed cuckoos breed in breeding habitat found throughout the adjacent hillsides. The more arid the intermittent and ephemeral drainages. DPS range as well as additional drainage, the greater the likelihood that Because the western yellow-billed breeding habitat characteristics unique it will be dominated by xeroriparian and cuckoo exists in noncontiguous areas to the Southwest. nonriparian nest tree species. Arid across a wide geographical and a. Rangewide breeding habitat ephemeral drainages in southeastern elevational range and its habitat is (including areas in the Southwest). Arizona receive summer humidity and subject to dynamic events, the areas Rangewide breeding habitat is rainfall from the North American described below (see Final Critical composed of riparian woodlands within Monsoon (PBF 3), with a pronounced Habitat Designation) are essential to the floodplains or in upland areas or green-up of grasses and forbs. These arid conservation of the western yellow- terraces often greater than 325 ft (100 m) ephemeral drainages often contain billed cuckoo because they provide in width and 200 ac (81 ha) or more in xeroriparian species like hackberry or opportunities for breeding, allow for extent with an overstory and understory nonriparian species associated with the connectivity between habitat, assist in vegetation component in contiguous or adjacent habitat type like oak, mesquite, dispersal, provide redundancy to

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protect against catastrophic loss, and or improper application of pesticides; necessary to achieve recovery of the provide representation of the varying removal of habitat by biocontrol insects; species including development of habitat types used for breeding, thereby and habitat loss and degradation from additional management actions aimed at helping to sustain the species. The invasive nonnative pest insects. More conserving, enhancing, and protecting physical or biological features essential specific activities that may need special the western yellow-billed cuckoo and its to the conservation of the western management are identified in Table 2, habitat. These actions would be further yellow-billed cuckoo are present in the below. identified in a Recovery Plan for the areas designated, but the specific quality Special management considerations species. The role of critical habitat in of habitat for nesting, migration, and or protection are required within critical achieving this conservation goal is to foraging will vary in condition and habitat areas to address these threats. identify the specific areas within the location over time due to plant Management activities that could western yellow-billed cuckoo’s range succession and the dynamic ameliorate these threats include (but are that provide essential physical and environment in which they exist. As a not limited to) the following: biological features, without which areas result, the areas that are designated may Monitoring and regulating stream flows the DPS’s rangewide resiliency, not contain at any one time all of the below reservoirs to mimic natural redundancy, and representation could physical and biological features that flooding and other hydrologic processes not be achieved. This, in turn, requires have been identified for the western to help maintain habitat; establishing an understanding of the fundamental yellow-billed cuckoo. permanent conservation easements or parameters of the species’ biology and Based on use of the areas for breeding, land acquisition to protect the species ecology based on well-accepted we conclude that all of the areas and its habitat; minimizing habitat conservation-biology and ecological identified contain all or most of the disturbance, fragmentation, and principles for conserving species and physical or biological features, but in destruction through use of best their habitats, such as those described some cases, these features are less management practices; and providing by Carroll et al. (1996, pp. 1–12); Meffe prevalent, or their presence is variable appropriate buffers around western and Carroll (1997, pp. 347–383); Shaffer over time due to the changing nature of yellow-billed cuckoo habitat. and Stein (2000, pp. 301–321); NRCS habitat from hydrologic processes. As Criteria Used To Identify Critical (2004 entire); Tear et al. (2005, pp. 835– stated above, all critical habitat units are Habitat 849) and Wolf et al. (2015, pp. 200–207); considered to have been occupied at the and more general riparian and avian time of listing. As required by section 4(b)(2) of the conservation management prescriptions Act, we use the best scientific data such as those described in Service 1985; Special Management Considerations or available to designate critical habitat. In Protection Gardner et al. 1999; Wyoming Partners accordance with the Act and our in Flight 2002; Rich et al. 2004; Riparian When designating critical habitat, we implementing regulations at 50 CFR Habitat Joint Venture (RHJV) 2004; assess whether the specific areas within 424.12(b), we review available Shuford and Gardali 2008; and Griggs the geographical area occupied by the information pertaining to the habitat 2009. species at the time of listing contain requirements of the species and identify features that are essential to the specific areas within the geographical Conservation Strategy conservation of the species and which area occupied by the species at the time In developing our conservation may require special management of listing and any specific areas outside strategy for determining what areas to considerations or protection. Here we the geographical area occupied by the include as critical habitat for the describe the type of special management species to be considered for designation western yellow-billed cuckoo, we considerations or protection that may be as critical habitat. We are not currently focused on the western yellow-billed required for the physical or biological designating any areas outside the cuckoo’s breeding habitat. Breeding features identified for the western geographical area occupied by the habitat includes areas for nesting and yellow-billed cuckoo above. The species because the western yellow- foraging and also provides for dispersal specific critical habitat units and billed cuckoo is found throughout its habitat when breeding or food resources subunits where these management historical range, nor are we designating may not be optimal. Breeding habitat is considerations or protection may be all areas within the geographical area widely spread across the species’ range required are identified in Table 2 below. occupied by the species. Additional and typically provides the physical and A detailed discussion of activities areas besides those identified as critical biological features essential to the influencing the western yellow-billed habitat may be important for recovery conservation of the species without cuckoo and its habitat can be found in for the western yellow-billed cuckoo, which rangewide resiliency, the final listing rule (79 FR 59992, but these areas were not identified as redundancy, and representation of the October 3, 2014). The above-described critical habitat; however, they may be species could not be achieved. As physical or biological features (PBFs) part of future recovery planning efforts explained further below, this focus led may require special management for the species. to the inclusion of breeding habitat considerations or protection to reduce To determine and select appropriate within three general habitat settings as the following threats or potential occupied areas that contain the physical part of the conservation strategy. The threats: Disruption of hydrologic or biological features essential to the three general settings include: (1) Large processes that are necessary to maintain conservation of the species, we river systems (mainstem rivers and their a healthy riparian system; unauthorized developed a conservation strategy for tributaries) in the southern and central or uncontrolled grazing; loss of habitat identifying critical habitat for the portions of New Mexico, Arizona, and from development activities and species. The goal of our conservation along the California border with Arizona extractive uses (sand, gravel, or mineral strategy for the western yellow-billed (generally referred to as the Southwest); extraction); degradation of habitat as a cuckoo is to assist in recovery of the (2) locations within southern Arizona result of expansion of nonnative species to the point where the not associated with major river systems vegetation; destruction of habitat by protections of the Act are no longer or their tributaries; and (3) large river uncontrolled wildfire; reduction of prey necessary. Other actions in addition to systems outside the Southwest (as insect abundance by the unauthorized designating critical habitat may be identified in (1) above) that occur in

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different ecological settings that are western yellow-billed cuckoos also concurrent insect population eruptions, being consistently used as breeding occurs in large river systems in especially in the drainages receiving areas by western yellow-billed cuckoo northwestern Mexico, primarily in relatively more moisture than uplands. (such as areas in parts of California, Sonora and Sinaloa, with smaller A portion of the DPS uses these wet- Utah, Idaho, or Colorado). numbers in Chihuahua and Western seasonal or monsoonal habitats in As discussed above, the western Durango, and the tip of Baja California. southern Arizona and Mexico for yellow-billed cuckoo is a migratory While returning western yellow-billed breeding habitat. Use of these types of species that travels long distances to cuckoos also establish breeding sites by the western yellow-billed take advantage of localized food territories throughout portions of the cuckoo provides additional resiliency to resource outbreaks or habitat western States north of Arizona and the species due to the different weather availability. Maintaining breeding areas New Mexico, these large southwestern patterns and hydrological regimes that (which include nesting habitat, foraging and Mexican river systems (including produce the habitat conditions suitable habitat, and dispersal habitat) but not limited to the Lower Colorado, for breeding. The availability of these throughout the range of the western Salt, Virgin, San Pedro, Gila, Verde, and additional resilient sites in southern yellow-billed cuckoo allows for within- Rio Grande Rivers) serve as core Arizona and northwestern Mexico other year and year-to-year movements to take breeding habitats for the western than the large southwestern and advantage of any spatial and temporal yellow-billed cuckoo as it returns from Mexican river systems described above changes in habitat resources and food wintering grounds in South America. increases the overall redundancy for the abundance. We consider this necessary These core areas together provide a species. Therefore, the southwestern to conserve the species because of the consistent, robust supply of resources monsoon-driven drainages with dynamic nature of habitat used by the necessary for the maintenance and sufficient resources for western yellow- species. Identifying habitat across the expansion of western yellow-billed billed cuckoo foraging and successful species’ range, but primarily in the cuckoos into other habitats across the breeding are essential for the overall Southwest where the core of the range. We consider the large river resiliency and redundancy of the DPS population breeds: (a) Helps maintain a systems (mainstem rivers and their and are therefore essential to allow for robust, well-distributed population and tributaries) in the southern and central conservation of the western yellow- enhances survival and productivity of portions of New Mexico, Arizona, and billed cuckoo across its range. the western yellow-billed cuckoo as a along the California border with Arizona Finally, while large riverine riparian whole; (b) facilitates interchange of to be core areas for conservation of the systems in the core area of the American individuals between units; (c) promotes western yellow-billed cuckoo, and they Southwest are fundamentally important recolonization of any sites within the constitute the first part of our for their ability to contribute to the resiliency of the western yellow-billed current range of the species that may conservation strategy in determining its cuckoo due to the abundance of birds in experience declines or local extirpations critical habitat. The core mainstem these areas, similar systems throughout due to low productivity or temporary rivers and streams along with their the western yellow-billed cuckoo range habitat loss or changes in resource major tributaries and adjacent habitats are also likely important contributors to availability from the core population contain the physical or biological local resiliency and maintaining areas; and (d) allows for use of areas not features essential for the conservation of distribution of the western yellow-billed being used as breeding in a given year the western yellow-billed cuckoo. as habitat for movement and dispersal. cuckoo across its range. These large The western yellow-billed cuckoo However, these managed large river river systems outside the Southwest that breeding coincides with moist and systems may not provide sufficient are being consistently used as breeding humid conditions that support breeding habitat for the western yellow- areas by western yellow-billed cuckoo abundant prey resources occurring in billed cuckoo in all years (for example, have been identified as the third part of the temperate zones of the western in low flow years the amount of our conservation strategy for United States and northern Mexico breeding habitat along rivers is determining critical habitat. These areas during the late spring and summer. diminished), and unregulated smaller are located in habitats identified as Breeding areas of the western yellow- tributaries supported or influenced by being within different ecological billed cuckoo occur primarily in monsoonal weather patterns may assist settings, eco-types, or physio-geographic riparian woodlands along perennial in supporting breeding western yellow- provinces and provide for additional rivers or intermittent or ephemeral billed cuckoos during low flow or redundancy and representation for the drainages containing vegetative drought conditions. Thus, the second western yellow-billed cuckoo across its structure, canopy cover, and appropriate part of our conservation strategy breeding range. The physical and environmental conditions. These areas includes areas within southern Arizona biological features of large river systems provide suitable nesting habitat and not associated with major river systems in differing habitats with sufficient adjacent foraging habitat with adequate or their tributaries as identified above. resources for western yellow-billed food resources on a consistent basis to In southern Arizona, western yellow- cuckoo foraging and successful breeding successfully produce and fledge young. billed cuckoo also use drier habitats for are likely important for contributing to In general, the north-south migratory breeding sites in the desert, foothill, and the western yellow-billed cuckoo’s pathway of the western yellow-billed mountain ephemeral drainages of overall resiliency, redundancy, and cuckoo funnels through northern southern Arizona and northwestern representation, and are therefore Mexico into the American Southwest, Mexico (including but not limited to essential for conservation of the western with a significant portion of returning desert grasslands and scrub, and yellow-billed cuckoo across its range. birds establishing breeding territories Madrean evergreen woodland Habitats and environmental settings in along large river systems (mainstem drainages). These areas receive moisture the arid Southwest differ significantly rivers and their tributaries) in the from the seasonal North American from those in central California or southern and central portions of New Monsoon weather systems and other higher elevation areas of Utah, Idaho, or Mexico, Arizona, and along the summer tropical storm events. During Colorado. By identifying known California border with Arizona. A the breeding season, these habitats breeding habitat of appropriate size significant proportion of breeding experience a ‘‘flush’’ of vegetation and throughout the species’ range, we

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provide habitat where yellow-billed days between June 1 and September 30 location, as well as riparian habitat cuckoos are most likely to thrive and (considered to be the primary breeding (including xeroriparian and associated potentially increase in numbers. period) in at least two years between nonriparian habitat in the Southwestern 1998 and 2014 (or later as described drainages) upstream and downstream Selection Criteria and Methodology above); or from the occurrence location. Used To Determine Critical Habitat • If western yellow-billed cuckoos We used survey data and reports As discussed above, to assist in were confirmed to be a pair and nesting prepared by the USGS, USFS, NPS, determining which areas to identify as was observed (or there was evidence of BLM, Reclamation, the Salt River critical habitat for the western yellow- nesting behavior) in at least one year Project, State wildlife agencies, State billed cuckoo, we focused our selection between 1998 and 2014, regardless of natural diversity data bases, Cornell Lab on areas known to have breeding or the time of year. Thus, if the mated pair of Ornithology (eBird data), researchers, suspected breeding. The western and evidence of nesting behavior was nongovernment organizations, yellow-billed cuckoo is a migratory bird discovered prior to June 1, the area was universities, and consultants, as well as and travels long distances between its considered to be a breeding area. available information in our files, to wintering grounds in Central and South Evidence of nesting behavior other than determine the location of areas used for America to its breeding grounds in presence of an active nest includes breeding within the geographical area Mexico and the Continental United copulation, food carries (bird does not occupied by the western yellow-billed States. As a result, the western yellow- eat food) to the same area, stick carries cuckoo at the time of listing. As stated billed cuckoo continues to be found in (nest building), multiple incidents of above, since 2014, we have become areas throughout its historical range in alarm calls, fledgling (unable to fly) aware of additional areas occupied by the west, including areas which it may with adult, distraction display (dropped the species with evidence of breeding. pass through or stopover during its wing), or pair exchanging multiple We still consider these areas to have travels. Some of the areas it travels ‘‘kowlp’’ or alarm calls (not coos) within been occupied by the species at the time through or stops over at, may include 100 m (328 ft) of one another (Service of listing, based on habitat conditions parks, golf courses, or other areas not and Reclamation 2019). and occupancy of nearby areas. containing the physical or biological In addition to these fundamental Because of the dynamic aspects of features essential to the conservation of criteria established for breeding areas western yellow-billed cuckoo habitat as the species. Other areas, such as across the DPS range, we identified a result of potential flooding, changing historically occupied breeding areas additional criteria for areas in the river locations, and land uses, we used also contain the physical or biological Southwest (Arizona and New Mexico). the active floodplain to identify where features for the species but are not This was to take into account the riparian habitat occurs. When occupied for breeding. Currently known migratory nature of the species moving delineating the critical habitat or suspected breeding areas were up from Mexico through the Southwest, boundary, we included the surrounding selected as critical habitat because they either to or from other breeding areas. contiguous suitable woodland habitat contain the physical and biological The additional criteria is as follows: (including along the stream course and features essential to the conservation of • Areas in the Southwest were not in immediate uplands for breeding, the species necessary for western considered to be breeding areas if the feeding, and sheltering) upstream and yellow-billed cuckoos to produce area contains only two western yellow- downstream until we identified a major offspring, have ample foraging habitat, billed cuckoo records from different break in the vegetation. In many vegetative structure, environmental years, one of which was in September drainages, we included these 0.25 miles conditions, and prey. By selecting and no pairs were detected. Although (mi) (0.62 kilometers (km)) or more breeding areas as critical habitat across western yellow-billed cuckoos are still breaks in habitat to combine one or the western yellow-billed cuckoo’s breeding in September in Arizona, a more areas if we determined that: (1) range, we will assist in conserving the September detection may or may not The gap in vegetation was within minor ability of the species to continue to signify breeding due to birds migrating variances of this distance; (2) the habitat occupy these areas. Moreover, the south or moving between breeding areas on the other side of the gap was a breeding habitat is most likely to be in Mexico. continuation of similar or better suitable essential to the conservation of the As described above, to delineate the habitat and included breeding species because of the importance of units of critical habitat, we first looked occupancy as identified above; or (3) the breeding for survival and recovery of the to those areas being used during the gap in vegetation was determined to be species. breeding season. We defined what we a consequence of natural stream For the 2014 proposed rule, we considered breeding areas as those areas dynamics essential to the continuing reviewed information between 1998 and that contained seasonal occurrences of function of the hydrologic processes of 2014 to determine whether the area was the western yellow-billed cuckoo the occupied areas. occupied at the time of listing. For the between 1998 and 2014, during the By including breaks in habitat and 2020 revised proposed rule, we timeframe in which breeding typically combining areas, we allow for proposed additional units we consider occurs for the species in the United regeneration of vegetation in these areas, to have been occupied at the time of States (June–September). In limited which is often more productive and listing using new data received through instances, this timeframe was expanded provides additional food resources for the 2017 breeding season. To further into May if the information available the species and allows for appropriate support designation of these units, we confirmed breeding activity during this habitat conditions for use when used additional occupancy or nesting earlier timeframe. These breeding dispersing to other breeding locations. data up until the 2020 breeding season. season occurrences (location points Blocks of suitable habitat often contain We considered an area to be a where western yellow-billed cuckoos openings that can change over time in breeding area if it was occupied by the were detected or breeding activity was dynamic riverine systems. Naturally western yellow-billed cuckoo in one of confirmed) were then plotted on maps occurring gaps in habitat following the following two ways: along with information on vegetation flooding and scouring are part of • If western yellow-billed cuckoos cover, topography, and aerial imagery. succession in riparian systems. In time, were present in the area on one or more We then delineated habitat around that trees will regenerate and fill these

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openings. Suitable habitat consists of a ‘‘southwestern breeding habitat,’’ been identified in Montana or variety of configurations that include respectively (see Space for Individual Wyoming. In Nevada, the only known small patches of woodland interspersed and Population Growth and for Normal areas where the western yellow-billed with openings, large expanses of Behavior below). In rangewide breeding cuckoo has confirmed breeding is in the woodland, narrow woodland, or a habitat, we generally selected low- southern part of the State near the combination of different configurations gradient streams containing the physical borders of California and Arizona. These within the same drainage at any given and biological features that were greater habitats are essentially the same as time. Western yellow-billed cuckoos than 200 ac (81 ha)) in size. In those identified in the Southwest in often nest and forage near the edges and considering the extent of each area, in Arizona and New Mexico, but do not openings that are part of the matrix of some cases we included the entire significantly contribute to population suitable habitat. Upland woodland streambed as well as the presently numbers for the western yellow-billed habitat immediately adjacent to river, vegetated areas. Streams, especially cuckoo. stream, or drainages may be composed those with intermittent flows, migrate Sources of data reviewed or cited for of more xeroriparian or nonriparian within the streambed depending on this species in the development of trees. flows and other natural fluvial critical habitat include peer-reviewed In California, western yellow-billed processes. The vegetated areas within articles, information maintained by cuckoos forage mainly within the the streambed may also move to universities and State agencies, existing riparian woodland habitat or directly coincide with the stream movement. As State management plans, species- adjacent uplands when breeding a result, the whole area may not be specific reports, habitat information (Laymon 1980, pp. 6–8; Hughes 2015, p. contiguously vegetated. In these low- sources, climate change studies, 12). In New Mexico, foraging activity gradient rangewide riparian breeding incidental detections, and numerous has been observed in riparian habitat, habitats (i.e., cottonwood, willow), areas survey efforts conducted throughout the immediately adjacent tree-covered that currently contain less than 200 ac species’ range, including but not limited habitat (including salt cedar) and a (81 ha) of riparian habitat outside the to the more recent information below: variety of upland habitats including Southwest were not selected. However, Corman and Magill 2000; Dockens and desert scrub (Sechrist et al. 2009, pp. in some areas of the Southwest, the Ashbeck 2011a, 2011b; SRP 2011a, 24–50). However, based on foraging physical or biological features for areas 2011b; Beason 2012; Dettling and Seavy behavior in other habitats in the West, used as breeding habitat vary from other 2012; Gardali et al. 2012; Johnson et al. we expect the foraging distance to locations in the range of the western 2012; McCarthy 2012; McNeil et al. remain relatively close to the nesting yellow-billed cuckoo. These areas occur 2012; Sechrist et al. 2012; Greco 2013; habitat. In addition, riparian corridors in Arizona and New Mexico and are IPCC 2013; Johnson et al. 2013; McNeil along streams, especially in highly associated with summer monsoonal et al. 2013b; Pederson et al. 2013; developed areas, can in some instances moisture and are smaller, narrower Rohwer and Wood 2013; Scribano 2013; be very narrow, highly degraded, and be habitat areas that may extend into Sechrist et al. 2013; Stromberg et al. characterized as a patchwork of upland areas (areas dominated by 2013; Wallace et al. 2013; American vegetated and nonvegetated areas. mesquite and oak) with higher gradient. Birding Association 2014; Ault et al. Whether these habitat areas were Selection of these areas depended on 2014; Garfin et al. 2014; IPCC 2014; included or combined into a single the amount of use of the area by the Melillo et al. 2014; Orr et al. 2014; larger unit depended on the extent of Stanek 2014; Villarreal et al. 2014; species, the relative proximity to other use of the areas by western yellow- Dettling et al. 2015; Griffin 2015; selected areas, the ecosystem billed cuckoo, the relative amount of Hughes 2015; MacFarland and Horst uniqueness, or value to distribution of habitat gained if the multiple patches 2015, 2017; Van Dooremolen 2015; the area on the landscape. As a result, were included or combined, the WestLand Resources, Inc. 2015 a,b,c,d,e; these habitat sites were selected on a relationship of the area to the overall Arizona Game and Fish Department case-by-case basis to provide for the designation, and the ease or complexity 2018; Corson 2018; Parametrix, Inc., and variability of habitat use by the species of removing all nonhabitat from the Southern Sierra Research Station 2019; in these areas. designation. In addition, by combining RiversEdge West 2019; Sferra et al. these areas, they then better meet an We have not included critical habitat 2019; WestLand Resources, Inc. 2019; appropriate scale of analysis, given the units within Oregon or Washington Cornell Lab of Ornithology 2020 (eBird data as is described in our regulations because the species has been extirpated data); and Drost et al. 2020. for determining critical habitat (50 CFR as a breeder from those States since at The amount and distribution of 424.12(b)(1)). For example, if a break in least the 1940s (Littlefield 1988, p. 2; critical habitat that we are designating habitat occurred between an area with Washington Department of Fish and will give the western yellow-billed high occupancy with sufficient habitat Wildlife 2013, pp. 200–201), and recent cuckoo the opportunity to potentially: and an area with low occupancy, the observations of the species, although (1) Maintain its existing distribution; (2) adjacent area may not have been promising, have not coincided for the move between areas depending on food, included. Alternatively, if two smaller most part with suitable breeding habitat resource, and habitat availability; (3) areas with relatively low occupancy and appear to be dispersing but not increase the size of the population to a were adjacent to each other, those areas breeding birds. We also did not include level where it can withstand potentially most likely would have been combined occupied areas within Montana, negative genetic or demographic to form a single, larger, more Nevada, and Wyoming. The reasons for impacts; and (4) maintain its ability to manageable area. not including critical habitat in these withstand local- or unit-level To distinguish between the western States is that sufficient areas already environmental fluctuations or yellow-billed cuckoo more typical have been identified within this catastrophes. breeding habitat in riparian areas designation, and these areas do not meet When determining critical habitat throughout the range from breeding our conservation strategy for designating boundaries, we made every effort to habitat recently found in more arid critical habitat. The conservation avoid including developed areas such as areas of the Southwest, we use the terms strategy focuses on areas with confirmed lands covered by buildings, pavement, ‘‘rangewide breeding habitat’’ and breeding. No confirmed breeding has and other structures or lands used as

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parks or for agriculture, because such occupied at the time of listing and are www.regulations.gov at Docket No. lands lack physical or biological considered to still be occupied and that FWS–R8–ES–2013–0011 and on our features necessary for the western contain one or more of the physical or website at http://www.fws.gov/ yellow-billed cuckoo. The scale of the biological features that are essential to sacramento. maps we prepared under the parameters support life-history processes of the Final Critical Habitat Designation for publication within the Code of species. This variability is due to Federal Regulations may not reflect the environmental conditions and the We are designating 63 units as critical exclusion of such developed lands. Any dynamic nature of the habitat used by habitat for the western yellow-billed such lands inadvertently left inside the western yellow-billed cuckoo (see cuckoo. The critical habitat areas we critical habitat boundaries shown on the Species Information). describe below constitute our current maps of this rule have been excluded by The critical habitat designation is best assessment of areas that meet the text in the rule and are not designated defined by the map or maps, as definition of critical habitat for the as critical habitat. Therefore, a Federal modified by any accompanying western yellow-billed cuckoo. The areas action involving these lands will not regulatory text, presented at the end of we are designating as critical habitat are trigger section 7 consultation with this document under Regulation located in Arizona, California, Colorado, respect to critical habitat and the Promulgation. We include more detailed Idaho, New Mexico, Texas, and Utah requirement of no adverse modification information on the boundaries of the and are described below. Table 1 shows unless the specific action would affect critical habitat designation in the the critical habitat units and the the physical or biological features in the preamble of this document. We will approximate area of each unit. Land adjacent critical habitat. make the coordinates or plot points or areas identified as ‘‘Other’’ include We are designating as critical habitat both on which each map is based county, city, unclassified, or unknown areas that we have determined are available to the public on http:// land ownerships. TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO [Area estimates reflect all land within critical habitat unit boundaries]

Federal State Tribal Other Total Unit name Unit AC HA AC HA AC HA AC HA AC HA

CA–AZ 1 Colorado River 1 ...... 1 Excluded under section 4(b)(2) of the Act 0 0

CA–AZ 2 Colorado River 2 ...... 2 Excluded under section 4(b)(2) of the Act 0 0

AZ 1 Bill Williams River ...... 3 Excluded under section 4(b)(2) of the Act 0 0

AZ 2 Alamo Lake ...... 4 Excluded under section 4(b)(2) of the Act 0 0

AZ 3 Hassayampa River ...... 5 12 5 ...... 896 363 908 367

AZ 4 Agua Fria River ...... 6 1,802 729 235 95 ...... 1,300 526 3,336 1,350

AZ 5 Upper Verde Creek ...... 7 2,367 958 546 221 ...... 2,275 921 5,188 2,100

AZ 6 Oak Creek ...... 8 596 241 160 65 ...... 1,475 597 2,231 903

AZ 7 Beaver Creek ...... 9 1,335 540 ...... 747 302 2,081 842

AZ 8 Lower Verde/West Clear Ck ...... 10 638 258 30 12 ...... 1,466 593 2,134 864

AZ 9A Horseshoe Dam ...... 11 2,667 1,079 ...... 2,667 1,079

AZ 9B Horseshoe Dam ...... 11 694 281 ...... 88 55 782 316

AZ 10 Tonto Creek ...... 12 2,045 828 ...... 1,135 459 3,181 1,287

AZ 11 Pinal Creek ...... 13 Excluded under section 4(b)(2) of the Act 0 0

AZ 12 Bonita Creek ...... 14 828 335 ...... 101 41 928 375

AZ 13 San Francisco River ...... 15 1,192 482 ...... 135 55 1,327 537

AZ 14 Upper San Pedro River ...... 16 17,957 7,267 1,903 770 ...... 11,199 4,532 31,059 12,569

AZ 15 Lower San Pedro/Gila River ...... 17 2,695 1,091 2,280 922 ...... 17,421 7,050 22,397 9,064

AZ 16 Sonoita Creek ...... 18 ...... 926 375 ...... 1,563 633 2,488 1,007

AZ 17 Upper Cienega Creek ...... 19 4,630 1,874 574 232 ...... 5,204 2,106

AZ 18 Santa Cruz River ...... 20 505 204 4 2 ...... 9,029 3,654 9,538 3,860

AZ 19 Black Draw ...... 21 891 360 134 54 ...... 570 231 1,595 646

AZ 20 Gila River 1 ...... 22 778 315 215 87 ...... 9,547 3,863 10,540 4,266

AZ 21 Salt River ...... 23 502 203 ...... 79 32 581 235

AZ 22 Lower Cienega Creek ...... 24 ...... 759 307 ...... 1,601 648 2,360 955

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TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued [Area estimates reflect all land within critical habitat unit boundaries]

Federal State Tribal Other Total Unit name Unit AC HA AC HA AC HA AC HA AC HA

AZ 23 Blue River ...... 25 1,025 415 ...... 1,025 415

AZ 24 Pinto Creek South ...... 26 368 149 ...... 5 2 373 151

AZ 25 Aravaipa Creek ...... 27 622 252 116 47 ...... 2,199 890 2,937 1,189

AZ 26 Gila River 2 ...... 28 1,895 767 204 83 ...... 3,736 1,512 5,836 2,362

AZ 27 Pinto Creek North ...... 29 415 168 ...... 12 5 427 173

AZ 28 Mineral Creek ...... 30 1 <1 198 80 ...... 180 73 380 154

AZ 29 Big Sandy River ...... 31 1,291 522 ...... 2,945 1,192 4,236 1,714

NM 1 San Francisco River ...... 32 738 299 10 4 ...... 1,291 522 2,039 825

NM 2 Gila River ...... 33 974 394 194 78 ...... 1,867 756 3,036 1,228

NM 3A Mimbres River ...... 34 ...... 260 105 260 105

NM 3B Mimbres River ...... 34 ...... 284 115 284 115

NM 4 Upper Rio Grande 1 ...... 35 ...... 518 210 518 210

NM 5 Upper Rio Grande 2 ...... 36 Excluded under section 4(b)(2) of the Act 0 0

NM 6A Middle Rio Grande ...... 37 Excluded under section 4(b)(2) of the Act 0 0

NM 6B Middle Rio Grande ...... 37 8,651 3,501 13,064 5,287 ...... 24,879 10,068 46,595 18,856

NM 7 Upper Gila River ...... 38 1,086 439 188 76 ...... 3,453 1,397 4,727 1,913

NM 8A Caballo Delta North ...... 39 Excluded under section 4(b)(2) of the Act 0 0

NM 8B Caballo Delta South ...... 39 Excluded under section 4(b)(2) of the Act 0 0

NM 9 Animas ...... 40 Excluded under section 4(b)(2) of the Act 0 0

NM 10 Selden Cyn/Radium Springs ...... 41 Excluded under section 4(b)(2) of the Act 0 0

AZ 30 Arivaca Wash/San Luis ...... 42 4,662 1,887 89 36 ...... 1,014 410 5,765 2,333

AZ 31 Florida Wash ...... 43 449 182 255 103 ...... 43 17 747 302

AZ 32 California Gulch ...... 44 376 152 ...... 181 73 558 226

AZ 33 Sycamore Canyon ...... 45 601 243 ...... 601 243

AZ 34 Madera Canyon ...... 46 1,419 574 ...... 313 127 1,732 701

AZ 35 Montosa Canyon ...... 47 496 201 ...... 3 1 499 202

AZ 36 Patagonia Mountains ...... 48 1,059 429 8 3 ...... 845 342 1,912 774

AZ 37 Canelo Hills ...... 49 1,381 559 1 <1 ...... 1,440 583 2,822 1,142

AZ 38 Arivaca Lake ...... 50 567 229 417 169 ...... 381 154 1,365 553

AZ 39 Peppersauce Canyon ...... 51 317 128 ...... 32 13 349 141

AZ 40 Pena Blanca Canyon ...... 52 483 195 ...... 483 195

AZ 41 Box Canyon ...... 53 317 128 184 74 ...... 34 14 536 217

AZ 42 Rock Corral Canyon ...... 54 190 77 25 10 ...... 214 87

AZ 43 Lyle Canyon ...... 55 716 290 ...... 577 234 1,293 523

AZ 44 Parker Canyon Lake ...... 56 1,424 576 ...... 75 30 1,499 607

AZ 45 Barrel Canyon ...... 57 755 306 ...... 164 66 920 372

AZ 46 Gardner Canyon ...... 58 4,320 1,748 290 117 ...... 471 191 5,081 2,056

AZ 47 Brown Canyon ...... 59 726 294 228 92 ...... 159 64 1,113 451

AZ 48 Sycamore Canyon/Patagonia ...... 60 604 245 ...... 604 245

AZ 49 Washington Gulch ...... 61 361 146 ...... 222 90 585 237

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TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued [Area estimates reflect all land within critical habitat unit boundaries]

Federal State Tribal Other Total Unit name Unit AC HA AC HA AC HA AC HA AC HA

AZ 50 Paymaster Spring/Mowry ...... 62 390 158 ...... 512 207 903 365

CA 1 Sacramento River ...... 63 2,123 859 485 196 ...... 31,593 12,785 34,201 13,841

CA 2 South Fork Kern River ...... 64 85 34 419 170 ...... 1,875 756 2,379 963

ID 1 Snake River 1 ...... 65 2,863 1,158 1,209 489 ...... 1,551 628 5,623 2,276

ID 2 Snake River 2 ...... 66 5,862 2,372 1,940 785 ...... 3,641 1,473 11,442 4,630

ID 3 Henry’s Fork/Teton Rivers ...... 67 756 306 511 207 ...... 3,374 1,365 4,641 1,878

CO 1 Colorado River ...... 68 196 79 174 70 ...... 2,766 1,119 3,137 1,269

CO 2 North Fork Gunnison ...... 69 115 47 ...... 2,211 895 2,326 941

UT 1 Green River 1 ...... 70 4,700 1,902 4,162 1,684 ...... 4,411 1,785 13,273 5,371

UT 2 Green River 2 ...... 71 40 16 632 256 ...... 462 187 1,135 459

TX 1 Terlingue Creek/Rio Grande ...... 72 7,792 3,153 ...... 121 49 7,913 3,202

Totals ...... 105,345 42,630 32,769 13,259 0 0 160,726 65,040 298,845 120,939 Note: Area sizes may not sum due to rounding. ‘‘Other’’ refers to local, county, unknown, or unclassified ownership.

We present brief descriptions of all physical or biological features essential (1) Threats from alteration of hydrology; units, and reasons why they meet the to the conservation of the species within (2) threats from floodplain definition of critical habitat for western each of those units. The special encroachment; and (3) other identified yellow-billed cuckoo, below. We also management considerations include threats. These threats and special provide information on special actions to address the main threats to management considerations are management considerations or western yellow-billed cuckoo habitat summarized in Table 2. See end of table protection that may be required for the and are grouped into three categories: for definition of codes.

TABLE 2—THREATS TO HABITAT AND POTENTIAL SPECIAL MANAGEMENT CONSIDERATIONS FOR CRITICAL HABITAT UNITS DESIGNATED FOR THE WESTERN YELLOW-BILLED CUCKOO

Threats from alteration Threats from floodplain Unit Name of unit of hydrology encroachment Other threats Special mgt.

1 ...... CA/AZ–1 Colorado River 1 ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N, P ...... R, S, T. 2 ...... CA/AZ–2 Colorado River 2 ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N, P ...... R, S, T. 3 ...... AZ–1 Bill Williams River ...... A, B, C ...... K, M, N, P ...... R, T. 4 ...... AZ–2 Alamo Lake ...... B, C, D ...... F ...... K, M, N, P, Q ...... R, S, T. 5 ...... AZ–3 Hassayampa River ...... B, C ...... E, F, G, H, I, J ...... K, L, M, N, P ...... R, S, T. 6 ...... AZ–4 Agua Fria River ...... A, B, C ...... F, G, I ...... K, L, M, N, P ...... R, S, T. 7 ...... AZ–5 Upper Verde River ...... B, C ...... F, G, I ...... K, M, N, P ...... R, S, T. 8 ...... AZ–6 Oak Creek ...... B, C ...... F, G, I ...... K, M, N, P, Q ...... R, S, T. 9 ...... AZ–7 Beaver Creek ...... B, C ...... F, G, I ...... K, M, N, P ...... R, S, T. 10 ...... AZ–8 Lower Verde R./West A, B, C ...... F, G, I ...... K, M, N, P ...... R, S, T. Clear Creek. 11 ...... AZ–9A Horseshoe Dam ...... A, B, C, D ...... I ...... K, M, N, P, Q ...... R, S, T. 11 ...... AZ–9B Horseshoe Dam ...... A, B, C, D ...... I ...... K, M, N, P, Q ...... R, S, T. 12 ...... AZ–10 Tonto Creek ...... B, C, D ...... F, G, I ...... K, M, N, P, Q ...... R, S, T. 13 ...... AZ–11 Pinal Creek ...... B, C ...... F, G, I, J ...... K, L, M, N, P ...... R, S, T. 14 ...... AZ–12 Bonita Creek ...... B, C ...... F, I ...... K, M, N, P, Q ...... R, S, T. 15 ...... AZ–13 San Francisco River ...... B, C ...... F, I ...... K, M, N, P ...... R, S, T. 16 ...... AZ–14 Upper San Pedro River .. B, C ...... E, F, G, I ...... K, L, M, N, P, Q ...... R, S, T. 17 ...... AZ–15 Lower San Pedro and A, B, C ...... E, F, G, H, I ...... K, L, M, N, P ...... R, S, T. Gila Rivers. 18 ...... AZ–16 Sonoita Creek ...... B, C, D ...... F, G, I ...... K, M, N, P, Q ...... R, S, T. 19 ...... AZ–17 Upper Cienega Creek ..... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 20 ...... AZ–18 Santa Cruz River ...... B, C ...... E, F, G, H, I ...... K, L, M, N, P ...... R, S, T. 21 ...... AZ–19 Black Draw ...... B, C ...... F ...... K, M, N, P ...... R, S, T. 22 ...... AZ–20 Gila River 1 ...... A, B, C ...... E, F, G, H ...... K, L, M, N, P ...... R, S, T. 23 ...... AZ–21 Salt River ...... A, B, C, D ...... F, G, I ...... K, M, N, P ...... R, S, T. 24 ...... AZ–22 Lower Cienega Creek ..... B, C ...... E, F, G, I, J ...... K, L, M, N, O, P ...... R, S, T. 25 ...... AZ–23 Blue River ...... A, B, C ...... G, I, J ...... K, M, N, P ...... R, S, T. 26 ...... AZ–24 Pinto Creek South ...... A, B, C ...... F, G, I, J ...... K, N, P ...... R, S, T. 27 ...... AZ–25 Aravaipa Creek ...... B, C ...... E, F, I, J ...... K, M, N, P ...... R, S, T. 28 ...... AZ–26 Gila River 2 ...... A, B, C ...... F, G, I, J ...... K, N, P ...... R, S, T.

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TABLE 2—THREATS TO HABITAT AND POTENTIAL SPECIAL MANAGEMENT CONSIDERATIONS FOR CRITICAL HABITAT UNITS DESIGNATED FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued

Threats from alteration Threats from floodplain Unit Name of unit of hydrology encroachment Other threats Special mgt.

29 ...... AZ–27 Pinto Creek North ...... B, C ...... F, I, J ...... K, N, P ...... R, S, T. 30 ...... AZ–28 Mineral Creek ...... B, C ...... E, F ...... K, O, P, Q ...... R, S, T. 31 ...... AZ–29 Big Sandy River ...... B, C ...... E, F, G, I, ...... K, L, N, P, Q ...... R, S, T. 32 ...... NM–1 San Francisco River ...... B, C ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. 33 ...... NM–2 Gila River ...... B, C ...... E, F, G, I, J ...... K, L, M, N ...... R, S, T. 34 ...... NM–3A Mimbres River ...... B, C ...... F, I ...... K, M, N ...... R, S, T. 34 ...... NM–3B Mimbres River ...... B, C ...... F, I ...... K, M, N ...... R, S, T. 35 ...... NM–4 Upper Rio Grande 1 ...... A, B, C ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. 36 ...... NM–5 Upper Rio Grande 2 ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 37 ...... NM–6A Middle Rio Grande ...... A, B, C, D ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 37 ...... NM–6B Middle Rio Grande ...... A, B, C, D ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 38 ...... NM–7 Upper Gila River ...... B, C ...... E, F, G, I, J ...... K, L, M, N ...... R, S, T. 39 ...... NM–8A Caballo Delta North ...... A, B, C, D ...... E, F, G, I ...... K, L, M, N, O, P, Q ...... R, S, T. 39 ...... NM–8B Caballo Delta South ...... A, B, C, D ...... E, F, G, I ...... K, L, M, N, O, P, Q ...... R, S, T. 40 ...... NM–9 Animas ...... B, C ...... F ...... O, P ...... T. 41 ...... NM–10 Selden Canyon and Ra- A, B, C ...... E, F, G, H, I ...... L, M, N, O, P, Q ...... R, S, T. dium Springs. 42 ...... AZ–30 Arivaca Wash and San B, C ...... F, I ...... K, M, N, P ...... R, S, T. Luis Wash. 43 ...... AZ–31 Florida Wash ...... B, C ...... E, F, G, I, J ...... K, M, N, P ...... R, S, T. 44 ...... AZ–32 California Gulch ...... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 45 ...... AZ–33 Sycamore Canyon ...... A, B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 46 ...... AZ–34 Madera Canyon ...... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 47 ...... AZ–35 Montosa Canyon ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 48 ...... AZ–36 Patagonia Mountains ...... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 49 ...... AZ–37 Canelo Hills ...... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 50 ...... AZ–38 Arivaca Lake ...... A, B, C ...... F, G, I, J ...... K, M, N, O, P, Q ...... R, S, T. 51 ...... AZ–39 Peppersauce Canyon ..... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 52 ...... AZ–40 Pena Blanca Canyon ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 53 ...... AZ–41 Box Canyon ...... B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 54 ...... AZ–42 Rock Corral Canyon ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 55 ...... AZ–43 Lyle Canyon ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 56 ...... AZ–44 Parker Canyon Lake ...... A, B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 57 ...... AZ–45 Barrel Canyon ...... A, B, C ...... F, G, I ...... K, M, N, O, P, Q ...... R, S, T. 58 ...... AZ–46 Gardner Canyon ...... B, C ...... I ...... K, M, N, O, P, Q ...... R, S, T. 59 ...... AZ–47 Brown Canyon ...... B, C ...... F, I ...... K, O, P, Q ...... R, S, T. 60 ...... AZ–48 Sycamore Canyon ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 61 ...... AZ–49 Washington Gulch ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 62 ...... AZ–50 Paymaster Spring ...... B, C ...... F, I ...... K, M, N, O, P, Q ...... R, S, T. 63 ...... CA–1 Sacramento River ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 64 ...... CA–2 South Fork Kern River ...... A, B, C, D ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. 65 ...... ID–1 Snake River 1 ...... A, B, C, D ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. 66 ...... ID–2 Snake River 2 ...... A, B, C ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. 67 ...... ID–3 Henry’s Fork and Teton A, B, C ...... E, F, G, H, I ...... K, L, M, N ...... R, S, T. Rivers. 68 ...... CO–1 Colorado River ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 69 ...... CO–2 North Fork Gunnison R. ... B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 70 ...... UT–1 Green River 1 ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 71 ...... UT–2 Green River 2 ...... A, B, C ...... E, F, G, H, I, J ...... K, L, M, N ...... R, S, T. 72 ...... TX–2 Terlingua Creek and Rio A, B, C ...... K, M, N ...... R, S, T. Grande. Definition of Codes Threats from alteration of hydrology: (A) Change in hydrology from upstream dams; (B) surface water diversions; (C) groundwater extraction; and (D) fluctuating reservoir levels. Threats from floodplain encroachment: (E) Agricultural activities; (F) other development (residential, commercial, etc.); (G) bank stabilization; (H) levee construction and maintenance; (I) road and bridge construction and maintenance; and (J) gravel mining. Other threats: (K) Overgrazing (grazing activities that reduce quality and quantity of breeding habitat); (L) pesticide drift; (M) woodcutting; (N) recreational activities (unauthorized off-highway-vehicle use); (O) on- or offsite mining (other than gravel mining); (P) impacts from human-caused wildfires;

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(Q) disturbance from human foot traffic, vehicular traffic, and associated noise. Special management considerations: (R) Manage hydrology to mimic natural flows and floodplain/drainage processes; (S) prevent encroachment into floodplain/drainage; and (T) control expansion of nonnative vegetation where control benefits native vegetation (the positive and negative impacts of nonnative vegeta- tion removal should be carefully evaluated if such vegetation is a component of existing habitat (i.e., tamarisk) in areas of altered hydrology).

It should be noted that the effects of segment of the Bill Williams River, a Much of the private land in this climate change may influence tributary to the Colorado River, from the revised proposed unit is within The streamflow, groundwater, wildfire, upstream end of Lake Havasu upstream Nature Conservancy’s (TNC) and nonnative vegetation and other aspects to Castaneda Wash in Mohave and La Maricopa County Parks and Recreation of western yellow-billed cuckoo habitat Paz Counties, Arizona. We have Department’s Hassayampa River within the proposed critical habitat. excluded the entire unit from the final Preserve, which is occupied by yellow- Because climate change is not a single critical habitat designation (see billed cuckoos during the breeding threat but a condition that influences Exclusions). A description and map of season. Preserve management requires other impacts to habitat, we did not this unit is maintained in supporting management of cottonwood and willow identify climate change as a single information for this designation (Service habitat to control nonnative species and threat component. 2020b, entire). maintenance of fencing to prevent Unit 4: AZ–2 Alamo Lake; Mohave trespass livestock from damaging habitat Unit Descriptions and La Paz Counties, Arizona. (Maricopa County Parks and Recreation Below we present brief descriptions of Critical habitat unit AZ–2 totals 2,793 Department 2018, pp. 8, 10). Western the units, their extent, and why the ac (1,130 ha) in extent and is a yellow-billed cuckoos occupy and nest physical or biological features may continuous stream made up of a 6-mi at this site during the breeding season require special management or (10-km)-long continuous segment of the annually Habitat is gallery woodland protection. For readers interested in the Santa Maria River and a 3-mi (5-km)- with cottonwood, willow, and mesquite underlying information and data long continuous segment of the Big (Kondrat-Smith 2015, entire). Very little supporting these unit descriptions, Sandy River that feeds into the Santa tamarisk is present in much of the site including units being excluded (e.g., Maria River above Alamo Lake State because the river scours out frequently, cited literature, permit reports, and Park in Mohave and La Paz Counties, preventing tamarisk from becoming other survey efforts), these will be Arizona. We have excluded the entire established. included in the supporting materials Unit from the final critical habitat Unit 6: AZ–4, Agua Fria River; posted on http://www.regulations.gov at designation (see Exclusions). A Yavapai County, Arizona. Docket No. FWS–R8–ES–2013–0011. description of this unit is maintained in Critical habitat unit AZ–4 is 3,336 ac Unit 1: CA/AZ–1 Colorado River 1; supporting information for this (1,350 ha) in extent and is made up of Imperial, Riverside, and San Bernardino designation (Service 2020b, entire). a continuous segment of the Agua Fria Counties, California, and Yuma and La Unit 5: AZ–3 Hassayampa River; River (called Ash Creek above the Paz Counties, Arizona. Maricopa County, Arizona. confluence with Sycamore Creek), Critical habitat Unit CA/AZ–1 was Critical habitat unit AZ–3 is 908 ac which is joined by the Sycamore Creek proposed as containing 82,138 ac (367 ha) in extent and is an tributary. Other portions of tributaries (33,240 ha) including a 150-mi (242-km) approximately 7-mi (11-km)-long that are part of this unit include Silver stretch of the Colorado River in Arizona continuous segment of the Hassayampa Creek, Indian Creek, and Little Ash and California. We have excluded the River in the vicinity of Wickenburg in Creek. Together they form a continuous entire unit from the final designation Maricopa County, Arizona. unit located approximately 2.5 mi (4.0 (see Exclusions). A description and map Approximately 12 ac (5 ha) is in Federal km) east of Cordes Lakes in Yavapai of this unit is maintained in supporting ownership, and 896 ac (363 ha) is in County, Arizona. Approximately 1,802 information for this designation (Service other ownership. This unit is ac (729 ha) is in Federal ownership; 235 2020b, entire). considered to have been occupied at the ac (95 ha) is in State ownership; and Unit 2: CA/AZ–2 Colorado River 2; time of listing. Western yellow-billed 1,300 ac (526 ha) is in other ownership. San Bernardino County, California and cuckoos occupy and nest at this site This unit is considered to have been Mohave County, Arizona. annually during the breeding season occupied at the time of listing. Western Critical habitat unit CA/AZ–2 is (Corman and Magill 2000, pp. 42–43; yellow-billed cuckoos occupy and nest 23,589 ac (9,546 ha) in extent. It is a 23- Kondrat-Smith 2015–2016, entire; at this site annually during the breeding mi (37-km)-long continuous segment of Cornell Lab of Ornithology 2020 (eBird season (Corman and Magill 2000, pp. the Colorado River between the data); Service 2020c). This unit is part 37, 40, 47; Prager and Wise 2013, 2014, Interstate 40 Bridge, including Topock of the core area as identified in our 2015, 2016, 2017, 2018, 2019, entire). Marsh in San Bernardino County, conservation strategy for designating This unit is part of the core area as California, and upstream to the Arizona- critical habitat for the western yellow- identified in our conservation strategy Nevada border in Mohave County, billed cuckoo. The unit provides the for designating critical habitat for the Arizona. We have excluded the entire habitat component provided in PBF 1 western yellow-billed cuckoo. BLM unit from the final critical habitat and the prey component in PBF 2. management to reduce off-road vehicle designation (see Exclusions). A Hydrologic processes, in natural or and grazing pressure has resulted in description and map of this unit is altered systems, that provide for gradual improvement to riparian habitat maintained in supporting information maintaining and regenerating breeding on its Agua Fria National Monument for this designation (Service 2020b, habitat as identified in PBF 3 occur (Prager and Wise 2019, pp. 2–4). entire). within this unit but depend on river Periodic floods on the Agua Fria River Unit 3: AZ–1 Bill Williams; Mohave flows and flood timing. The site also scour brushy understory and encourage and La Paz Counties, Arizona. provides a movement corridor and recruitment of cottonwood and willows. Critical habitat unit AZ–1 is 3,389 ac migratory stop-over habitat for western Other species include sycamore, ash, (1,371 ha) in extent and is a continuous yellow-billed cuckoos. walnut, mesquite, acacia, juniper,

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tamarisk, and adjacent mesquite bosque. contain other species such as ash, Sycamore and boxelder are the The unit provides the habitat sycamore, mesquite, boxelder, walnut, dominant trees at the confluence, with component provided in PBF 1 and the juniper, alder, desert willow, hackberry, scattered cottonwood and some willow prey component in PBF 2. Hydrologic tamarisk, and Russian olive, often with and tamarisk trees. processes, in natural or altered systems, adjacent mesquite woodland (Agyagos Unit 9: AZ–7 Beaver Creek; Yavapai that provide for maintaining and 2016, entire, Prescott National Forest County, Arizona. regenerating breeding habitat as 2019, entire). The Upper Verde State Critical habitat unit AZ–7 is 2,081 ac identified in PBF 3 occur within this Wildlife and Tuzigoot and IBAs lie (842 ha) in extent and is a 23-mi (37- unit but depend on river flows and within this unit (National Audubon km)-long continuous segment of Beaver flood timing. The site also provides Society 2016b, entire; 2020a, entire; Creek from the confluence with the migration stop-over habitat for western Arizona Important Bird Areas (IBA) Verde River near Camp Verde upstream yellow-billed cuckoos moving farther 2020c, entire). to above the Town of Rimrock in north. Altered hydrology has caused the Unit 8: AZ–6 Oak Creek; Yavapai and Yavapai County, Arizona. We have introduction and spread of nonnative Coconino Counties, Arizona. excluded approximately 1 ac (<1 ha) of tamarisk, resulting in reduced quality of Critical habitat unit AZ–6 is 2,231 ac land from this unit (see Exclusions). riparian habitat. Although tamarisk is (903 ha) and is a continuous segment of Approximately 1,335 ac (540 ha) is not as desirable as native habitat, it may Oak Creek from the State Highway 179 Federal land; and 746 ac (302 ha) is in contribute toward habitat suitability in Bridge within the City of Sedona in other ownership. The unit is considered areas where the native tree density can Coconino County, Arizona, downstream to have been occupied at the time of no longer be sustained. to the confluence with the Verde River listing. Western yellow-billed cuckoo Unit 7: AZ–5, Upper Verde River; in Yavapai County, Arizona. occupy and nest in this unit during the Yavapai County, Arizona. Approximately 596 ac (241 ha), is in breeding season (Corman and Magill Critical habitat unit AZ–5 is 5,188 ac Federal ownership; 160 ac (65 ha) is in 2000, pp. 11, 37–41; Holmes et al. 2008, (2,100 ha) in extent. We have excluded State ownership; and 1,475 ac (597 ha) pp. 13, 16, 18–20; Cornell Lab of approximately 272 ac (110 ha) of State is in other ownership. This unit is Ornithology 2020 (eBird data); Service land associated with the AGFD’s Upper considered to have been occupied at the 2020c, entire). This unit is part of the Verde River Wildlife Area and 191 ac time of listing and is occupied by core area as identified in our (77 ha) of Yavapai-Apache tribal land western yellow-billed cuckoos during conservation strategy for designating from this unit (see Exclusions). This the breeding season (Corman and Magill critical habitat for the western yellow- unit extends from approximately 0.6 mi 2000, p. 42; Holmes et al. 2008, pp. 13, billed cuckoo. The unit provides the (0.9 km) east of State Route 89 to I–17 16, 18–20; Agyagos 2016, entire, AGFD habitat component provided in PBF 1 in Yavapai County. Short reaches of 2018, entire; Cornell Lab of Ornithology and the prey component in PBF 2. Granite Creek, Peck’s Lake and Tavasci 2020 (eBird data); Service 2020c). This Hydrologic processes, in natural or Marsh, and Sycamore Creek are also unit is part of the core area as identified altered systems, that provide for included in this unit. Approximately in our conservation strategy for maintaining and regenerating breeding 2,367 ac (958 ha) is in Federal designating critical habitat for the habitat as identified in PBF 3 occur ownership; 546 ac (221 ha) is in State western yellow-billed cuckoo. The unit within this unit but depend on river ownership; and 2,275 ac (921 ha) is in provides the habitat component flows and flood timing. In a larger study other ownership. This unit is provided in PBF 1 and the prey of the Verde River watershed that considered to have been occupied at the component in PBF 2. Hydrologic included 13 survey locations within the time of listing. Western yellow-billed processes, in natural or altered systems, Beaver Creek critical habitat complex, cuckoos occupy and nest at numerous that provide for maintaining and Holmes et al. (2008, pp. 13, 16, 27) locations throughout this unit (Holmes regenerating breeding habitat as found yellow-billed cuckoos occupy et al. 2008, pp. 13, 16, 18–20; Johnson identified in PBF 3 occur within this sites that contain relatively large areas and Rakestraw 2016, pp. 6–7; AGFD unit but depend on river flows and of deciduous riparian habitat, at least 2017, entire; AGFD 2019, entire; Jacobs flood timing. The site also provides a 100 m (328 ft) wide, with dominant tree Engineering 2019, pp. 2–9; Prescott movement corridor and migratory stop- species comprising mainly of National Forest, 2019, entire; SRP over habitat for western yellow-billed cottonwood, willow, alder, and 2019c, entire; Cornell Lab of cuckoos. sycamore and with adjacent patches of Ornithology 2020 (eBird data); National This unit contains the Lower Oak mesquite greater than 12 ac (5 ha) in Audubon Society 2020f; Service 2020c, Creek Important Bird Area (IBA), where size. Habitat at occupied survey entire). This unit is part of the core area western yellow-billed cuckoos are locations within this unit is native as identified in our conservation identified as a breeding bird (National (Holmes et al. 2008, p. 23). The site also strategy for designating critical habitat Audubon Society 2016a, entire). provides migratory stop-over habitat for for the western yellow-billed cuckoo. Vegetation is a mix of riparian gallery of western yellow-billed cuckoos moving The unit provides the habitat cottonwood, willow, sycamore, and farther north. component provided in PBF 1 and the mesquite and hackberry woodland Unit 10: AZ–8 Lower Verde River and prey component in PBF 2. Hydrologic (National Audubon Society 2016a, West Clear Creek; Yavapai County, processes, in natural or altered systems, entire). The reach from Cornville to the Arizona. that provide for maintaining and confluence with the Verde River Unit AZ–8 is 2,134 ac (864 ha) in regenerating breeding habitat as contains the best broad-valley extent and is a 17-mi (27-km) long identified in PBF 3 occur within this floodplain and mesquite bosque habitat continuous segment of the Verde River unit but depend on river flows and on Oak Creek (Agyagos 2016, entire). extending from the I–17 Verde River flood timing. This site also provides a The Oak Creek confluence with the Bridges downstream to Beasley Flat, movement corridor and migratory stop- Verde River consists of an Prescott National Forest, and includes 5 over habitat for western yellow-billed approximately 98-ft (30-m)-wide mi (8 km) of the West Clear Creek cuckoos. riparian area, with mesquite habitat tributary. We have excluded Habitat is primarily cottonwood and adjacent to the riparian vegetation approximately 44 ac (18 ha) of Yavapai- willow gallery riparian forest, and may (Johnson and Rakestraw 2016, p. 6). Apache Nation land from this unit (see

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Exclusions). After exclusion, excluded approximately 387 ac (161 ha) et al. 2004, 2005, 2006, 2007, entire; approximately 638 ac (258 ha) is in from (AZ–9A 76 ac (31 ha) and AZ–9B SRP 2005, p. 5; Archaeological Federal ownership; 30 ac (12 ha) is in 311 ac (130 ha)) of land from the Units Consulting Services, Ltd. 2016, entire; State ownership; and 1,466 ac (593 ha) AZ–9AB (see Exclusions). All lands are 2017, pp. 2–10; 2018, p. 3; 2019, entire; is in other ownership. Mitigation in Federal ownership. The unit is SRP 2017b, p. 28; AGFD 2018, entire; conservation property along the Verde considered to have been occupied at the Cornell Lab of Ornithology 2020 (eBird River that supports nesting western time of listing, and the western yellow- data); Service 2020c, entire). This unit is yellow-billed cuckoos was not billed cuckoo breeds at this site part of the core area as identified in our considered for exclusion. The unit is annually (Corman and Magill 2000, pp. conservation strategy for designating considered to have been occupied at the 37, 41; SRP 2011a, pp. 18, 19; Dockens critical habitat for the western yellow- time of listing. Western yellow-billed and Ashbeck 2011a, 2015, entire; AGFD billed cuckoo. The unit provides the cuckoos occupy and breed in this unit 2018, entire; SRP 2017a, pp. A1–G2; habitat component provided in PBF 1 during the breeding season (Corman and Cornell Lab of Ornithology 2020 (eBird and the prey component in PBF 2. Magill 2000, pp. 38, 45–46, 48; Holmes data); Service 2020c). This unit is part Hydrologic processes, in natural or et al. 2008, pp. 13, 16, 27; Prescott of the core area as identified in our altered systems, that provide for National Forest 2019, entire; AGFD conservation strategy for designating maintaining and regenerating breeding 2018, entire; SRP 2019c, entire; Cornell critical habitat for the western yellow- habitat as identified in PBF 3 occur Lab of Ornithology 2020 (eBird); Service billed cuckoo. The unit provides the within this unit but depend on river 2020c). This unit is part of the core area habitat component provided in PBF 1 flows and flood timing. Dominant as identified in our conservation and the prey component in PBF 2. riparian habitat in this unit is strategy for designating critical habitat Hydrologic processes, in natural or cottonwood, willow, and tamarisk. for the western yellow-billed cuckoo. altered systems, that provide for Mesquite bosque is adjacent to the This unit is part of the Lower Verde maintaining and regenerating breeding riparian habitat in some areas of Tonto River IBA (Arizona IBA 2020b, entire; habitat as identified in PBF 3, occur Creek (Archaeological Consulting National Audubon Society 2020a, within this unit but depend on river Services, Ltd 2018, entire). The site also entire). The unit provides the habitat flows and flood timing. This unit also provides a movement corridor and component provided in PBF 1 and the provides a movement corridor as well as migratory stop-over habitat for western prey component in PBF 2. Hydrologic migratory stop-over habitat for western yellow-billed cuckoos moving farther processes, in natural or altered systems, yellow-billed cuckoos. north. Altered hydrology has caused the that provide for maintaining and This unit includes part of the Salt and introduction and spread of nonnative regenerating breeding habitat as Verde Riparian Ecosystem IBA, with tamarisk resulting in reduced quality of identified in PBF 3 occur within this western yellow-billed cuckoos riparian habitat. Although tamarisk is unit but depend on river flows and identified as a breeding bird (National not as desirable as native habitat, it may flood timing. This unit also provides a Audubon Society 2016b, entire). contribute toward habitat suitability in movement corridor as well as migratory Riparian cottonwood-willow galleries areas where the native tree density can stop-over habitat for western yellow- and mixed riparian stands of native and no longer be sustained. Tamarisk is a billed cuckoos. tamarisk habitat exist both above and component of habitat in this unit and A number of NGO organizations, below Horseshoe Dam, although some of may provide understory or nesting including Friends of Verde River these stands occur as narrow strands habitat for the western yellow-billed Greenway and The Nature Conservancy, along the Verde River (SRP 2008, p. 61). cuckoo. are working on efforts to restore and Habitat consists of contiguous to patchy Unit 13: AZ–11 Pinal Creek; Gila maintain an appropriate level of base cottonwood, willow, tamarisk, and County, Arizona. flows in the Verde River to sustain mesquite (SRP 2011a, p. 18). Altered Critical habitat unit AZ–11 is 419 ac ecological functions (Arizona IBA hydrology has caused the introduction (169 ha) and is a 3-mi (5-km)-long 2020b, entire). Dominant vegetation is and spread of nonnative tamarisk. continuous segment of Pinal Creek, cottonwood and willow with lesser Although tamarisk is not as desirable as approximately 4-mi (6-km) upstream of amounts of sycamore, ash, and tamarisk native habitat, it contributes toward the confluence with the Salt River north (Prescott National Forest 2019, entire). habitat suitability in areas where the of the Town of Globe in Gila County, Mesquite bosque flanks parts of the native tree density can no longer be Arizona. We have excluded the entire riparian forest. Altered hydrology has sustained. unit from the final designation (see caused the introduction and spread of Unit 12: AZ–10 Tonto Creek; Gila Exclusions). A description and map of nonnative tamarisk, resulting in reduced County, Arizona. this unit is maintained in supporting quality of riparian habitat. Although Critical habitat unit AZ–10 is 3,181 ac information for this designation (Service tamarisk is not as desirable as native (1,287 ha) in extent and is made up of 2020b, entire). habitat, it may contribute toward habitat a continuous segment of Tonto Creek Unit 14: AZ–12 Bonita Creek; Graham suitability in areas where the native tree ending at the 2,151-ft (656-m) elevation County, Arizona. density can no longer be sustained. line, which represents the lakebed at Critical habitat unit AZ–12 is 928 ac Unit 11: AZ–9A and AZ–9B Theodore Roosevelt Lake in Gila (375 ha) in extent and is an 11-mi (17- Horseshoe Dam; Gila, Maricopa, and County, Arizona. We have excluded km)-long continuous segment of Bonita Yavapai Counties, Arizona. approximately 489 ac (198 ha) of land Creek, a tributary of the Gila River, and Critical habitat in these two subunits from this unit (see Exclusions). an 8-mi (13-km)-long continuous is 3,449 ac (1,395 ha) (AZ–9A 2,667 ac Approximately 2,045 ac (828 ha) is in segment of the Gila River extending (1,079 ha)); (AZ–9B 782 ac (316 ha)) in Federal ownership, and 1,135 ac (459 upstream and downstream of the extent and is a continuous segment of ha) is in other ownership. The unit is confluence with Bonita Creek, located the Verde River immediately upstream considered to have been occupied at the northeast of the Town of Safford in of Horseshoe Dam and a continuous time of listing. Western yellow-billed Graham County, Arizona. segment of the Verde River immediately cuckoos occupy and nest in this unit Approximately 828 ac (335 ha) is in downstream of Horseshoe Dam in during the breeding season (Corman and Federal ownership, and 101 ac (41 ha) Yavapai County, Arizona. We have Magill 2000, pp. 37, 40, 41, 51; Johnson is in other ownership. The BLM’s Gila

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Box Riparian National Conservation flood timing. The site also provides a Other species include walnut, Area, established by Congress to movement corridor between larger soapberry, ash, Mexican elder, acacia, conserve, protect, and enhance the habitat patches. This unit is part of the and mimosa (EEC 2002, p. 14). riparian values of the area, includes Blue and San Francisco Rivers IBA. Much of this mesquite habitat is Bonita Creek. The unit is considered to Riparian habitat is dominated by composed of large mature trees. Western have been occupied at the time of cottonwood, willow, alder, and yellow-billed cuckoos were documented listing. Western yellow-billed cuckoo sycamore. Mesquite, walnut, oak, and during 2014 surveys on the Babocomari occupy and nest in the unit during the juniper may also be present (Corman River portion of this unit in habitat that breeding season (Corman and Magill and Magill 2000, pp. 15–16; National is not as dense as on the San Pedro 2000, p. 49; AGFD 2018, entire; Audubon Society 2020c; entire). River, including narrow habitat with Reclamation 2019, entire; Cornell Lab of Unit 16: AZ–14 Upper San Pedro low stature and scattered riparian and Ornithology 2020 (eBird)). This unit is River; Cochise County, Arizona. mesquite trees (Swanson 2014, entire). part of the core area as identified in our Critical habitat Unit AZ–14 is 31,059 Altered hydrology has caused the conservation strategy for designating ac (12,569 ha) in extent and is an 84-mi introduction and spread of nonnative critical habitat for the western yellow- (135-km)-long segment of the Upper San tamarisk resulting in reduced quality of billed cuckoo. The unit provides the Pedro River from the border with riparian habitat. Although tamarisk is habitat component provided in PBF 1 Mexico north to nearly the community not as desirable as native habitat, it and the prey component in PBF 2. of Redington in Cochise County, contributes toward habitat suitability in Hydrologic processes, in natural or Arizona. We have excluded the 60-ft areas where the native tree density can altered systems, that provide for (18-m) Roosevelt Reservation from this no longer be sustained. unit (see Exclusions). Approximately maintaining and regenerating breeding Most of this unit lies within the San 17,957 ac (7,267 ha) is in Federal habitat as identified in PBF 3 occur Pedro Riparian National Conservation ownership; 1,903 ac (770 ha) is in State within this unit but depend on river Area and the San Pedro Riparian ownership; and 11,199 ac (4,532 ha) is flows and flood timing. The site also National Conservation Area IBA in other ownership. The unit is provides a movement corridor between (National Audubon Society 2016c, considered to have been occupied at the larger habitat patches. Habitat consists entire). The IBA supports 100 species of time of listing. The upper San Pedro of mesquite bosque and riparian habitat breeding birds, and 250 species of River is known as supporting one of the dominated by cottonwood and willow migrant and wintering birds (National (AGFD 2018, entire). Altered hydrology largest nesting populations of western yellow-billed cuckoo s along a free- Audubon Society 2016c, entire). The 40 has caused the introduction and spread mi (64 km) of the upper San Pedro River of nonnative tamarisk resulting in flowing river during the breeding season. This unit is part of the core area was designated by Congress as a reduced quality of riparian habitat. Riparian National Conservation Area in Although tamarisk is not as desirable as as identified in our conservation 1988. The primary purpose for the native habitat, it may contribute toward strategy for designating critical habitat special designation is to protect and habitat suitability in areas where the for the western yellow-billed cuckoo. enhance the desert riparian ecosystem, native tree density can no longer be The unit provides the habitat a rare remnant of what was once an sustained. component provided in PBF 1 and the Unit 15: AZ–13 San Francisco River; prey component in PBF 2. Hydrologic extensive network of similar riparian Greenlee County, Arizona. processes, in natural or altered systems, systems throughout the American Critical habitat unit AZ–13 is 1,327 ac that provide for maintaining and Southwest. Part of this unit is within the (537 ha) in extent and is a 4-mi (6-km)- regenerating breeding habitat as Lower San Pedro River IBA (National long continuous segment of the San identified in PBF 3 occur within this Audubon Society 2016h, entire). The Francisco River that includes a unit but depend on river flows and conservation property, Three Links continuous segment of a tributary called flood timing. This unit also provides a Farm consisting of 2,156 ac (873 ha), Dix Creek located approximately 6 mi movement corridor and migratory stop- was purchased by TNC to protect the (9.6 km) west of the border with New over habitat for western yellow-billed San Pedro River and its riparian habitat. Mexico in Greenlee County, Arizona. cuckoos. Reclamation holds a conservation Approximately 1,192 ac (482 ha) is in This unit not only includes gallery easement on part of the property. Federal ownership, and 135 ac (55 ha) riparian habitat dominated by Western yellow-billed cuckoos nest in is in other ownership. The unit is cottonwood and willow, but also a large the cottonwood and willow dominated considered to have been occupied at the adjacent mesquite bosque, where gallery forest and mesquite bosque. The time of listing, and is used by the western yellow-billed cuckoos also nest Cascabel Conservation Association western yellow-billed cuckoo during the and forage (Corman and Magill 2000, (2014, entire), a non-profit corporation breeding season (AGFD 2018, entire; pp. 11, 39–40, 44, 50; Cascabel of local landowners near the community Corman and Magill 2000, pp. 38–39, 44; Conservation Association 2014, entire; of Cascabel dedicated to the Cornell Lab of Ornithology 2020, (eBird EEC 2002, pp. ES–1, 6, 10, 11; collaborative stewardship of the Middle data)); Reclamation 2020b, p. 6.2.2). Halterman 2002, pp. 10, 22; Halterman San Pedro River watershed, provided This unit is part of the core area as 2003, pp. 9, 23; Halterman 2004, pp. 9, western yellow-billed cuckoo data identified in our conservation strategy 33–34; Halterman 2005, pp. 8, 22–23; collected during the breeding season in for designating critical habitat for the Halterman 2006, pp. 26–27, 31; support of designation of critical western yellow-billed cuckoo. The unit Halterman 2007, pp. 5, 11; Halterman habitat. The Friends of the San Pedro provides the habitat component 2009, p. 23; Swanson 2014, entire; River, a non-profit organization provided in PBF 1 and the prey AGFD 2018, entire; Cornell Lab of dedicated to the conservation and component in PBF 2. Hydrologic Ornithology 2020 (eBird data); Service restoration of the river through processes, in natural or altered systems, 2020c, entire). Western yellow-billed advocacy, education, and interpretation that provide for maintaining and cuckoos have been found nesting in supports designation of critical habitat. regenerating breeding habitat as mesquite bosque as far away as 0.3 mi Unit 17: AZ–15 Lower San Pedro and identified in PBF 3 occur within this (0.5 km) from the adjacent upper San Gila Rivers; Pima, Pinal and Gila unit but depend on river flows and Pedro River (Halterman 2006, p. 31). Counties, Arizona.

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Critical habitat unit AZ–15 is 22,397 western yellow-billed cuckoos were not point on the creek approximately 4 mi ac (9,064 ha) in extent and is a 119-mi considered for exclusion. The unit (6 km) east of the Town of Rio Rico in (192-km)-long segment of the Lower San provides the habitat component Santa Cruz County, Arizona. Pedro River from just north of the provided in PBF 1 and the prey Approximately 926 ac (375 ha) is in community of Redington in Pima component in PBF 2. Hydrologic State ownership, and 1,563 ac (633 ha) County downstream for approximately processes, in natural or altered systems, is in other ownership. This unit is 49 mi (78 km) to its confluence with the that provide for maintaining and considered to have been occupied at the Gila River. The Gila River segment regenerating breeding habitat as time of listing. Western yellow-billed continues downstream for identified in PBF 3 occur within this cuckoos nest throughout this unit approximately 39 mi (63 km) to the area unit but depend on river flows and during the breeding season (Corman and of the Ashurst-Hayden Dam. A segment flood timing. The site also provides a Magill 2000, pp. 38–40, 45, 51; Kingsley of the unit continues upstream to movement corridor and migratory stop- and Gaiennie 2005, entire; Tucson Porphyry Gulch in Pinal County, over location for western yellow-billed Audubon Society 2012, entire; AGFD Arizona. In the revised proposed rule, cuckoos moving farther north. Altered 2018, entire; Cornell Lab of Ornithology we identified approximately 729 ac (295 hydrology has caused the introduction 2020 (eBird data); Service 2020c, entire). ha) of San Carlos Apache parcel land in and spread of nonnative tamarisk This unit is part of the core area as this unit for exclusion. After resulting in reduced quality of riparian identified in our conservation strategy publication, we identified an additional habitat. Although tamarisk is not as for designating critical habitat for the 185 ac (75 ha) along the Lower San desirable as native habitat, it may western yellow-billed cuckoo. The unit Pedro River between Aravaipa Creek contribute toward habitat suitability in provides the habitat component and the Gila River confluence, totaling areas where the native tree density can provided in PBF 1 and the prey approximately 914 ac (370 ha) of San no longer be sustained. Tamarisk is a component in PBF 2. Hydrologic Carlos Apache lands. However, due to component of habitat in this unit and processes, in natural or altered systems, revisions of the area considered as may provide understory or nesting that provide for maintaining and critical habitat between the revised habitat for the western yellow-billed regenerating breeding habitat as cuckoo. identified in PBF 3 occur within this proposed rule and this final designation, The entire lower San Pedro reach is unit but depend on river flows and the area upstream of Prophyry Gulch on included in the Lower San Pedro River flood timing. This site also provides a the Gila River was removed. As a result, IBA (National Audubon Society 2016h, movement corridor and migratory stop- the total area of Tribal lands we are entire) and consists of cottonwood and over habitat for western yellow-billed excluding in Unit 17 is approximately Goodding’s willow gallery forest cuckoos. 445 ac (184 ha). (see Exclusions, Tribal riparian habitat is interspersed with old The perennial flow in Sonoita Creek Lands). The San Carlos Apache parcels growth honey mesquite (Prosopis supports a diverse gallery cottonwood along the lower San Pedro River juliflora) woodland bosques. Other and Goodding’s willow forest that between Aravaipa Creek and the Gila species include hackberry, ash, coyote includes walnut, mesquite, ash, River confluence are within a riparian willow, greythorn, and buttonbush hackberry, and various willow species corridor occupied by western yellow- (Murray and Gicklhorn 2018, p. 14). in this rare southeastern Arizona billed cuckoos (Service 2013, pp. 349, Surrounding habitat is desert scrub. The ecosystem (National Audubon Society 387). These small parcels are likely largest intact mesquite bosque 2016d, entire). This unit includes within the home range of foraging and community remaining in Arizona is the Patagonia State Park, Sonoita Creek breeding western yellow-billed cuckoos. 14-mi (23-km) reach of the San Pedro State Natural Area, Patagonia-Sonoita Approximately 2,695 ac (1,091 ha) is in River beginning south of San Manuel Creek TNC Preserve, and the Tucson Federal ownership; 2,280 ac (922 ha) is and ending north of Mammoth. Many Audubon Society’s Paton Center for in State ownership; and 17,421 ac (7,050 conservation properties occur in this Hummingbirds. The Patagonia-Sonoita ha) is in other ownership. The unit is unit, most of which were purchased as Creek TNC Preserve IBA lies within this considered to have been occupied at the mitigation for projects that impacted unit, under conservation stewardship by time of listing. This unit is an important riparian resources. They include Pima state parks, TNC, and Tucson Audubon breeding area for western yellow-billed County’s Bingham Cienega in Pima Society (National Audubon Society cuckoos and is consistently occupied by County; SRP’s San Pedro River Preserve, 2016d, entire). a number of pairs during the breeding Spirit Hollow, Adobe Preserve, Unit 19: AZ–17, Upper Cienega Creek; season (Corman and Magill 2000, pp. Stillinger Preserve; Resolution Copper’s Pima County, Arizona. 38–40, 42–44, 49–50; SRP 2005, pp. 7– 7B Ranch, BHP-Biliton property; Critical habitat Unit AZ–17 is 5,204 ac 24; SRP 2011b, pp. 22–37; SRP 2015, p. AGFD’s Lower San Pedro River Wildlife (2,106 ha) in extent and is an 11-mi (18- 29; Andreson 2016b, entire; AGFD 2018, Area, and Reclamation’s Cook’s Lake/ km)-long segment of Cienega Creek. entire; Murray and Gicklhorn 2018, pp. Cienega Seep. BLM property exists Approximately 4,630 ac (1,874 ha) is in 14–15; National Audubon Society along the San Pedro River as well. Federal ownership, and 574 ac (232 ha) 2016h, entire; Reclamation 2019 entire; Conservation partnerships among these is in State ownership. This unit is SRP 2019b, pp. 29–31; Service 2020c, landowners to protect habitat include considered to have been occupied at the entire). We removed a portion of critical the Lower San Pedro Watershed time of listing, and is used by the habitat that was previously identified in Alliance (2014, entire), Lower San Pedro western yellow-billed cuckoo during the the revised proposed rule because Watershed Collaborative, and Lower breeding season (Corman and Magill habitat upstream of Porphyry Gulch on San Pedro Working Group (SRP 2019b, 2000, pp. 38–39, 40, 44, 48; BLM 2010, the Gila River is narrower and patchier p. 37). 2003, entire; AGFD 2018, entire; Cornell than the rest of the unit. In part of the Unit 18: AZ–16 Sonoita Creek; Santa Lab of Ornithology 2020 (eBird data); removed reach, the Gila River flows Cruz County, Arizona. Service 2020c, entire). This unit is part through a narrow canyon with limited Critical habitat Unit AZ–16 is 2,488 ac of the core area as identified in our space for habitat to develop. Several (1,007 ha) in extent and is a 16-mi (26- conservation strategy for designating mitigation conservation properties along km)-long segment of Sonoita Creek from critical habitat for the western yellow- the San Pedro River that support nesting the Town of Patagonia downstream to a billed cuckoo. The unit provides the

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habitat component provided in PBF 1 physical or biological features would Critical habitat Unit AZ–20 is 10,540 and the prey component in PBF 2. not be considered critical habitat. The ac (4,266 ha) in extent and is a 76-mi Hydrologic processes, in natural or site also provides a movement corridor (123-km) long continuous segment of altered systems, that provide for and migratory stop-over habitat for the Gila River in Graham County, maintaining and regenerating breeding western yellow-billed cuckoos. Arizona. This segment extends along the habitat as identified in PBF 3 occur This unit is within the Upper Santa Gila River from east of Safford within this unit but depend on river Cruz IBA, with western yellow-billed downstream to the confluence with the flows and flood timing. This unit also cuckoos identified as a breeding species San Carlos Reservoir. We have excluded provides a movement corridor and (National Audubon Society 2016e, approximately 10,184 ac (4,121 ha) of migratory stop-over habitat for western entire). The Upper Santa Cruz River IBA land from this unit (see Exclusions). yellow-billed cuckoos. This unit is a linear riparian corridor from Several mitigation conservation connects Gardner Canyon (AZ–46) with Tumacacori National Historical Park properties along the Gila River that upper Cienega Creek. BLM’s Las downstream (northward) through the support nesting western yellow-billed Cienegas National Conservation Area, Tucson Audubon Society-held cuckoos were not considered for also designated as the Las Cienegas NCA conservation easement (National exclusion. Approximately 778 ac (315 IBA, includes cienegas (marshlands) Audubon Society 2016e, entire). This ha) is in Federal ownership; 215 ac (87 and cottonwood and willow riparian reach of river has the highest ha) is in State ownership; and 9,547 ac forests, and mesquite bosques bisecting groundwater levels and perennial river (3,863 ha) is in other ownership. This sacaton (Sporobolus sp.) grasslands and flow, primarily treated wastewater, but unit is considered to have been semi-desert grasslands (National with some groundwater seep occupied at the time of listing. Western Audubon Society 2020d, entire). augmentation. The IBA boundaries are yellow-billed cuckoos nest in this unit Unit 20: AZ–18 Santa Cruz River; defined by the cottonwood and willow during the breeding season (Corman and Santa Cruz County, Arizona. riparian vegetation, including the Magill 2000, p. 39; Dockens and Critical habitat Unit AZ–18 is 9,538 ac mesquite bosques that border the Ashbeck 2014, pp. 6–7; SRP 2015; p. 28; (3,860 ha) in extent and is a 27-mi (43- broadleaf gallery forest and elderberry Johnson 2016, entire; AGFD 2018, km)-long segment of the Santa Cruz thickets (Powell 2000, p. 5). The IBA entire; SRP 2019a, pp. 33–62; Service River from the U.S./Mexico border north also includes all the National Historical 2020c, entire). This unit is part of the to the vicinity of the Town of Tubac in Park and Tucson Audubon Society-held core area as identified in our Santa Cruz County, Arizona. We have conservation easement lands. conservation strategy for designating excluded the 60-ft (18-m) Roosevelt Unit 21: AZ–19 Black Draw; Cochise critical habitat for the western yellow- Reservation from this unit (see County, Arizona. billed cuckoo. Part of this unit is within Exclusions). Approximately 505 ac (204 the BLM’s Gila Box Riparian National ha) is in Federal ownership; 4 ac (2 ha) Critical habitat Unit AZ–27 is 1,595 ac Conservation Area, established by is in State ownership; and 9,029 ac (646 ha) in extent. Approximately 891 Congress to conserve, protect, and (3,654 ha) is in other ownership. This ac (360 ha) is in Federal ownership; 134 enhance the riparian values of the area, unit is considered to have been ac (54 ha) is in State ownership; and 570 Mitigation conservation properties along occupied at the time of listing. Western ac (231 ha) is in other ownership. We the Gila River that support nesting yellow-billed cuckoos occupy and nest have excluded the 60-ft (18-m) western yellow-billed cuckoos were not in numerous locations along the Santa Roosevelt Reservation from this unit considered for exclusion at the request Cruz River and tributaries during the (see Exclusions). This unit is considered of the landowners. The unit provides breeding season, including a to have been occupied at the time of the habitat component provided in PBF concentration of nesting yellow-billed listing and is used by the western 1 and the prey component in PBF 2. cuckoos within the Tumacacori area yellow-billed cuckoo during the (Corman and Magill 2000, pp. 14, 39, breeding season (Corman and Magill Hydrologic processes, in natural or 40, 50; Powell 2000, entire; Krebbs and 2000, pp. 39, 50; Radke 2014, pp. 57– altered systems, that provide for Moss 2009, entire; Baril et al. 2019, p. 58, 112; Cajero 2016, entire; Radke 2017, maintaining and regenerating breeding 85; National Audubon Society 2016e, pp. 41–42; AGFD 2018, entire; Cajero habitat as identified in PBF 3 occur entire; Cornell Lab of Ornithology 2020 2018, entire; Radke 2019, pp. 26, 84, 88; within this unit but depend on river (eBird data); Service 2020c, entire). This Radke 2020, pp. 40–41; Service 2020c, flows and flood timing. Altered unit is part of the core area as identified entire). This unit is part of the core area hydrology has caused the introduction in our conservation strategy for as identified in our conservation and spread of nonnative tamarisk designating critical habitat for the strategy for designating critical habitat resulting in reduced quality of riparian western yellow-billed cuckoo. The unit for the western yellow-billed cuckoo. habitat. Although tamarisk is not as provides the habitat component The unit provides the habitat desirable as native habitat, it may provided in PBF 1 and the prey component provided in PBF 1 and the contribute toward habitat suitability in component in PBF 2. Hydrologic prey component in PBF 2. Hydrologic areas where the native tree density can processes, in natural or altered systems, processes, in natural or altered systems, no longer be sustained. The site also that provide for maintaining and that provide for maintaining and provides a movement corridor and regenerating breeding habitat as regenerating breeding habitat as migratory stop-over habitat for western identified in PBF 3 occur within this identified in PBF 3 occur within this yellow-billed cuckoos. unit but depend on river flows and unit but depend on river flows and Suitable habitat varies from multi- flood timing. Some portions of the unit flood timing. The site also provides a storied cottonwood and Goodding’s are considered disturbed and may not movement corridor and migratory stop- willow dominated habitat with large contain all the physical or biological over habitat for western yellow-billed patches of coyote willow along the features essential to the conservation of cuckoos. Habitat is primarily stream edges to mixed tamarisk/native the species, but due to our mapping cottonwood, Goodding’s willow, and habitat with fewer cottonwood and constraints, some of these areas were some mesquite (Cajero 2016, entire). willows (SRP 2019a, p. 62). Western left within the boundaries of the unit. Unit 22: AZ–20, Gila River 1; Graham yellow-billed cuckoo presence and These disturbed areas not containing the County, Arizona. density varies, depending on habitat

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quality. Patches of unsuitable tamarisk (Corman and Magill 2000, p. 48; Powell long continuous segment of Pinto Creek dominated habitat are interspersed 2013, entire; Murray and Gicklhorn in Gila and Pinal Counties, Arizona. within this unit. 2018, pp. 11–13; AGFD 2018, entire; Approximately 368 ac (149 ha) is in Unit 23: AZ–21 Salt River; Gila National Audubon Society 2013a, Federal ownership, and 5 ac (2 ha) is in County, Arizona. entire; Cornell Lab of Ornithology 2020 other ownership. This unit is Critical habitat unit AZ–21 is 581 ac (eBird data)). This unit is part of the considered to have been occupied at the (235 ha) in extent and is a 5-mi (8-km)- core area as identified in our time of listing (Corman and Magill 2000, long continuous segment of the Salt conservation strategy for designating pp. 38, 42, AGFD 2018, entire; River ending at the 2,151-ft (656-m) critical habitat for the western yellow- WestLand Resources, Inc. 2019, entire; elevation line, which represents the billed cuckoo. The unit provides the Cornell Lab of Ornithology 2020 (eBird lakebed at Theodore Roosevelt Lake in habitat component provided in PBF 1 data); Service 2020c, entire). This unit is Gila County, Arizona. We have and the prey component in PBF 2. part of the core area as identified in our excluded approximately 2,009 ac (813 Hydrologic processes, in natural or conservation strategy for designating ha) of land from this unit (see altered systems, that provide for critical habitat for the western yellow- Exclusions). Approximately 502 ac (203 maintaining and regenerating breeding billed cuckoo. The unit provides the ha) of this unit is Federal ownership, habitat as identified in PBF 3 occur habitat component provided in PBF 1 and 79 ac (32 ha) is in other ownership. within this unit but depend on river and the prey component in PBF 2. This unit is considered to have been flows and flood timing. The site also Hydrologic processes, in natural or occupied at the time of listing. Western provides a movement corridor between altered systems, that provide for yellow-billed cuckoos occupy and nest larger habitat patches. Habitat consists maintaining and regenerating breeding in this unit during the breeding season of cottonwood, Goodding’s willow, ash, habitat as identified in PBF 3 occur (Corman and Magill 2000, p. 38, 50; hackberry, and mesquite in reaches of within this unit but depend on river Johnson et al. 2004, 2005, 2006, 2007, perennial water. Tamarisk is widely flows and flood timing. Altered entire; SRP 2005, p. 5; SRP 2017b, p. 28; scattered and relatively rare (Powell hydrology has caused the introduction AGFD 2018, entire; Cornell Lab of 2013, p. 12). Altered hydrology has and spread of nonnative tamarisk Ornithology 2020 (eBird data)). This caused the introduction and spread of resulting in reduced quality of riparian unit is part of the core area as identified nonnative tamarisk resulting in reduced habitat. Although tamarisk is not as in our conservation strategy for quality of riparian habitat. Although desirable as native habitat, it may designating critical habitat for the tamarisk is not as desirable as native contribute toward habitat suitability in western yellow-billed cuckoo. The unit habitat, it may contribute toward habitat areas where the native tree density can provides the habitat component suitability in areas where the native tree no longer be sustained. Habitat is mostly provided in PBF 1 and the prey density can no longer be sustained. native broadleaf plants, with an component in PBF 2. Hydrologic Unit 25: AZ–23 Blue River, Greenlee overstory of cottonwood, Goodding’s processes, in natural or altered systems, County, Arizona. willow, and sycamore and an that provide for maintaining and Critical habitat unit AZ–23 is 1,025 ac understory of ash and cottonwood regenerating breeding habitat as (415 ha) in extent and is an 8-mi (13- (WestLand Resources, Inc. 2019, entire). identified in PBF 3 occur within this km)-long continuous segment of the Unit 27: AZ–25 Aravaipa Creek; Pinal unit but depend on river flows and Blue River in Greenlee County, Arizona. and Graham Counties, Arizona. flood timing. Habitat consists of The entire unit is in Federal ownership Critical habitat Unit AZ–25 is 2,937 ac primarily of tamarisk, mesquite, and located on the Apache Sitgreaves (1,189 ha) in extent and is a 28-mi (46- willow. The site also provides a National Forest managed by the USFS. km)-long continuous segment of movement corridor between larger This unit is considered to have been Aravaipa Creek extending from the habitat patches. Altered hydrology has occupied at the time of listing. Western confluence of Aravaipa Creek and the caused the introduction and spread of yellow-billed cuckoos occupy this site San Pedro River in Pinal and Graham nonnative tamarisk resulting in reduced (AGFD 2018, entire; Corman and Magill Counties, Arizona. In addition, this unit quality of riparian habitat. Although 2000, pp. 14, 38–39, 44; Reclamation includes approximately 3-mi (4-km) of tamarisk is not as desirable as native 2020b, p. 6.1.2). This unit is part of the the Turkey Creek tributary on the habitat, it may contribute toward habitat Blue and San Francisco Rivers IBA eastern end of the Unit. We have suitability in areas where the native tree (National Audubon Society 2020c, excluded approximately 392 ac (159 ha) density can no longer be sustained. entire). This unit is part of the core area of San Carlos Apache tribal land from Tamarisk is a component of habitat in as identified in our conservation this unit (see Exclusions). this unit and may provide understory or strategy for designating critical habitat Approximately 622 ac (252 ha) is in nesting habitat for the western yellow- for the western yellow-billed cuckoo. Federal ownership; 116 ac (47 ha) is in billed cuckoo. The unit provides the habitat State ownership; and 2,199 ac (890 ha) Unit 24: AZ–22 Lower Cienega Creek, component provided in PBF 1 and the is in other ownership. This unit Pima County, Arizona. prey component in PBF 2. Hydrologic includes BLM’s Aravaipa Canyon Critical habitat unit AZ–22 is 2,360 ac processes, in natural or altered systems, Wilderness Area and TNC’s Aravaipa (955 ha) in extent and is an 11-mi (18- that provide for maintaining and Canyon Preserve. This unit is km)-long continuous segment of Cienega regenerating breeding habitat as considered to have been occupied at the Creek about 15 mi (24 km) southeast of identified in PBF 3 occur within this time of listing. Western yellow-billed Tucson in Pima County, Arizona. unit but depend on river flows and cuckoos occupy and nest in this unit Approximately 759 ac (307 ha) are State flood timing. Riparian habitat is during the breeding season within this lands and 1,601 ac (648 ha) is in other dominated by cottonwood, willow, unit (Corman and Magill 2000, pp. 41– ownership. This unit is considered to alder, and sycamore. Walnut, mesquite, 43; AGFD 2018, entire; Cornell Lab of have been occupied at the time of oak and juniper may also be present. Ornithology 2020 (eBird data)). This listing. Western yellow-billed cuckoos Unit 26: AZ–24 Pinto Creek South, unit is part of the core area as identified occupy and nest in Pima County’s Gila and Pinal Counties, Arizona. in our conservation strategy for Cienega Creek Natural Preserve Critical habitat unit AZ–24 is 373 ac designating critical habitat for the regularly during the breeding season (151 ha) in extent and is a 4-mi (6-km)- western yellow-billed cuckoo. Habitat is

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mixed broadleaf riparian forest in this unit in several locations on the Hydrologic processes, in natural or composed of cottonwood, willow, Gila River and Eagle Creek during the altered systems, that provide for walnut, alder, and sycamore trees (TNC breeding season (WestLand Resources, maintaining and regenerating breeding 2020, entire). The unit provides the Inc. 2015e, entire; Andreson 2016a, habitat as identified in PBF 3 occur habitat component provided in PBF 1 entire; Johnson 2016, entire; AGFD within this unit but depend on river and the prey component in PBF 2. 2018, entire; Cornell Lab of Ornithology flows and flood timing. The site also Hydrologic processes, in natural or 2020 (eBird data); Service 2020c, entire). provides migration stop-over habitat. altered systems, that provide for This unit is part of the core area as Altered hydrology has caused the maintaining and regenerating breeding identified in our conservation strategy introduction and spread of nonnative habitat as identified in PBF 3 occur for designating critical habitat for the tamarisk resulting in reduced quality of within this unit but depend on river western yellow-billed cuckoo. The unit riparian habitat. Although tamarisk is flows and flood timing. The site also provides the habitat component not as desirable as native habitat, it may provides a movement corridor and provided in PBF 1 and the prey contribute toward habitat suitability in migratory stop-over habitat for western component in PBF 2. Hydrologic areas where the native tree density can yellow-billed cuckoos. processes, in natural or altered systems, no longer be sustained. Habitat has Patches and stringers of cottonwood- that provide for maintaining and declined in recent years due to drought willow riparian forest and adjacent regenerating breeding habitat as and water withdrawal. Habitat consists mesquite bosque exist throughout identified in PBF 3 occur within this of Goodding’s willow, cottonwood, ash, Aravaipa Canyon. This drainage unit but depend on river flows and alder, sycamore, hackberry and some experiences scouring flood flows that flood timing. The site also provides a tamarisk. Large mesquite trees are can result in shifting suitable habitat movement corridor and migratory stop- adjacent to the riparian habitat (Service within the floodplain. Including the over habitat for western yellow-billed 2020c, entire). entire Aravaipa Canyon ensures that if cuckoos. Unit 30: AZ–28 Mineral Creek; Pinal suitable habitat shifts, it will remain Riparian habitat in overstory and and Gila Counties, Arizona. within critical habitat. Connecting this understory along one survey reach in Critical habitat Unit AZ–28 is 380 ac unit to the San Pedro River units (AZ– Eagle Creek is primarily cottonwood (154 ha) in extent and is a 7-mi (11-km)- 14 and AZ–15) by including the and sycamore (Westland Resources, Inc. long continuous segment of Mineral confluence with the San Pedro River 2019, entire). Lower Eagle Creek Creek in Pinal and Gila Counties, strengthens the conservation value of includes cottonwood, willow, ash, and Arizona. Approximately 1 ac (<1 ha) is both units by linking breeding, mesquite bosque habitat where western in Federal ownership; 198 ac (80 ha) is migration, and dispersal corridors. yellow-billed cuckoos have been in State ownership; and 180 ac (73 ha) Altered hydrology caused the documented during the breeding season. is in other ownership. This unit is introduction and spread of nonnative Although narrow and patchy in some considered to have been occupied at the tamarisk resulting in reduced quality of reaches of the eastern part of this unit time of listing and is used by the riparian habitat. Although tamarisk is on the Gila River, habitat is primarily western yellow-billed cuckoo during the not as desirable as native habitat, it cottonwood and willow, with less breeding season (WestLand Resources, contributes toward habitat suitability in tamarisk than farther downstream Inc. 2019, entire). The southern end of areas where the native tree density can (Johnson 2016, entire). Altered Mineral Creek, which is not included in no longer be sustained. hydrology has caused the introduction the proposal, empties into a reservoir Unit 28: AZ–26, Gila River 2; Graham and spread of nonnative tamarisk owned by American Smelting And and Greenlee Counties, Arizona. resulting in reduced quality of riparian Refining Company (ASARCO). This unit Critical habitat Unit AZ–26 is 5,836 ac habitat. Although tamarisk is not as is part of the core area as identified in (2,362 ha) in extent and is a continuous desirable as native habitat, it may our conservation strategy for designating segment of the Gila River and contribute toward habitat suitability in critical habitat for the western yellow- continuous segment of Eagle Creek in areas where the native tree density can billed cuckoo. The unit provides the Graham and Greenlee Counties, no longer be sustained. habitat component provided in PBF 1 Arizona. Eagle Creek, a tributary to the Unit 29: AZ–27 Pinto Creek North; and the prey component in PBF 2. Gila River, straddles the eastern Gila County, Arizona. Hydrologic processes, in natural or boundary of San Carlos Apache Critical habitat unit AZ–27 is 427 ac altered systems, that provide for Reservation and meanders in and out of (173 ha) in extent and is a 6-mi (10-km)- maintaining and regenerating breeding private, State, tribal, and Federal lands. long continuous segment of Pinto Creek, habitat as identified in PBF 3 occur Also included in this unit is a small located approximately 7 mi (11 km) within this unit but depend on river portion of the San Francisco River at the upstream of Roosevelt Lake in Gila flows and flood timing. The site also confluence with the Gila River in County, Arizona. Approximately 415 ac provides a movement corridor and Graham and Greenlee Counties, (168 ha) is in Federal ownership, and 12 migratory stop-over habitat for western Arizona. We have excluded ac (5 ha) is in other ownership. This yellow-billed cuckoos. Mineral Creek approximately 2,753 ac (1,114 ha) of unit is considered to have been provides suitable habitat for western land from this unit (see Exclusions). occupied at the time of listing and is yellow-billed cuckoos along most of the Approximately 1,895 ac (767 ha) is in used by the western yellow-billed surveyed reach, consisting mostly of Federal ownership; 204 ac (83 ha) is in cuckoo during the breeding season ash, with willow, cottonwood, and State ownership; and 3,736 ac (1,512 ha) AGFD 2018, entire; Cornell Lab of sycamore (Westland Resources, Inc. is in other ownership. Part of this unit Ornithology 2020 (eBird data); Service 2019, entire). is within the BLM’s Gila Box Riparian 2020, entire). This unit is part of the Unit 31: AZ–29 Big Sandy River; National Conservation Area, established core area as identified in our Mohave County, Arizona. by Congress to conserve, protect, and conservation strategy for designating Critical habitat within Unit AZ–29 enhance the riparian values of the area. critical habitat for the western yellow- totals approximately 4,236 ac (1,714 ha) This unit is considered to have been billed cuckoo. The unit provides the in extent. We have excluded occupied at the time of listing. Western habitat component provided in PBF 1 approximately 500 ac (202 ha) of land yellow-billed cuckoos occupy and nest and the prey component in PBF 2. from this unit (see Exclusions (Alamo

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Lake Wildlife Area)). We also removed contribute toward habitat suitability in conservation strategy for designating additional areas from this unit due to areas where the native tree density can critical habitat for the western yellow- either not containing the PBFs or not no longer be sustained. billed cuckoo. The unit provides the meeting our criteria for designation. Unit 32: NM–1 San Francisco River; habitat component provided in PBF 1 Approximately 1,291 ac (522 ha) is in Catron County, New Mexico. and the prey component in PBF 2. Federal ownership and 2,945 ac (1,192 Critical habitat unit NM–1 is 2,039 ac Hydrologic processes, in natural or ha) is in other ownership. Based on (825 ha) in extent and is a 10-mi (16- altered systems, that provide for survey data, descriptions of habitat, and km)-long continuous segment of the San maintaining and regenerating breeding lack of information, we have removed Francisco River near the Town of habitat as identified in PBF 3 occur parts of this unit from critical habitat Glenwood in Catron County, New within this unit but depend on river designation. Areas removed were more Mexico. This segment includes 1.2 mi (2 flows and flood timing. The site also arid and or in narrow canyons than the km) portion of Whitewater Creek from provides migratory stop-over habitat for remaining portion of the unit. This unit the confluence of the San Francisco western yellow-billed cuckoos moving is considered to have been occupied at River near the Town of Glenwood. farther north. Altered hydrology has the time of listing and western yellow- Approximately 738 ac (299 ha) is in caused the introduction and spread of billed cuckoos occupy this site during Federal ownership; 10 ac (4 ha) is in nonnative tamarisk resulting in reduced the breeding season (Magill et al. 2005, State ownership; and 1,291 ac (522 ha) quality of riparian habitat. Although p. 8; Dockens et al. 2006, p. 7; is in other ownership. This unit is tamarisk is not as desirable as native O’Donnell et al. 2016, pp. 1, 6, 21). This considered to have been occupied at the habitat, it may contribute toward habitat unit is part of the core area as identified time of listing and is used by the suitability in areas where the native tree in our conservation strategy for western yellow-billed cuckoo during the density can no longer be sustained. designating critical habitat for the breeding season. The unit provides the Tamarisk is a component of habitat in western yellow-billed cuckoo. The unit habitat component provided in PBF 1 this unit and may provide understory or provides the habitat component and the prey component in PBF 2. nesting habitat for the western yellow- provided in PBF 1 and the prey Hydrologic processes, in natural or billed cuckoo. component in PBF 2. Hydrologic altered systems, that provide for Unit 34: NM–3A and NM–3B processes, in natural or altered systems, maintaining and regenerating breeding Mimbres River; Grant County, New that provide for maintaining and habitat as identified in PBF 3 occur Mexico. regenerating breeding habitat as within this unit but depend on river Critical habitat Unit NM–3 is 544 ac identified in PBF 3 occur within this flows and flood timing. The site also (220 ha) in extent (NM–3A 260 ac (105 unit but depend on river flows and provides migratory stop-over habitat for ha); NM–3B 284 ac (115 ha)). The unit western yellow-billed cuckoos moving is made up of two segments totaling flood timing. Following heavy farther north. Tamarisk is a component approximately 7.4 mi (11.9 km) of the streamflow, the amount of regenerating of habitat in this unit and may provide Mimbres River north of the town of habitat that develops along the Big understory or nesting habitat for the Mimbres in Grant County, New Mexico. Sandy River at the inflow to Alamo Lake western yellow-billed cuckoo. This unit The entire proposed Unit NM–3 is is influenced by the length of time and is part of the core area as identified in privately owned. This unit is considered the amount of water that is backed up our conservation strategy for designating to have been occupied at the time of behind the dam. The site also provides critical habitat for the western yellow- listing and id used by western yellow- a movement corridor and migratory billed cuckoo. Altered hydrology has billed cuckoo during the breeding stop-over habitat for western yellow- caused the introduction and spread of season. This unit is part of the core area billed cuckoos. nonnative tamarisk resulting in reduced as identified in our conservation The Big Sandy River has flows that quality of riparian habitat. Although strategy for designating critical habitat are spatially and temporally tamarisk is not as desirable as native for the western yellow-billed cuckoo. intermittent. However, in the vicinity of habitat, it may contribute toward habitat The two areas provide the habitat US 93, the river is perennial and suitability in areas where the native tree components in PBF 1 and the prey supports a dense riparian woodland of density can no longer be sustained. component in PBF 2. Hydrologic tamarisk, cottonwood, and Goodding’s Unit 33: NM–2 Gila River; Grant processes, in natural or altered systems, willow, bordered and interspersed with County, New Mexico. that provide for maintaining and mesquite (Magill et al. 2005, pp. 1, 5). Critical habitat unit NM–2 is 3,036 ac regenerating breeding habitat as Within the floodplain, seep willow, (1,228 ha) in extent and is a 24-mi (37- identified in PBF 3 occur within this arrowweed (Pluchea sericea), and km)-long continuous segment of the Gila unit but depend on river flows and screw-bean mesquite (Prosopis River from 10 mi (16 km) downstream flood timing. Habitat is composed of pubescens) are also common. Adjacent from the town of Cliff to 10 mi (16 km) mainly cottonwood, Goodding’s willow upland habitat in the area is Arizona upstream of the town of Gila in Grant and boxelder. Upland Subdivision of Sonoran County, New Mexico. We have excluded Unit 35: NM–4 Upper Rio Grande 1; Desertscrub dominated by foothills approximately 1,142 ac (381 ha) of land Rio Arriba County, New Mexico. paloverde (Circidium floridium), mixed from this unit (see Exclusions). Critical habitat unit NM–4 is 518 ac cacti, and creosote bush (Larrea Approximately 974 ac (394 ha) is in (210 ha) in extent and is a 10-mi (16- tridentata) (Magill et al. 2005, p. 5). Federal ownership; 194 ac (78 ha) is in km)-long continuous segment of the Western yellow-billed cuckoos were State ownership; and 1,867 ac (756 ha) upper Rio Grande from Ohkay Owingeh found in cottonwood, willow, or the is in other ownership. This unit is to near Alcalde in Rio Arriba County, adjacent mesquite (Magill et al. 2005, p. considered to have been occupied at the New Mexico. We have excluded 8; Dockens et al. 2006, p. 7). Altered time of listing and is consistently used approximately 1,312 ac (513 ha) of land hydrology has caused the introduction by a large number of western yellow- from this unit (see Exclusions). The and spread of nonnative tamarisk billed cuckoos during the breeding entire area is in private ownership. This resulting in reduced quality of riparian season and is an important breeding unit is considered to have been habitat. Although tamarisk is not as location for the species. This unit is part occupied at the time of listing and is desirable as native habitat, it may of the core area as identified in our used by the western yellow-billed

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cuckoo during the breeding season. This cuckoos during the breeding season area of Caballo Reservoir east of the unit is part of the core area as identified north of Mexico. This unit is part of the town of Caballo, within Sierra County, in our conservation strategy for core area as identified in our New Mexico. We have excluded the designating critical habitat for the conservation strategy for designating entire Unit 39 (NM–8A and NM–8B) western yellow-billed cuckoo. The unit critical habitat for the western yellow- from the final designation (see provides the habitat component billed cuckoo. The unit provides the Exclusions). A description and map of provided in PBF 1 and the prey habitat component provided in PBF 1 this unit is maintained in supporting component in PBF 2. Hydrologic and the prey component in PBF 2. information for this designation (Service processes, in natural or altered systems, Hydrologic processes, in natural or 2020b, entire). that provide for maintaining and altered systems, that provide for Unit 40: NM–9 Animas; Sierra regenerating breeding habitat as maintaining and regenerating breeding County, New Mexico. identified in PBF 3 occur within this habitat as identified in PBF 3 occur Critical habitat unit NM–9 is 608 ac unit but depend on river flows and within this unit but depend on river (246 ha) in extent and is located on a 6- flood timing. The site also provides a flows and flood timing. The site also mi (10-km)-long continuous segment of movement corridor for western yellow- provides a movement corridor for Las Animas Creek west of the town of billed cuckoos moving farther north. western yellow-billed cuckoos. Altered Caballo, within Sierra County, New Altered hydrology has caused the hydrology has resulted in the Mexico. We have excluded the entire introduction and spread of nonnative establishment of tamarisk. Tamarisk is unit from the final designation (see tamarisk resulting in reduced quality of being used by western yellow-billed Exclusions). A description and map of riparian habitat. Although tamarisk is cuckoos during the breeding season in this unit is maintained in supporting not as desirable as native habitat, it may this unit and may provide important information for this designation (Service contribute toward habitat suitability in understory habitat (Sechrist et al. 2009, 2020b, entire). areas where the native tree density can p. 55). Unit 41: NM–10 Selden Canyon and no longer be sustained. Tamarisk is a Unit 38: NM–7, Upper Gila River; Radium Springs; Don˜ a Ana County, component of habitat in this unit and Hidalgo and Grant Counties, New New Mexico. may provide understory or nesting Mexico. Critical habitat unit NM–10 is 237 ac habitat for the western yellow-billed Critical habitat Unit NM–7 is 4,727 ac (96 ha) in extent and is a 12.5-mi (20- cuckoo. (1,913 ha) in size and extends in a 30- km)-long continuous segment of river in Unit 36: NM–5 Upper Rio Grande 2; mi (48-km)-long continuous segment of Don˜ a Ana County, New Mexico. It is Santa Fe and Rio Arriba Counties, New the Gila River from the Arizona-New located on a continuous segment of Mexico. Mexico border 5 mi (8 km) downstream habitat northwest of the town of Radium Critical habitat unit NM–5 was from Virden in Hidalgo County Springs, within Don˜ a Ana County, New proposed as 1,173 ac (475 ha) in extent upstream to 8 mi (13 km) upstream from Mexico. We have excluded the entire and comprised of a 6-mi (10-km)-long Red Rock in Grant County, New Mexico. unit from the final designation (see continuous segment of the Upper Rio Approximately 1,086 ac (439 ha) is in Exclusions). A description and map of Grande starting from the Highway 502 Federal ownership; 188 ac (76 ha) is in this unit is maintained in supporting Bridge at the south end of the San State ownership; and 3,453 ac (1,397 ha) information for this designation (Service Ildefonso Pueblo upstream to a point on is in other ownership. The unit is 2020b, entire). the river in Rio Arriba County, New considered to have been occupied at the Unit 42: AZ–30 Arivaca Wash and Mexico. We have excluded the entire time of listing. This site is consistently San Luis Wash; Pima County, Arizona. unit from the final designation (see occupied by numerous pairs of western Critical habitat unit AZ–30 is 5,765 ac Exclusions). A description and map of yellow-billed cuckoos during the (2,333 ha) in extent and is made up of this unit is maintained in supporting breeding season. This unit is part of the two washes that join to form a 17-mi information for this designation (Service core area as identified in our (27-km)-long continuous segment that 2020b, entire). conservation strategy for designating comprises 9 mi (15 km) of Arivaca Wash Unit 37: NM–6A and NM–6B Middle critical habitat for the western yellow- and 8 mi (13 km) of San Luis Wash. The Rio Grande; Sierra, Socorro, Valencia, billed cuckoo. The unit provides the unit is located about 10 mi (16 km) Bernalillo, and Sandoval Counties, New habitat component provided in PBF 1 north of the border of Mexico near the Mexico. and the prey component in PBF 2. Town of Arivaca in Pima County, Critical habitat Unit NM–6 is made up Hydrologic processes, in natural or Arizona. Approximately 4,662 ac (1,887 of two areas: NM–6A and NM–6B. NM– altered systems, that provide for ha) is in Federal ownership; 89 ac (36 6A has been entirely excluded from the maintaining and regenerating breeding ha) is in State ownership; and 1,014 ac final designation (see Exclusions). A habitat as identified in PBF 3 occur (410 ha) is in other ownership. Most of description and map of Unit NM–6A is within this unit but depend on river this unit is located on the Buenos Aries maintained in supporting information flows and flood timing. The unit also National Wildlife Refuge. The unit is for this designation (Service 2020b, provides connecting habitat between the considered to have been occupied at the entire). NM–6B contains 46,595 ac Upper and Lower Gila River and a time of listing. This unit is consistently (18,856 ha) along the Rio Grande movement corridor and migratory stop- occupied by numerous nesting western upstream of Elephant Butte Reservoir in over habitat for western yellow-billed yellow-billed cuckoos during the Socorro and Valencia Counties, New cuckoos. Tamarisk is a component of breeding season (Corman and Magill Mexico. Within Unit 37 NM–6B habitat in this unit and may provide 2000, pp. 39, 42–43, 47; Griffin 2015, approximately 8,651 ac (3,501 ha) is in understory or nesting habitat for the entire; AGFD 2018, entire; Cornell Lab Federal ownership; 13,064 ac (5,287 ha) western yellow-billed cuckoo. of Ornithology (2020, entire). This unit is in State ownership; and 24,879 ac Unit 39: NM–8A Caballo Delta North is part of the area within the Southwest (10,068 ha) is in other ownership. This and NM–8B Caballo Delta South; Sierra portion of the DPS that provides unit is considered to have been County, New Mexico. breeding habitat for the western yellow- occupied at the time of listing and is Critical habitat unit NM–8 is made up billed cuckoo, which is outside consistently occupied by the largest of two areas (NM–8A 190 ac (77 ha) and mainstem rivers and their tributaries as number of western yellow-billed NM–8B 155 ac (63 ha)) within the delta identified in our conservation strategy.

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The unit provides the habitat migratory stop-over habitat for western cuckoos occupy and nest in this unit component provided in PBF 1 and the yellow-billed cuckoos. during the breeding season (Corman and prey component in PBF 2. Hydrologic This unit is within the Santa Rita Magill 2000, p. 51; MacFarland and processes, in natural or altered systems, Mountains IBA (National Audubon Horst 2015, pp. 5, 25–26; AGFD 2018, that provide for maintaining and Society 2016f, entire), one of the sky entire; Sferra et al. 2019, pp. 5, 9; regenerating breeding habitat as islands of southeastern Arizona with Cornell Lab of Ornithology 2020 (eBird identified in PBF 3 occurs within this transitional elevational gradients of data)). This unit is part of the area unit (monsoonal events). The western forest, oak woodland, grassland, and within the Southwest portion of the DPS yellow-billed cuckoo breeding riparian habitat. Vegetation in occupied that provides breeding habitat for the population on the refuge occurs not habitat is primarily oak, hackberry, and western yellow-billed cuckoo, which is only within this unit, but in the Brown mesquite, with some acacia, sycamore, outside mainstem rivers and their Canyon unit and in other drainages not ocotillo (Fouquieria splendens), and tributaries as identified in our included as critical habitat. Ephemeral, juniper along with various other conservation strategy. The site also intermittent, and perennial riparian midstory and understory plant species provides a movement corridor and drainages intersect grassland, mesquite (MacFarland and Horst 2015, pp. 124, migratory stop-over habitat for western woodlands, Madrean evergreen 129, 134; Service 2020c, entire). yellow-billed cuckoos. woodland, and scrub habitat across the Unit 44: AZ–32 California Gulch; The unit provides the habitat refuge (Griffin 2015, pp. 1, 28; Corson Santa Cruz County, Arizona. component provided in PBF 1 and the 2018, entire). The site also provides a Critical habitat Unit AZ–32 is 558 ac prey component in PBF 2. Hydrologic movement corridor between larger (226 ha) in extent and is a 7-mi (11-km)- processes, in natural or altered systems, habitat patches. Within this unit, habitat long continuous segment along that provide for maintaining and consists of cienega marsh, cattail- California Gulch in Santa Cruz County, regenerating breeding habitat as bulrush pond, cottonwood and willow Arizona. Approximately 376 ac (152 ha) identified in PBF 3 occurs within this riparian forest mixed with ash and is in Federal ownership, and 181 ac (73 unit (monsoonal events). Occupied ha) is in other ownership. We have hackberry, upland mesquite woodland, habitat includes riparian and Madrean excluded the 60-ft (18-m) Roosevelt bottomland mesquite-herbaceous evergreen woodland vegetation Reservation from this unit (see woodland mesquite-hackberry including oak, mesquite, ash, and Exclusions). The unit is considered to woodland, native grassland, and juniper (MacFarland and Horst 2015, p. have been occupied at the time of disturbed herbaceous areas (Griffin 124). This unit is contained within the listing. Western yellow-billed cuckoos 2015, pp. 10–13).Walnut, Mexican Atascosa Mountains IBA, with western occupy and nest in this drainage elderberry, desert willow, and mesquite yellow-billed cuckoos identified as one regularly during the breeding season occur as small trees in the understory in of the breeding birds (Arizona IBA (Sferra et al. 2019, pp. 5, 6, 9; Cornell some areas. Small seeps and springs are 2020a, entire). Lab of Ornithology 2020 (eBird data)). Unit 46: AZ–34 Madera Canyon; Pima also present in this complex. This unit is part of the area within the and Santa Cruz Counties, Arizona. Unit 43: AZ–31 Florida Wash; Pima Southwest portion of the DPS that Critical habitat Unit AZ–34 is 1,732 ac and Santa Cruz Counties, Arizona. provides breeding habitat for the (701 ha) in extent and is a 7-mi (11-km)- Critical habitat Unit AZ–31 is 747 ac western yellow-billed cuckoo, which is long continuous segment of Madera (302 ha) in extent and is a 6-mi (10-km)- outside mainstem rivers and their Canyon in Pima and Santa Cruz long continuous segment of Florida tributaries as identified in our Counties, Arizona. Approximately 1,419 Wash and tributaries in Pima and Santa conservation strategy. The unit provides ac (574 ha) is in Federal ownership, and Cruz Counties, Arizona. Approximately the habitat component provided in PBF 313 ac (127 ha) is in other ownership. 449 ac (182 ha) is in Federal ownership; 1 and the prey component in PBF 2. The unit is considered to have been 255 ac (103 ha) is in State ownership; Hydrologic processes, in natural or occupied at the time of listing. Western and 43 ac (17 ha) is in other ownership. altered systems, that provide for yellow-billed cuckoos occupy and nest This unit is considered to have been maintaining and regenerating breeding in this unit during the breeding season occupied at the time of listing and habitat as identified in PBF 3 occurs (MacFarland and Horst 2015, pp. 99– occupy and nest in this unit during the within this unit (monsoonal events). 100; AGFD 2018, entire; Cornell Lab of breeding season (MacFarland and Horst The site also provides a movement Ornithology 2020 (eBird data); Drost et 2015, pp. 101–102, 185–186; corridor and migratory stop-over habitat al. 2020, pp. 33, 36). This unit is part MacFarland and Horst 2017, pp. 57–58; for western yellow-billed cuckoos. This of the area within the Southwest portion AGFD 2018, entire; Cornell Lab of unit is within the Atascosa Mountains of the DPS that provides breeding Ornithology 2020 (eBird data)); Drost et IBA in one of the sky islands (Arizona habitat for the western yellow-billed al. 2020, pp. 13, 33, 35). This unit is part IBA 2020a; entire). The habitat is cuckoo, which is outside mainstem of the area within the Southwest portion Sonoran desert scrub, Madrean rivers and their tributaries as identified of the DPS that provides breeding evergreen woodland, semi-desert in our conservation strategy. The unit habitat for the western yellow-billed grassland, and low-elevation riparian. provides the habitat component cuckoo, which is outside mainstem Unit 45: AZ–33 Sycamore Canyon; provided in PBF 1 and the prey rivers and their tributaries as identified Santa Cruz County, Arizona. component in PBF 2. Hydrologic in our conservation strategy. The unit Critical habitat Unit AZ–33 is 601 ac processes, in natural or altered systems, provides the habitat component (243 ha) in extent and is an 8-mi (11- that provide for maintaining and provided in PBF 1 and the prey km)-long continuous segment along regenerating breeding habitat as component in PBF 2. Hydrologic Sycamore Canyon in Santa Cruz County, identified in PBF 3 occurs within this processes, in natural or altered systems, Arizona. The entire unit is in Federal unit (monsoonal events). The site also that provide for maintaining and ownership. We have excluded the 60-ft provides a movement corridor and regenerating breeding habitat as (18-m) Roosevelt Reservation from this migratory stop-over habitat for western identified in PBF 3 occurs within this unit (see Exclusions). The unit is yellow-billed cuckoos. The drainage unit (monsoonal events). The site also considered to have been occupied at the includes riparian, desert scrub, and provides a movement corridor and time of listing and western yellow-billed Madrean evergreen woodland

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vegetation. This unit is within the Santa billed cuckoos occupy and nest in the during the breeding season (Corman and Rita Mountains IBA (National Audubon drainages within this unit along 2.2 mi Magill 2000, p. 43; AGFD 2018, entire; Society 2016f, entire), one of the sky (3.5 km) of Harshaw Creek, along 2.1 mi Cornell Lab of Ornithology 2020 (eBird islands in southeastern Arizona. (3.3 km) of Corral Canyon, and along 1.4 data); Drost et al. 2020, pp. 31, 34; Overstory vegetation consists of mi (2.2 km) of Hermosa Canyon (AGFD National Audubon Society 2020b, mesquite, oak, juniper, cottonwood, 2018, entire; WestLand Resources, Inc. entire; Service 2020c, entire). The unit hackberry, and sycamore with some 2019, entire; Cornell Lab of Ornithology provides the habitat component walnut and ash (MacFarland and Horst 2020 (eBird data); Drost et al. 2020, pp. provided in PBF 1 and the prey 2015, pp. 124–125; Service 2020c, 31, 35). This unit was considered component in PBF 2. Hydrologic entire). occupied at the time of listing and processes, in natural or altered systems, Unit 47: AZ–35 Montosa Canyon; western yellow-billed cuckoos occupy that provide for maintaining and Santa Cruz County, Arizona. Harshaw Creek and an unnamed regenerating breeding habitat as Critical habitat Unit AZ–35 is 499 ac tributary, Hermosa Creek, Goldbaum identified in PBF 3 occurs within this (202 ha) in extent and is a 4-mi (6-km)- Creek, Corral Canyon and two unnamed unit (monsoonal events). This unit is long continuous segment of Montosa tributaries, and Willow Springs Canyon part of the area within the Southwest Canyon in Santa Cruz County, Arizona. (WestLand Resources, Inc. 2019, entire). portion of the DPS that provides Approximately 496 ac (201 ha) is in This unit is part of the area within the breeding habitat for the western yellow- Federal ownership, and 3 ac (1 ha) is in Southwest portion of the DPS that billed cuckoo, which is outside other ownership. The unit is considered provides breeding habitat for the mainstem rivers and their tributaries as to have been occupied at the time of western yellow-billed cuckoo, which is identified in our conservation strategy. listing and western yellow-billed outside mainstem rivers and their The site also provides a movement cuckoos occupy and nest in this unit tributaries as identified in our corridor and migratory stop-over habitat during the breeding season (MacFarland conservation strategy. The unit provides for western yellow-billed cuckoos. Part and Horst 2015, pp. 103–104; Cornell the habitat component provided in PBF of this unit overlaps with the Appleton- Lab of Ornithology 2020 (eBird data); 1 and the prey component in PBF 2. Whittell Research Ranch of the National Service 2020c, entire). This unit is part Hydrologic processes, in natural or Audubon Society IBA (National of the area within the Southwest portion altered systems, that provide for Audubon Society 2020b, entire). of the DPS that provides breeding maintaining and regenerating breeding Stringers of trees along the drainages in habitat for the western yellow-billed habitat as identified in PBF 3 occurs this primarily oak savanna include oak cuckoo, which is outside mainstem within this unit (monsoonal events). with some cottonwood, mesquite, and rivers and their tributaries as identified The site also provides a movement desert willow (National Audubon in our conservation strategy. The unit corridor migratory stop-over habitat for Society 2020b, entire). provides the habitat component western yellow-billed cuckoos. Unit 50: AZ–38 Arivaca Lake, Pima provided in PBF 1 and the prey The Patagonia Mountains IBA is and Santa Cruz Counties, Arizona. component in PBF 2. Hydrologic within one of southern Arizona’s sky Critical habitat Unit AZ–38 is 1,365 ac processes, in natural or altered systems, islands and is composed of Madrean (553 ha) in extent and is a 9-mi (14-km)- that provide for maintaining and evergreen woodland habitat dominated long continuous segment of stream near regenerating breeding habitat as by oak-juniper, oak-pine, and pine oak Arivaca Lake in Pima and Santa Cruz identified in PBF 3 occurs within this communities surrounded by grasslands Counties, Arizona. Approximately 567 unit (monsoonal events). The site also and desert (National Audubon Society ac (229 ha) is in Federal ownership; 417 provides a movement corridor and 2016g, entire). The many canyons and ac (169 ha) is in State ownership; and migratory stop-over habitat for western drainages that cut through these 381 ac (154 ha) is in other ownership. yellow-billed cuckoos. This drainage mountains support riparian and The unit is considered to have been includes riparian, desert scrub, and xeroriparian vegetation. The extent of occupied at the time of listing and Madrean evergreen woodland the oak-juniper community type habitat, western yellow-billed cuckoos occupy vegetation. This canyon contains dense with sycamores in drainages, is this site regularly during the breeding vegetation along the creek that flows continuous throughout this range. season (Corman and Magill 2000, pp. through the bottom of the canyon, and Occupied habitat includes varying 42–43; MacFarland and Horst 2015, pp. the sloping vegetated canyon walls amounts of sycamore, cottonwood, 17–18; AGFD 2018, entire; Cornell Lab provide additional foraging mesquite, oak, juniper, pine, walnut, of Ornithology 2020 (eBird data); Drost opportunities (MacFarland and Horst desert willow, walnut, mimosa, and et al. 2020, pp. 30, 34). This unit is part 2015, p. 103). This unit is within the skunkbush (Rhus spp.) (WestLand of the area within the Southwest portion Santa Rita Mountains IBA (National Resources, Inc. 2019, entire). of the DPS that provides breeding Audubon Society 2016f, entire), one of Unit 49: AZ–37 Canelo Hills, Santa habitat for the western yellow-billed the sky islands in southeastern Arizona. Cruz County cuckoo, which is outside mainstem Occupied overstory habitat consists of Critical habitat Unit AZ–37 is 2,822 ac rivers and their tributaries as identified oak, mesquite, hackberry, sycamore (1,142 ha) in extent and is an 11.5-mi in our conservation strategy. The unit (MacFarland and Horst 2015, p. 124). (18.5-km)-long drainage within Santa provides the habitat component Unit 48: AZ–36 Patagonia Mountains, Cruz County, Arizona. Approximately provided in PBF 1 and the prey Santa Cruz County, Arizona. 1,381 ac (559 ha) is in Federal component in PBF 2. Hydrologic Critical habitat Unit AZ–36 is 1,912 ac ownership; 1 ac (< 1 ha) is in State processes, in natural or altered systems, (774 ha) in extent and is an 11-mi (17- ownership; and 1,440 ac (583 ha) is in that provide for maintaining and km)-long segment made up of several other ownership. Occupied habitat regenerating breeding habitat as drainages in the Patagonia Mountains in includes O’Donnell and Turkey creeks identified in PBF 3 occurs within this Santa Cruz County, Arizona. and Canelo Hills Cienega. This unit is unit (monsoonal events). The site also Approximately 1,059 ac (429 ha) is in considered to be occupied at the time of provides a movement corridor and Federal ownership; 8 ac (3 ha) is in listing and western yellow-billed migratory stop-over habitat for western State ownership; and 845 ac (342 ha) is cuckoos occupy and nest in the trees yellow-billed cuckoos. This unit is part in other ownership. Western yellow- bordering creeks and cienega wetlands of the Arivaca Cienega and Creek IBA

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(National Audubon Society 2013a, (eBird data)). This unit is part of the cottonwood, walnut, desert willow, entire). Habitat includes mesquite, area within the Southwest portion of the hackberry, and juniper (MacFarland and willow, cottonwood, ash, and hackberry DPS that provides breeding habitat for Horst 2015, pp. 124, 129; Service 2020c, (MacFarland and Horst 2015, p. 121). the western yellow-billed cuckoo, entire). Unit 51: AZ–39 Peppersauce Canyon, which is outside mainstem rivers and Unit 54: AZ–42 Rock Corral Canyon, Pinal County, Arizona. their tributaries as identified in our Santa Cruz County, Arizona. Critical habitat Unit AZ–39 is 349 ac conservation strategy. The unit provides Critical habitat Unit AZ–42 is 214 ac (141 ha) in extent and is a 4-mi (6-km)- the habitat component provided in PBF (87 ha) in extent and is a 3-mi (5-km)- long continuous segment of stream 1 and the prey component in PBF 2. long continuous segment of stream within Peppersauce Canyon in Pinal Hydrologic processes, in natural or within Rock Corral Canyon in Santa County, Arizona. Approximately 317 ac altered systems, that provide for Cruz County, Arizona. Approximately (128 ha) is in Federal ownership, and 32 maintaining and regenerating breeding 190 ac (77 ha) is in Federal ownership, ac (13 ha) is in other ownership. The habitat as identified in PBF 3 occurs and 25 ac (10 ha) is in State ownership. unit is considered to have been within this unit (monsoonal events). The unit is considered to have been occupied at the time of listing. Western Pena Blanca Canyon and Lake, in occupied at the time of listing. Western yellow-billed cuckoo occupy and breed Coronado National Forest, are part of yellow-billed cuckoos occupy and nest in the Madrean evergreen woodland the Atascosa Highlands IBA (Arizona in this unit during the breeding season drainage in the Santa Catalina IBA 2020a, entire). The occupied (MacFarland and Horst 2015, pp. 5, 23– Mountains on the Coronado National drainage includes riparian and Madrean 24; Cornell Lab of Ornithology 2020 Forest (MacFarland and Horst 2015, pp. evergreen woodland vegetation (eBird data); Drost et al. 2020, pp. 30, 53–54; MacFarland and Horst 2017, pp. consisting primarily of oak and willow, 34). This unit is part of the area within 47–50; MacFarland and Horst 2019, pp. with small amounts of juniper, the Southwest portion of the DPS that 30–31; Cornell Lab of Ornithology 2020 mesquite, and ash (MacFarland and provides breeding habitat for the (eBird data); Drost et al. 2020, pp. 32, Horst 2015, p. 121). western yellow-billed cuckoo, which is 35). This unit is part of the area within Unit 53: AZ–41 Box Canyon, Pima outside mainstem rivers and their the Southwest portion of the DPS that County, Arizona. tributaries as identified in our provides breeding habitat for the Critical habitat Unit AZ–41 is 536 ac conservation strategy. The unit provides western yellow-billed cuckoo, which is (217 ha) in extent and is a 7-mi (11-km)- the habitat component provided in PBF outside mainstem rivers and their long continuous segment of stream 1 and the prey component in PBF 2. tributaries as identified in our within Box Canyon in Pima County, Hydrologic processes, in natural or conservation strategy. Arizona. Approximately 317 ac (128 ha) altered systems, that provide for The unit provides the habitat is in Federal ownership; 184 ac (74 ha) maintaining and regenerating breeding component provided in PBF 1 and the is in State ownership; and 34 ac (14 ha) habitat as identified in PBF 3 occurs prey component in PBF 2. Hydrologic is in other ownership. The unit is within this unit (monsoonal events). processes, in natural or altered systems, considered to have been occupied at the The site also provides a movement that provide for maintaining and time of listing. Western yellow-billed corridor and migratory stop-over habitat regenerating breeding habitat as cuckoos are occupying and nesting in for western yellow-billed cuckoos. This identified in PBF 3 occurs within this this unit regularly during the breeding unit is part of the Atascosa Highlands unit (monsoonal events). This unit is season (Sebesta 2014, entire; IBA (Arizona IBA 2020a, entire). This within the Tucson Mountains Sky MacFarland and Horst 2015, entire; drainage includes riparian, desert scrub, Islands and Sonoran Uplands IBA MacFarland and Horst 2017, pp. 53–56; and Madrean evergreen woodland (National Audubon Society 2020e, Cornell Lab of Ornithology 2020 (eBird vegetation in occupied habitat entire). The drainage includes riparian data); Drost et al. 2020, pp. 13, 15, 31, composed primarily of mesquite, with and Madrean evergreen woodland 33, 35, 36). This unit is within the Santa some oak and cottonwood (MacFarland vegetation in occupied habitat Rita Mountains IBA (National Audubon and Horst 2015, p. 121). consisting of oak, sycamore, hackberry, Society 2016f, entire) (see description Unit 55: AZ–43 Lyle Canyon, Santa juniper, cottonwood, mesquite, walnut, under Unit 43; AZ–31 Florida Wash). Cruz and Cochise Counties, Arizona. and ocotillo (MacFarland and Horst This unit is part of the area within the Critical habitat Unit AZ–43 is 1,293 ac 2015, p. 122; MacFarland and Horst Southwest portion of the DPS that (523 ha) in extent and is a 7.5-mi (12- 2016, p. 59). provides breeding habitat for the km)-long continuous segment of stream Unit 52: AZ–40 Pena Blanca Canyon, western yellow-billed cuckoo, which is within Lyle Canyon in Santa Cruz and Santa Cruz County, Arizona. outside mainstem rivers and their Cochise Counties, Arizona. Critical habitat Unit AZ–40 is 483 ac tributaries as identified in our Approximately 716 ac (290 ha) is in (195 ha) in extent and is a 7-mi (11-km)- conservation strategy. The unit provides Federal ownership and 577 ac (234 ha) long continuous segment of stream the habitat component provided in PBF is in other ownership. The site is within Pena Blanca Canyon in Santa 1 and the prey component in PBF 2. considered occupied at the time of Cruz County, Arizona. The entire unit is Hydrologic processes, in natural or listing. Western yellow-billed cuckoo in Federal ownership. We have altered systems, that provide for occupy Madrean evergreen woodland excluded the 60-ft (18-m) Roosevelt maintaining and regenerating breeding drainages during the breeding season in Reservation from this unit (see habitat as identified in PBF 3 occurs Korn and Lyle Canyons (MacFarland Exclusions). Pena Blanca Lake is also within this unit (monsoonal events). and Horst 2015, pp. 33–36; Drost et al. included in this unit. The unit is The site also provides a movement 2020, p. 31; Service 2020c, entire). considered to have been occupied at the corridor and migratory stop-over habitat This unit is part of the area within the time of listing. Western yellow-billed for western yellow-billed cuckoos. This Southwest portion of the DPS that cuckoos occupy and nest in this unit drainage includes riparian, desert scrub, provides breeding habitat for the regularly during the breeding season and Madrean evergreen woodland western yellow-billed cuckoo, which is (Helentjaris 2014, entire; MacFarland vegetation in occupied habitat outside mainstem rivers and their and Horst 2015, pp. 19–22; AGFD 2018, consisting primarily of mesquite, ash, tributaries as identified in our entire; Cornell Lab of Ornithology 2020 ocotillo, willow, oak, sycamore, conservation strategy. The unit provides

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the habitat component provided in PBF 121–122). Merritt Canyon, north of western yellow-billed cuckoo, which is 1 and the prey component in PBF 2. Parker Canyon Lake, is a shallow and outside mainstem rivers and their Hydrologic processes, in natural or wide drainage with large trees and tributaries as identified in our altered systems, that provide for flowing water (MacFarland and Horst conservation strategy. The unit provides maintaining and regenerating breeding 2015, p. 37). the habitat component provided in PBF habitat as identified in PBF 3 occurs Unit 57: AZ–45 Barrel Canyon, Pima 1 and the prey component in PBF 2. within this unit (monsoonal events). County, Arizona. Hydrologic processes, in natural or The site also provides a movement Critical habitat Unit AZ–45 is 920 ac altered systems, that provide for corridor and migratory stop-over (372 ha) in extent and is a 5-mi (8-km)- maintaining and regenerating breeding location. Part of this unit is within long continuous segment of stream habitat as identified in PBF 3 occurs Huachuca Mountains IBA (National within Barrel Canyon in Pima County, within this unit (monsoonal events). Audubon Society 2013b, entire). Arizona. Approximately 755 ac (306 ha) The site also provides a movement Occupied overstory habitat in Korn is in Federal ownership (Coronado corridor and migratory stop-over habitat Canyon is dominated by oak and National Forest) and 164 ac (66 ha) is in for western yellow-billed cuckoos. This juniper, with some sycamore and ash other ownership. The unit is considered unit is part of the Santa Rita Mountains (MacFarland and Horst 2015, pp. 121– to have been occupied at the time of IBA and Las Cienegas NCA IBA 122). Occupied overstory habitat in Lyle listing. Western yellow-billed cuckoo (National Audubon Society 2016f, Canyon is dominated by oak and occupy the Madrean evergreen entire; 2020d, entire). Habitat in juniper, with some sycamore, pinion woodland drainages during the breeding Gardner Canyon is Madrean evergreen pine, and walnut in some areas and season (Westland Resources, Inc. 2019, woodland with oak, desert willow, dominated by oak in other areas with entire). This unit is part of the area mesquite, and juniper. cottonwood, mesquite, and desert within the Southwest portion of the DPS Unit 59: AZ–47 Brown Canyon; Pima willow (MacFarland and Horst 2015, p. that provides breeding habitat for the County, Arizona. 122; National Audubon Society 2013b, western yellow-billed cuckoo, which is Critical habitat Unit AZ–47 is 1,113 ac entire). outside mainstem rivers and their (451 ha) in extent and is an 8-mi (13- Unit 56: AZ–44 Parker Canyon Lake, tributaries as identified in our km)-long continuous segment of stream Santa Cruz and Cochise Counties, conservation strategy. The unit provides within Brown Canyon in Pima County, Arizona. the habitat component provided in PBF Arizona. Approximately 726 ac (294 ha) Critical habitat Unit AZ–44 is 1,499 ac 1 and the prey component in PBF 2. is in Federal ownership; 228 ac (92 ha) (607 ha) in extent and is a 10.5-mi (16- Hydrologic processes, in natural or is in State ownership; and 159 ac (64 ha) km)-long continuous segment of stream altered systems, that provide for is in other ownership. This site is near Parker Canyon Lake in Santa Cruz maintaining and regenerating breeding considered to have been occupied at the and Cochise Counties, Arizona. habitat as identified in PBF 3 occurs time of listing. The upper portion of Approximately 1,424 ac (576 ha) is in within this unit (monsoonal events). Brown Canyon and Wash, part of Federal ownership, and 75 ac (30 ha) is The site also provides a movement Buenos Aires National Wildlife Refuge, in other ownership. The unit is corridor and migratory stop-over habitat is regularly occupied by nesting western considered to have been occupied at the for western yellow-billed cuckoos. This yellow-billed cuckoos during the time of listing. Western yellow-billed unit is part of the Santa Rita Mountains breeding season (Flatland 2011, entire; cuckoo occupy and nest in Madrean IBA (National Audubon Society 2016f, American Birding Association 2012, evergreen woodland drainages during entire). Vegetation in occupied habitat is entire; Pima County 2016, p. A–78; the breeding season in Collins and oak, mesquite, and desert willow, with Corson 2018, pp. 11–12; Drost et al. Merrit Canyons (MacFarland and Horst an occasional sycamore, walnut, 2020, pp. 30, 31, 34). Western yellow- 2015, pp. 27–30, 37–38; Cornell Lab of Goodding’s willow, and juniper. billed cuckoos are nesting in many Ornithology 2020 (eBird data); Drost et Unit 58: AZ–46 Gardner Canyon; drainages in the Altar Valley, including al. 2020, pp. 31, 34). This unit is part Pima and Santa Cruz Counties, Arizona. several drainages within the San of the area within the Southwest portion Critical habitat Unit AZ–46 is 5,801 ac Bernardino National Wildlife Refuge of the DPS that provides breeding (2,056 ha) in extent and is a 14-mi (23- that are not being designated as critical habitat for the western yellow-billed km)-long continuous segment of stream habitat (Service 2020c, entire). This unit cuckoo, which is outside mainstem within Gardner Canyon in Pima and is part of the area within the Southwest rivers and their tributaries as identified Santa Cruz Counties, Arizona. portion of the DPS that provides in our conservation strategy. The unit Approximately 4,320 ac (1,748 ha) is in breeding habitat for the western yellow- provides the habitat component Federal ownership; 290 ac (117 ha) is in billed cuckoo, which is outside provided in PBF 1 and the prey State ownership; and 471 ac (191 ha) is mainstem rivers and their tributaries as component in PBF 2. Hydrologic in other ownership. This unit includes identified in our conservation strategy. processes, in natural or altered systems, suitable habitat within BLM’s Las The unit provides the habitat that provide for maintaining and Cienegas National Conservation Area component provided in PBF 1 and the regenerating breeding habitat as (NCA) that connects Coronado National prey component in PBF 2. Hydrologic identified in PBF 3 occurs within this Forest’s Gardner Canyon with BLM’s processes, in natural or altered systems, unit (monsoonal events). The site also upper Cienega Creek (BLM 2003, entire). that provide for maintaining and provides a movement corridor and The unit is considered to have been regenerating breeding habitat as migratory stop-over habitat for western occupied at the time of listing. Western identified in PBF 3 occurs within this yellow-billed cuckoos. Part of this unit yellow-billed cuckoos occupy and nest unit (monsoonal events). The site also is within the Huachuca Mountains IBA in Gardner Canyon during the breeding provides a movement corridor and (National Audubon Society 2013b, season. Cornell Lab of Ornithology 2020 migratory stop-over habitat for western entire). Dominant overstory vegetation (eBird data); Drost et al. 2020; pp. 15, yellow-billed cuckoos. Brown Canyon in occupied habitat in Collins and 33, 35, 36; Service 2020c, entire). This includes a broad mix of dominant plant Merritt canyons consists of juniper and unit is part of the area within the species that change with elevation and oak, with ash, pine, cottonwood, and Southwest portion of the DPS that topography, including Madrean walnut (MacFarland and Horst 2015, pp. provides breeding habitat for the evergreen woodland, desert scrub, and

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desert grassland. At lower elevations, Approximately 361 ac (146 ha) is in unit (monsoonal events). The site also vegetation is predominantly Sonoran Federal ownership, and 222 ac (90 ha) provides a movement corridor and Desert uplands; at higher elevations, is in other ownership. The unit is migratory stop-over habitat for western vegetation is predominantly oak considered to have been occupied at the yellow-billed cuckoos. This drainage woodlands (Powell and Steidl 2015, p. time of listing. Washington Gulch is a includes riparian and Madrean 68). Vegetation includes a mix of riparian corridor in Madrean evergreen evergreen woodland vegetation mesquite, oaks, hackberry, sycamore, woodland in the Patagonia Mountains including oak, walnut, juniper, and walnut, acacia, mimosa, and juniper in in the Coronado National Forest and is some pine as the most dominant tree the drainage with mimosa and grass or occupied by western yellow-billed species where western yellow-billed mesquite and grass dominated hillsides cuckoos during the breeding season cuckoos were detected during surveys (Powell and Steidl 2015, pp. 67, 69; (MacFarland and Horst 2015, pp. 91–94; (MacFarland and Horst 2015, p. 123; Corson 2018, p. 6). Cornell Lab of Ornithology 2020 (eBird WestLand Resources, Inc. 2019, entire). Unit 60: AZ–48 Sycamore Canyon, data)). This unit is part of the area This unit lies within the Patagonia Patagonia Mountains; Santa Cruz within the Southwest portion of the DPS Mountains IBA. County, Arizona. that provides breeding habitat for the Unit 63: CA–1 Sacramento River; Critical habitat Unit AZ–48 is 604 ac western yellow-billed cuckoo, which is Colusa, Glenn, Butte, and Tehama (245 ha) in extent and is a 5-mi (8-km)- outside mainstem rivers and their Counties, California. long continuous segment of stream tributaries as identified in our Critical habitat unit CA–1 is 34,201 ac within Sycamore Canyon in Santa Cruz conservation strategy. The unit provides (13,841 ha) in extent and is a 69-mi County, Arizona. The unit is entirely the habitat component provided in PBF (111-km)-long continuous segment of within Federal lands within the 1 and the prey component in PBF 2. the Sacramento River starting 5 mi (8 Coronado National Forest and is Hydrologic processes, in natural or km) southeast of the city of Red Bluff in considered to have been occupied at the altered systems, that provide for Tehama County, California, to the time of listing. Sycamore Canyon is a maintaining and regenerating breeding downstream boundary of the Colusa- well-vegetated riparian corridor in habitat as identified in PBF 3 occurs Sacramento River State Recreation Area Madrean evergreen woodland in the within this unit (monsoonal events). next to the town of Colusa in Colusa Patagonia Mountains and is occupied by The site also provides a movement County, California. Approximately western yellow-billed cuckoos during corridor and migratory stop-over habitat 2,123 ac (859 ha) is in Federal the breeding season (MacFarland and for western yellow-billed cuckoos. This ownership; 485 ac (196 ha) is in State Horst 2015, pp. 91, 92; Cornell Lab of drainage contains an overstory of large ownership; and 31,593 ac (12,785 ha) is Ornithology 2020 (eBird data)). This oak trees with some juniper and a in other ownership. The unit is unit lies within the Patagonia midstory of manzanita and juniper considered to have been occupied at the Mountains IBA (National Audubon (MacFarland and Horst 2015; pp. 93, time of listing. This site has been a Society 2016g, entire). This unit is part 124, 129). This unit lies within the significant nesting area (nearly 100 of the area within the Southwest portion Patagonia Mountains IBA. nesting pairs in early 1970s) for the of the DPS that provides breeding Unit 62: AZ–50 Paymaster Spring and western yellow-billed cuckoo in the past habitat for the western yellow-billed Mowrey Wash; Santa Cruz County, but has been in decline (Dettling and cuckoo, which is outside mainstem Arizona. Howell 2011a, pp. 30–35; Dettling and rivers and their tributaries as identified Critical habitat Unit AZ–50 is 903 ac Howell 2011b, entire; Dettling et al. in our conservation strategy. The unit (365 ha) in extent and is made up of 2015, p. 2). This unit is part of the area provides the habitat component segments of stream within Paymaster outside the Southwest portion of the provided in PBF 1 and the prey Spring and Mowrey Wash totaling 5.5 DPS that provides breeding habitat for component in PBF 2. Hydrologic mi (8.8 km) in Santa Cruz County, the western yellow-billed cuckoo that is processes, in natural or altered systems, Arizona. Approximately 390 ac (158 ha) in a different ecological setting as that provide for maintaining and is in Federal ownership, and 512 ac (207 identified in our conservation strategy. regenerating breeding habitat as ha) is in other ownership. The unit is The unit provides the habitat identified in PBF 3 occurs within this considered to have been occupied at the component provided in PBF 1 and the unit (monsoonal events). The site also time of listing. Paymaster Creek is a prey component in PBF 2. Hydrologic provides a movement corridor and riparian corridor in Madrean evergreen processes, in natural or altered systems, migratory stop-over habitat for western woodland in the Patagonia Mountains that provide for maintaining and yellow-billed cuckoos. Dominant in the Coronado National Forest and is regenerating breeding habitat as overstory vegetation where western occupied by western yellow-billed identified in PBF 3 occur within this yellow-billed cuckoos have been found cuckoos during the breeding season unit but depend on river flows and during surveys was primarily oak, ash, (MacFarland and Horst 2015, p. 89; flood timing. Survey efforts in the early cottonwood, and mesquite, and Cornell Lab of Ornithology 2020 (eBird 1970s detected approximately 3 western dominant midstory vegetation was data); Service 2020c, entire). This unit is yellow-billed cuckoo detections per day mesquite, Baccharis sp., ash, Mimosa part of the area within the Southwest (60–96 nesting pairs). In the late 1980s sp., grape, and skunkbush (Rhus portion of the DPS that provides this number dropped to less than 1.5 per trilobata) (MacFarland and Horst 2015, breeding habitat for the western yellow- day (35 nesting pairs) and in 2012 the pp. 91, 124, 129). billed cuckoo, which is outside survey efforts identified 1 to less than 1 Unit 61: AZ–49 Washington Gulch; mainstem rivers and their tributaries as sighting per day (28 nesting pairs) Santa Cruz County, Arizona. identified in our conservation strategy. (Dettling et al. 2015, pp. 11–13). It is an Critical habitat Unit AZ–49 is 585 ac The unit provides the habitat important area to maintain for (237 ha) in extent and is a 5-mi (8-km)- component provided in PBF 1 and the occupancy to promote species recovery. long continuous segment of stream prey component in PBF 2. Hydrologic Unit 64: CA–2 South Fork Kern River within Washington Gulch in Santa Cruz processes, in natural or altered systems, Valley; Kern County, California. County, Arizona. We have excluded the that provide for maintaining and Critical habitat Unit CA–2 is 2,379 ac 60-ft (18-m) Roosevelt Reservation from regenerating breeding habitat as (963 ha) in extent and is a 13-mi (21- this unit (see Exclusions). identified in PBF 3 occurs within this km)-long continuous segment of the

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South Fork Kern River from west of the identified in PBF 3 occur within this State ownership; and 3,374 ac (1,365 ha) settlement of Canebrake downstream to unit but depend on river flows and is in other ownership. This unit is near Lake Isabella in Kern County, flood timing. The unit is at the northern occupied by western yellow-billed California. We have excluded limit of the species’ current breeding cuckoos during the breeding season and approximately 261 ac (108 ha) of land range. represents the northern limit of the from this unit (see Exclusions). Unit 66: ID–2 Snake River 2; species’ currently known breeding Approximately 85 ac (34 ha) is Federal Bonneville, Madison, and Jefferson range. This unit is part of the area land, 419 ac (170 ha) is State land; and Counties, Idaho. outside the Southwest portion of the 1,875 ac (756 ha) is in other ownership. Critical habitat unit ID–2 is 11,442 ac DPS that provides breeding habitat for The unit is considered to have been (4,630 ha) in extent and is a 40-mi (64- the western yellow-billed cuckoo that is occupied at the time of listing. This unit km)-long continuous segment of the in a different ecological setting as is part of the area outside the Southwest Snake River from the bridge crossing on identified in our conservation strategy. portion of the DPS that provides the Snake River 2 mi (3 km) east of the The unit contains all the physical or breeding habitat for the western yellow- Town of Roberts in Madison County biological features essential to the billed cuckoo that is in a different through Jefferson County and upstream conservation of the species and was ecological setting as identified in our to the vicinity of the mouth of Table occupied at the time of listing and is conservation strategy. The unit provides Rock Canyon in Bonneville County, still considered occupied. Inclusion of the habitat component provided in PBF Idaho. Approximately 5,862 ac (2,372 this unit contributes to the proposed 1 and the prey component in PBF 2. ha) is in Federal ownership; 1,940 ac critical habitat designation representing Hydrologic processes, in natural or (785 ha) is in State ownership; and the full breeding range of the DPS. New altered systems, that provide for 3,641 ac (1,473 ha) is in other comments by the American Bird maintaining and regenerating breeding ownership. Portions of this unit are Conservancy during the previous habitat as identified in PBF 3 occur within lands designated as the Snake comment period, along with survey and within this unit but depend on river River ACEC by BLM, and the Land and habitat information previously flows and flood timing. The site also Water Conservation Fund (LWCF) submitted by the BLM and Idaho provides a stop-over area or movement program has purchased 32 properties in Department of Fish and Game, show corridor between western yellow-billed fee title and set aside approximately 42 western yellow-billed cuckoos in the cuckoos breeding on the Colorado River conservation easements (22,400 ac expanded area. In response to the and the Sacramento River. Much of the (9,065 ha)) within the ACEC. The comments and new information privately owned land is owned and western yellow-billed cuckoo has been received, we are amending the managed by Audubon California as the identified as a species of concern in the previously proposed boundaries of this Kern River Preserve. Numbers of ACEC. The unit is considered to have unit to incorporate additional habitat breeding western yellow-billed cuckoos been occupied at the time of listing and upstream to approximately 1.6 km (1 have been relatively consistent at this is consistently occupied by western mi) downstream of the town of St. site. The habitat at this site is improving yellow-billed cuckoos during the Anthony, Fremont County, Idaho. based on reduction of cattle grazing and breeding season. This unit is part of the Portions of this unit were removed habitat restoration activities. area outside the Southwest portion of based on our reevaluation of the habitat. Unit 65: ID–1 Snake River 1; Bannock the DPS that provides breeding habitat Unit 68: CO–1 Colorado River; Mesa and Bingham Counties, Idaho. for the western yellow-billed cuckoo County, Colorado. Critical habitat unit ID–1 is 5,632 ac that is in a different ecological setting as Critical habitat unit CO–1 is 3,137 ac (2,276 ha) in extent and is a continuous identified in our conservation strategy. (1,269 ha) in extent and is a 25-mi (40- segment of the Snake River from near The unit provides the habitat km)-long continuous segment of the the upstream end of the American Falls component provided in PBF 1 and the Colorado River in the vicinity of Grand Reservoir in Bannock County upstream prey component in PBF 2. Hydrologic Junction in Mesa County, Colorado. We to a point on the Snake River processes, in natural or altered systems, have excluded approximately 866 ac approximately 2 mi (3 km) west of the that provide for maintaining and (351 ha) of land from this unit (see Town of Blackfoot in Bingham County, regenerating breeding habitat as Exclusions). Approximately 196 ac (79 Idaho. We have excluded approximately identified in PBF 3 occur within this ha) is in Federal ownership; 174 ac (70 4,023 ac (1,633 ha) of land from this unit but depend on river flows and ha) is in State ownership; and 2,766 ac unit (see Exclusions). Approximately flood timing. State and County road (1,119 ha) is in other ownership. The 2,863 ac (1,158 ha) is in Federal crossings account for less than 1 percent unit is considered to have been ownership; 1,209 ac (489 ha) is in State of total ownership of this proposed unit. occupied at the time of listing and ownership; and 1,551 ac (628 ha) is in The unit is at the northern limit of the occurs within the unit in the breeding other ownership. The unit is considered species’ current breeding range. season. This unit is part of the area to have been occupied at the time of Unit 67: ID–3 Henry’s Fork and Teton outside the Southwest portion of the listing and is consistently occupied by Rivers; Madison and Fremont Counties, DPS that provides breeding habitat for western yellow-billed cuckoos during Idaho. the western yellow-billed cuckoo that is the breeding season. This unit is part of Critical habitat Unit ID–3 is 4,641 ac in a different ecological setting as the area outside the Southwest portion (1,878 ha) in extent and is a 15-mi (24- identified in our conservation strategy. of the DPS that provides breeding km)-long continuous segment of the The unit provides the habitat habitat for the western yellow-billed Henry’s Fork of the Snake River in component provided in PBF 1 and the cuckoo that is in a different ecological Madison County from approximately 16 prey component in PBF 2. Hydrologic setting as identified in our conservation km (10 mi) upstream of the confluence processes, in natural or altered systems, strategy. The unit provides the habitat with the Snake River to a point on the that provide for maintaining and component provided in PBF 1 and the river approximately 1.6 km (1 mi) regenerating breeding habitat as prey component in PBF 2. Hydrologic downstream of the town of St. Anthony identified in PBF 3 occur within this processes, in natural or altered systems, in Fremont County, Idaho. unit but depend on river flows and that provide for maintaining and Approximately 756 ac (306 ha) is in flood timing. The site also provides a regenerating breeding habitat as Federal ownership; 511 ac (207 ha) is in migration stop-over habitat for western

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yellow-billed cuckoos moving farther flows and flood timing. The site also cuckoos during the breeding season. north. The Colorado River Wildlife provides a movement corridor for This unit is part of the area outside the Management Area managed by the U.S. western yellow-billed cuckoos moving Southwest portion of the DPS that Fish and Wildlife Service holds farther north. This unit includes areas of provides breeding habitat for the conservation easements on several riparian vegetation that area suitable as western yellow-billed cuckoo that is in private parcels in this unit. western yellow-billed cuckoo breeding a different ecological setting as Unit 69: CO–2 North Fork Gunnison habitat and connected areas of riparian identified in our conservation strategy. River; Delta County, Colorado. vegetation that are suitable as foraging The unit provides the habitat Critical habitat unit CO–2 is 2,326 ac habitat. Recent surveys in this area component provided in PBF 1 and the (941 ha) in extent and is a 16-mi (26- revealed multiple western yellow-billed prey component in PBF 2. Hydrologic km)-long continuous segment of the cuckoo detections. processes, in natural or altered systems, North Fork of the Gunnison River Unit 71: UT–2 Green River 2; Emery that provide for maintaining and between Hotchkiss and Paeonia in Delta and Grand Counties, Utah. regenerating breeding habitat as County, Colorado. Approximately 115 Critical habitat Unit UT–2 is 1,135 ac identified in PBF 3 occur within this ac (47 ha) is in Federal ownership, and (459 ha) in extent and is an 8-mi (13- unit but depend on river flows and 2,211 ac (895 ha) is in other ownership. km)-long continuous segment of the flood timing. The site also provides a This unit is considered to have been Green River north of the town of Green north-south movement corridor for occupied at the time of listing and is River in Emery and Grand Counties, western yellow-billed cuckoos breeding consistently used by western yellow- Utah. Approximately 40 ac (16 ha) is in farther north. Although tamarisk, a billed cuckoos during the breeding Federal ownership; 632 ac (256 ha) is in nonnative species that may reduce the season. This unit is part of the area State ownership; and 462 ac (187 ha) is habitat’s value, is a major component of outside the Southwest portion of the in other ownership. The unit is this unit, the area still provides habitat DPS that provides breeding habitat for considered to have been occupied at the for the species and considered essential. the western yellow-billed cuckoo that is time of listing. Recent surveys have This unit includes areas of riparian in a different ecological setting as shown that this unit has a number of vegetation that are suitable as western identified in our conservation strategy. western yellow-billed cuckoos during yellow-billed cuckoo breeding habitat The unit provides the habitat the breeding season (Utah Division of and connected areas of riparian component provided in PBF 1 and the Wildlife Resources (UDWR) 2012, vegetation that are suitable as foraging prey component in PBF 2. Hydrologic entire; UDWR 2013, entire; UDWR 2014, habitat. processes, in natural or altered systems, entire). This unit is part of the area In our review of all units along the that provide for maintaining and outside the Southwest portion of the U.S./Mexico border, we also reviewed regenerating breeding habitat as DPS that provides breeding habitat for Unit 72 (TX–1 Terlingue Creek/Rio identified in PBF 3 occur within this the western yellow-billed cuckoo that is Grande). Unit 72 occurs along the unit but depend on river flows and in a different ecological setting as border mostly in Big Bend National Park flood timing. The site also provides identified in our conservation strategy. and includes Santa Elena Canyon and migratory stop-over habitat for western The unit provides the habitat several other heavily used public use yellow-billed cuckoos moving farther component provided in PBF 1 and the areas along the National Park’s southern north. prey component in PBF 2. Hydrologic boundary in Brewster County, Texas. Unit 70: UT–1 Green River 1; Uintah processes, in natural or altered systems, The NPS manages the land and natural and Duchesne Counties, Utah. that provide for maintaining and resources at Big Bend National Park, Critical habitat unit UT–1 is 13,273 ac regenerating breeding habitat as and western yellow-billed cuckoo have (5,371 ha) in extent and is made up of identified in PBF 3 occur within this been observed on a regular basis at segments of the Green River and unit but depend on river flows and Cottonwood Campground at Santa Elena Duchesne Rivers in the vicinity of flood timing. The site also provides Canyon and the area provides Ouray in Uintah County, Utah. We have migratory stop-over habitat for western significant value as breeding habitat for excluded approximately 15,017 ac yellow-billed cuckoos. This unit the species. Flow of the Rio Grande (6,077 ha) of land from this unit (see includes areas of riparian vegetation within this unit is persistent which Exclusions). Approximately 4,700 ac that are suitable as western yellow- supports relatively intact riparian (1,902 ha) is in Federal ownership; billed cuckoo breeding habitat and vegetation along this section of the river. 4,162 ac (1,684 ha) is in State connected areas of riparian vegetation ownership; and 4,411 ac (1,785 ha) is in that are suitable as foraging habitat. Designation of critical habitat here other ownership. The unit is considered Unit 72: TX–1 Terlingua Creek and highlights the conservation needs of the to have been occupied at the time of Rio Grande; Brewster County, Texas. western yellow-billed cuckoo and Rio listing and has been consistently used Critical habitat unit TX–1 is 7,913 ac Grande riparian communities to the by western yellow-billed cuckoos (3,202 ha) in extent and is a 45-mi (72- general public and Federal partners. during the breeding season. This unit is km)-long continuous segment from Because management of natural part of the area outside the Southwest lower Terlingua Creek to the Rio Grande resource and sensitive species are portion of the DPS that provides in Brewster County, Texas. conducted by the NPS within this unit, breeding habitat for the western yellow- Approximately 7,792 ac (3,153 ha) is in Texas does not include the Roosevelt billed cuckoo that is in a different Federal ownership in Big Bend National Reservation, and any border activities ecological setting as identified in our Park, and 121 ac (49 ha) is in other would need to be coordinated with NPS, conservation strategy. The unit provides ownership. Because this unit is along we did not consider the exclusion of the habitat component provided in PBF the border between United States and areas within Unit 72. 1 and the prey component in PBF 2. Mexico, we delineated the southern Effects of Critical Habitat Designation Hydrologic processes, in natural or edge of the unit to coincide with the altered systems, that provide for National Park boundary. The unit is Section 7 Consultation maintaining and regenerating breeding considered to have been occupied at the Section 7(a)(2) of the Act requires habitat as identified in PBF 3 occur time of listing and has been consistently Federal agencies, including the Service, within this unit but depend on river occupied by western yellow-billed to ensure that any action they fund,

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authorize, or carry out is not likely to When we issue a biological opinion significantly delay development of such jeopardize the continued existence of concluding that a project is likely to features. As discussed above, the role of any endangered species or threatened jeopardize the continued existence of a critical habitat is to support physical or species or result in the destruction or listed species and/or destroy or biological features essential to the adverse modification of designated adversely modify critical habitat, we conservation of a listed species and critical habitat of such species. The provide reasonable and prudent provide for the conservation of the western yellow-billed cuckoo occupies alternatives to the project, if any are species. habitat during the breeding season identifiable, that would avoid the Section 4(b)(8) of the Act requires us (generally between May-September); likelihood of jeopardy and/or to briefly evaluate and describe, in any consequently, Federal actions destruction or adverse modification of proposed or final regulation that conducted during the breeding season critical habitat. We define ‘‘reasonable designates critical habitat, activities must ensure that the actions do not and prudent alternatives’’ (at 50 CFR involving a Federal action that may jeopardize the western yellow-billed 402.02) as alternative actions identified violate section 7(a)(2) of the Act by cuckoo. Additionally, Federal activities during consultation that: destroying or adversely modifying such occurring within or outside those areas (1) Can be implemented in a manner habitat, or that may be affected by such during the non-breeding season consistent with the intended purpose of designation. (October-April) must also ensure that the action, Activities that may affect critical the actions do not jeopardize the species (2) Can be implemented consistent habitat, when carried out, funded, or by focusing on impacts to habitat. with the scope of the Federal agency’s authorized by a Federal agency, should We published a final rule revising the legal authority and jurisdiction, result in consultation for the western (3) Are economically and definition of destruction or adverse yellow-billed cuckoo. These activities technologically feasible, and modification on August 27, 2019 (84 FR include, but are not limited to: (4) Would, in the Service Director’s 44976). Destruction or adverse (1) Actions that would remove, thin, modification means a direct or indirect opinion, avoid the likelihood of jeopardizing the continued existence of or destroy riparian western yellow- alteration that appreciably diminishes billed cuckoo habitat, without the value of critical habitat as a whole the listed species and/or avoid the implementation of an effective riparian for the conservation of a listed species. likelihood of destroying or adversely restoration plan that would result in the Such alterations may include, but are modifying critical habitat. development of riparian vegetation of not limited to, those that alter the Reasonable and prudent alternatives equal or better quality in abundance and physical or biological features essential can vary from slight project extent. Such activities could include, to the conservation of a species or that modifications to extensive redesign or but are not limited to, removing, preclude or significantly delay relocation of the project. Costs thinning, or destroying riparian development of such features. associated with implementing a If a Federal action may affect a listed reasonable and prudent alternative are vegetation by mechanical (including species or its critical habitat, the similarly variable. controlled fire), chemical, or biological responsible Federal agency (action Regulations at 50 CFR 402.16 set forth (poorly managed biocontrol agents) agency) must enter into consultation requirements for Federal agencies to means. These activities could reduce the with us. Examples of actions that are reinitiate consultation on previously amount or extent of riparian habitat subject to the section 7 consultation reviewed actions to address certain needed by western yellow-billed process are actions on State, tribal, circumstances and where the Federal cuckoos for sheltering, feeding, local, or private lands that require a agency has retained discretionary breeding, and dispersing. Federal permit (such as a permit from involvement or control over the action (2) Actions that would appreciably the Corps under section 404 of the Clean (or the agency’s discretionary diminish habitat value or quality Water Act (33 U.S.C. 1251 et seq.) or a involvement or control is authorized by through direct or indirect effects. These permit from the Service under section law). Consequently, Federal agencies activities could permanently eliminate 10 of the Act) or that involve some other sometimes may need to request available riparian habitat and food Federal action (such as funding from the reinitiation of consultation with us on availability or degrade the general Federal Highway Administration, actions for which formal consultation suitability, quality, structure, Federal Aviation Administration, or the has been completed. abundance, longevity, and vigor of Federal Emergency Management riparian vegetation. Such activities Application of the ‘‘Adverse could include, but are not limited to: Agency). Federal actions not affecting Modification’’ Standard listed species or critical habitat—and Spraying of pesticides that would actions on State, tribal, local, or private The key factor related to the adverse reduce insect prey populations within lands that are not federally funded, modification determination is whether, or adjacent to riparian habitat; authorized, or carried out by a Federal with implementation of the proposed introduction of nonnative plants, agency—do not require section 7 Federal action, the affected critical animals, or insects; habitat degradation consultation. habitat would continue to serve its from recreational activities; and As a result of section 7 consultation, intended conservation role for the activities such as water diversions or we document compliance with the species. Activities that may destroy or impoundments that would result in requirements of section 7(a)(2) through adversely modify critical habitat are diminished or altered riverflow regimes, our issuance of: those that result in a direct or indirect groundwater extraction activities, dam (1) A concurrence letter for Federal alteration that appreciably diminishes construction and operation activities, or actions that may affect, but are not the value of critical habitat for the any other activity that negatively likely to adversely affect, listed species conservation of the western yellow- changes the frequency, magnitude, or critical habitat; or billed cuckoo. Such alterations may duration, timing, or abundance of (2) A biological opinion for Federal include, but are not limited to, those surface flow. These activities have the actions that may affect, and are likely to that alter the physical or biological potential to reduce or fragment the adversely affect, listed species or critical features essential to the conservation of quality or amount or extent of riparian habitat. these species or that preclude or habitat needed by western yellow-billed

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cuckoos for sheltering, feeding, activities could reduce the volume and Secretary shall not designate as critical breeding, and dispersing. composition of riparian vegetation, habitat any lands or other geographical As we understand the ongoing prevent regeneration of riparian plant areas owned or controlled by the existing water management operations, species, physically disturb nests, alter Department of Defense, or designated they are not of the magnitude that floodplain dynamics, alter watershed for its use, that are subject to an would cause destruction or adverse and soil characteristics, alter stream integrated natural resources modification of critical habitat. If morphology, and facilitate the growth of management plan (INRMP) prepared discretion exists to modify these plans flammable nonnative plant species. under section 101 of the Sikes Act (16 and if reinitiation of consultation on (5) Actions in relation to the Federal U.S.C. 670a), if the Secretary determines these plans becomes necessary, highway system, which could include, in writing that such plan provides a according to our regulations at 50 CFR but are not limited to, new road benefit to the species for which critical 402.16, we would evaluate the effects construction and right-of-way habitat is proposed for designation. according to the modification. If designation. These activities could There are no Department of Defense reinitiation of consultation becomes eliminate or reduce riparian habitat (DoD) lands with a completed INRMP necessary, the environmental baseline, along river crossings necessary for within the final critical habitat as defined in 50 CFR 402.02, would reproduction, sheltering, or growth of designation. include the past and present impacts of the western yellow-billed cuckoo. all Federal, State, or private actions and (6) Actions that would involve Consideration of Impacts Under Section other human activities in the action funding and/or implementation of 4(b)(2) of the Act area, the anticipated impacts of all activities associated with cleaning up proposed Federal projects in the action Superfund sites, erosion control Section 4(b)(2) of the Act states that area that have already undergone formal activities, flood control activities, the Secretary shall designate and make or early section 7 consultation, and the communication towers, solar arrays, and revisions to critical habitat on the basis impact of State or private actions which border walls or fences. These activities of the best available scientific data after are contemporaneous with the could eliminate or reduce habitat for the taking into consideration the economic consultation in process. To the extent western yellow-billed cuckoo. impact, national security impact, and agencies propose to modify their actions (7) Actions that would affect waters of any other relevant impact of specifying in a manner that does not appreciably the United States under section 404 of any particular area as critical habitat. diminish the value of the critical habitat the Clean Water Act. Such activities The Secretary may exclude an area from as a whole for the western yellow-billed could include, but are not limited to, critical habitat if he determines that the cuckoo, it is unlikely that these placement of fill into wetlands. These benefits of such exclusion outweigh the activities would meet the definition of activities could eliminate or reduce the benefits of specifying such area as part destruction or adverse modification of habitat necessary for the reproduction, of the critical habitat, unless he critical habitat under the Act. feeding, or growth of the western determines, based on the best scientific (3) Actions that would permanently yellow-billed cuckoo. destroy or alter western yellow-billed data available, that the failure to Finally, we note that for any of the designate such area as critical habitat cuckoo habitat. Such activities could seven categories of actions outlined include, but are not limited to, will result in the extinction of the above, we and the relevant Federal discharge of fill material, draining, species. In making the determination to agency may find that the agency’s ditching, tiling, pond construction, and exclude a particular area, the statute on anticipated actions affecting critical stream channelization (due to roads, its face, as well as the legislative history, habitat may be appropriate to consider construction of bridges, impoundments, are clear that the Secretary has broad programmatically in section 7 discharge pipes, stormwater detention discretion regarding which factor(s) to consultation. Programmatic basins, dikes, levees, and other things). use and how much weight to give to any consultations can be an efficient method These activities could permanently factor. for streamlining the consultation eliminate available riparian habitat and process, addressing an agency’s When identifying the benefits of food availability or degrade the general multiple similar, frequently occurring, inclusion for an area, we consider the suitability, quality, structure, or routine actions expected to be additional regulatory benefits that area abundance, longevity, and vigor of implemented in a given geographic area. would receive due to the requirement riparian vegetation and microhabitat Programmatic section 7 consultation can that protection from destruction of components necessary for nesting, also be conducted for an agency’s adverse modification as a result of migrating, food, cover, and shelter. proposed program, plan, policy, or (4) Actions that would result in actions with a Federal nexus avoid regulation that provides a framework for alteration of western yellow-billed destruction or adverse modification of future proposed actions. We are cuckoo habitat from management of the habitat; the educational benefits of committed to responding to any livestock or ungulates (for example, increasing public awareness and agency’s request for a programmatic horses, burros). Such activities could educational benefits of the presence of consultation, when appropriate and include, but are not limited to, western yellow-billed cuckoo; the subject to the approval of the Director, unrestricted ungulate access and use of recovery benefits of mapping the as a means to streamline the regulatory riparian vegetation; excessive ungulate location of habitat that is essential process and avoid time-consuming and use of riparian vegetation during the habitat for recovery of the listed species, inefficient multiple individual nongrowing season (for example, leaf and importance of habitat protection; consultations. drop to bud break); overuse of riparian and any additional benefits that may habitat and upland vegetation due to Exemptions result from a designation due to State or insufficient herbaceous vegetation Federal laws that may apply to critical available to ungulates; and improper Application of Section 4(a)(3) of the Act habitat, including protection from herding, water development, or other Section 4(a)(3)(B)(i) of the Act (16 destruction or adverse modification of livestock management actions. These U.S.C. 1533(a)(3)(B)(i)) provides that the critical habitat.

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When identifying the benefits of screening analysis which, together with 35 percent of the proposed total acreage exclusion, we consider, among other our narrative and interpretation of is Federal land, 11 percent is State land, things, whether exclusion of a specific effects we consider our draft economic and 54 percent is privately owned or area is likely to result in conservation or analysis of the critical habitat owned by local government entities. No in the continuation, strengthening, or designation and related factors (IEc Tribal lands are being designated. All encouragement of partnerships. 2020, entire). We made the analysis, critical habitat units are considered to Additionally, continued dated February 5, 2020, available for be occupied. implementation of an ongoing public review from February 27, 2020, The entities most likely to incur management plan or implementation of through April 27, 2020. The DEA incremental costs are parties to section a new management plan that would not addressed probable economic impacts of 7 consultations, including Federal be implemented if critical habitat were critical habitat designation for the action agencies and, in some cases, third designated that provides conservation western yellow-billed cuckoo. parties, most frequently State agencies that is equal to or more than the Following the close of the comment or municipalities. Activities we expect conservation that a critical habitat period, we reviewed and evaluated all would be subject to consultations that designation provides would reduce the information submitted during the may involve private entities as third benefits of including that specific area comment period that may pertain to our parties are residential and commercial in the critical habitat designation. consideration of the probable development that may occur on Tribal We evaluate the existence of a incremental economic impacts of this or private lands. However, all Tribal conservation plan when considering the critical habitat designation. Additional lands have been excluded and based on benefits of inclusion and exclusion. We information relevant to the probable coordination efforts State and local consider a variety of factors, including incremental economic impacts of agencies, the cost to private entities but not limited to, whether the plan is critical habitat designation for the within these sectors is expected to be finalized; how it provides for the western yellow-billed cuckoo is relatively minor (administrative costs of conservation of the essential physical or summarized below and available in the less than $5,200 per formal consultation biological features; whether there is a screening analysis for the western effort) and, therefore, would not be reasonable expectation that the yellow-billed cuckoo (IEc 2020, entire), significant. conservation management strategies and available at http://www.regulations.gov. The probable incremental economic actions contained in a management plan In our screening memo, which was impacts of the western yellow-billed will be implemented into the future; based on our 2013 and 2019 review of cuckoo critical habitat designation are whether the conservation strategies in potential economic impacts and expected to be limited to additional the plan are likely to be effective; comments received on our analysis administrative effort, as well as minor whether the public participated in the established that the primary expected costs of conservation efforts resulting development of the conservation plan; impact from the critical habitat from a small number of future section 7 the degree of agency review and designation would be the additional consultations. This low level of impacts required determinations, including analysis to consider adverse is anticipated because, given that the compliance with the National modification of critical habitat (and not critical habitat is occupied by the Environmental Policy Act (NEPA; 42 just jeopardy). While additional analysis species, actions that may adversely U.S.C. 4231 et seq.), that were for critical habitat in a consultation will modify the critical habitat would also completed; and whether the plan require time and resources by both the likely jeopardize the continued contains a monitoring program or Federal action agency and the Service, existence of the species; as a result, adaptive management to ensure that the in most circumstances, these additional other than administrative costs, conservation measures are effective and analyses would be predominantly incremental economic impacts of can be adapted in the future in response administrative in nature and would not critical habitat designation over and to new information. See our February incur significant costs. Our screening above impacts from consulting for 11, 2016, Policy on Exclusions for a analysis also includes discussion of jeopardy are unlikely. At approximately complete discussion of our exclusion other incremental impacts that may be $5,200 or less per formal consultation, process (81 FR 7226). triggered by this action that in turn may in order to reach the threshold of $100 After identifying the benefits of result in costs or benefits—such as, million of incremental administrative inclusion and the benefits of exclusion, additional permitting requirements or impacts in a single year, Federal we carefully weigh the two sides to changes in public perception. However, agencies would need to undertake more evaluate whether the benefits of those impacts are uncertain, and some than 20,000 formal consultations in a exclusion outweigh the benefits of of the data necessary for a full single year. In our 2020 economic inclusion. If our analysis indicates that assessment of those costs and benefits screening memo, we identified 16 the benefits of exclusion outweigh the are lacking. We recognize that changes formal consultations initiated for the benefits of inclusion, we then determine in land value are possible. But because western yellow-billed cuckoo since whether exclusion would result in the magnitude and timing are uncertain, listing. The resulting incremental extinction of the species. If exclusion of the best assessment of these possible economic burden is estimated to be less an area from critical habitat will result impacts is to conduct a bounding than $74,000 in a given year (IEc 2019, in extinction, we will not exclude it analysis of the total possible land value entire). This estimate calculated the from the designation. costs and benefits of developable land administrative cost (staff time) the within the critical habitat designation. Federal agency would need to expend Consideration of Economic Impacts The critical habitat designation for the on its analysis of adverse modification Section 4(b)(2) of the Act and its western yellow-billed cuckoo includes of critical habitat for each consultation. implementing regulations require that 63 units in 7 western States: Arizona, As discussed above, we recognize that we consider the economic impact that California, Colorado, Idaho, New changes in land value are possible. may result from a designation of critical Mexico, Texas, and Utah. A total of Because the magnitude and timing are habitat. In order to consider economic 298,845 ac (120,939 ha) is being uncertain, we conducted a bounding impacts, we prepared an incremental designated after excluding or removing analysis of the per-acre land values for effects memorandum (IEM) and 194,820 ac (78,840 ha). Approximately undeveloped properties within the

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designation that may be subject to a newly listed species or a species received comments from the development pressure in the foreseeable previously not covered). If a particular Department of the Army and future. Public perception of the effect of area is not covered under section Department of the Air Force requesting critical habitat may diminish land 4(a)(3)(B)(i), national-security or exclusion of areas used by the Army and values by some percent of these total homeland-security concerns are not a Air Force for training operations based values. Data limitations prevent us from factor in the process of determining on national security or other military estimating the size of this percent what areas meet the definition of operations. The comments were from reduction. However, any diminishment ‘‘critical habitat.’’ Nevertheless, when the Yuma Proving Grounds (Department in property value cannot exceed the designating critical habitat under of the Army 2014a, entire) and the Luke total value of the property. The section 4(b)(2), the Service must Air Force Base (Department of the Air bounding analysis indicates that consider impacts on national security, Force 2014, entire) concerning airspace approximately 287 acres of developable including homeland security, on lands above critical habitat; however, the land are located within census tracts or areas not covered by section actions described by the two overlapping the proposed designation 4(a)(3)(B)(i). Accordingly, the Policy on installations (overflight of critical with population densities greater than Exclusions makes clear that we will habitat areas) do not directly or 1,000 people per square mile. If public always consider for exclusion from the indirectly affect the physical or perception causes the value of critical designation areas for which DoD, biological features of critical habitat for habitat acres to be diminished, these Department of Homeland Security the western yellow-billed cuckoo; thus, acres are those most likely to be (DHS), or another Federal agency has they would not require consideration of affected. Due to existing data limitations requested exclusion based on an adverse modification of the critical regarding the probability that such assertion of national-security or habitat. Consequently, national security effects will occur, and the likely degree homeland-security concerns (see Policy activities carried out by the Army to which property values will be on Exclusions (81 FR 7226)). operations at Fort Yuma or operations incrementally affected by this We cannot, however, automatically by Luke Air Force Base will not be designation (above and beyond potential exclude requested areas. First, when we disrupted as a result of designation of perceptional effects resulting from the adopted the policy on exclusion, we critical habitat. Therefore, we are presence of the cuckoo and the explained that, when DoD, DHS, or including these areas in our critical flycatcher, as well as flycatcher critical another Federal agency requests habitat designation. exclusion from critical habitat on the habitat), we are unable to estimate the Department of Army—Fort Huachuca magnitude of perception-related costs basis of national-security or homeland- We also received comments from the resulting from this designation. security impacts, it must provide a U.S. Army installation at Fort Huachuca However, the cost cannot exceed the reasonably specific justification of an requesting that areas outside the total value of affected properties. Our incremental impact on national security installation in Unit 16 (AZ–14) that bounding analysis estimates the total that would result from the designation includes the San Pedro Riparian value of developable land within the of that specific area as critical habitat. National Conservation Area (SPRNCA) proposed critical habitat to be $20.3 That justification could include be excluded from the final designation million. Therefore, we have concluded demonstration of probable impacts, or a (U.S. Department of the Army 2014b, that the future probable incremental delay in training or facility construction, as a result of compliance with section entire). Unit 16 is managed by the BLM economic impacts based on the value of 7(a)(2) of the Act. If the agency and composed of Federal, State, and developable land in the vicinity of the requesting the exclusion does not private lands and not owned by the DoD proposed designation, the combined provide us with a reasonably specific or part of the lands managed under the total of section 7 and other possible justification, we will contact the agency Fort Huachuca’s INRMP or used for costs and benefits are unlikely to exceed to recommend that it provide a specific training. The Army’s rationale for the $100 million in any single year, and justification or clarification of its requested exclusion was that any impacts to any specific geographic area concerns relative to the probable additional restrictions to ground water or sector as a result of this critical incremental impact that could result pumping and water usage could affect habitat designation are also unlikely. from the designation. their ability to increase staffing when Exclusions Second, even if the agency provides a needed or carry out missions critical to reasonably specific justification, the national security. The Army also stated Exclusions Based on Economic Impacts result is not that we automatically that designation of lands within the The Service considered the economic exclude the area, but rather that we SPRNCA would increase its regulatory impacts of the critical habitat undertake an exclusion analysis to burden and disrupt its operations designation as described above. Based determine whether or not to exclude the related to national security but provided on this information, the Secretary has area. In undertaking that exclusion no specific examples or information determined not to exercise his analysis, we will defer to the expert supporting or explaining these claims discretion to exclude any areas from this judgment and give great weight to either through its comments or during designation of critical habitat for the national-security and homeland-security our meetings with them after the revised western yellow-billed cuckoo based on concerns of DoD, DHS, or another proposed rule was issued. The Army economic impacts. Federal agency as outlined in our policy pointed to its continued land (81 FR 7226). stewardship actions and its commitment Exclusions Based on Impacts on to protecting natural resources on the National Security and Homeland Department of Army—Yuma Proving base. Security Grounds and Department of Air Force— As stated above, the lands within Unit Section 4(a)(3)(B)(i) of the Act may Luke Air Force Base 16 (AZ–14) are primarily owned and not cover all DoD lands or areas that Under section 4(b)(2) of the Act, we managed by BLM. Declining base flow pose potential national-security consider whether there are lands owned and habitat loss in the San Pedro River concerns (e.g., a DoD installation that is or managed by the DoD where a due anthropogenic factors, drought, and in the process of revising its INRMP for national-security impact might exist. We climate change has long been a concern

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to landowners and communities in and consultations that may affect habitat in The U.S. Border Patrol (USBP), a law near this unit. In addition, the this active unit. Given that the Fort’s enforcement component of CBP, uses November 2013 Fort Huachuca Revised groundwater use has been determined to the Roosevelt Reservation for border Biological Assessment (BA) on its not adversely affect western yellow- security operations. The mission of the operations, titled Programmatic billed cuckoos or their habitat, it is CBP is ‘‘To safeguard America’s borders Biological Assessment for Ongoing and unlikely that there would be future thereby protecting the public from Future Military Operations and restrictions on the Fort’s groundwater dangerous people and materials while Activities at Fort Huachuca, Arizona, use resulting from the designation of enhancing the Nation’s global economic (U.S. Department of the Army 2013, p. critical habitat and accordingly, we are competitiveness by enabling legitimate 5–28), states that ‘‘Fort-attributable not considering the area for exclusion trade and travel.’’ The Roosevelt groundwater use is unlikely to affect the from this final rule due to national Reservation contains border security yellow-billed cuckoo (proposed for security. Designating critical habitat related infrastructure consisting of listing at the time) or its habitat where may actually help retain base flow and border barrier, lighting, a patrol road, the species is known to occur in the western yellow-billed cuckoo habitat, and cleared vegetation of the 60-ft (18- SPRNCA, Babocomari Cienega, or the through section 7 consultation with m) wide reservation. USBP conducts lower San Pedro River. . . .’’ The Fort other entities affecting this unit. routine patrols and law enforcement subsequently states that a modeled activities between the land ports of Unit 1 (CA–AZ 1), Unit 44 (AZ–32), Unit decline in baseflow to the lower entries such as intervention of drug 45 (AZ–33), Unit 52 (AZ–40), Unit 20 Babocomari River downstream could smuggling, human trafficking, and (AZ–18), Unit 61 (AZ–49), Unit 16 (AZ– exist by 2030 (U.S. Department of the tracking of illegal immigrant foot traffic. 14), and Unit 21 (AZ–19)—U.S. Customs Army 2013, p. 5–28). The BA concludes Border enforcement activities can occur and Border Protection (CBP)/ there will be no adverse effect on along the road bordering the barrier Department of Homeland Security western yellow-billed cuckoo or its (within the 60-ft (18-m) Roosevelt (DHS)—U.S./Mexico Border Lands habitat from Fort Huachuca’s Reservation) and outside of the operational actions or ground water We received a request from the U.S. Roosevelt Reservation, as needed for pumping. Within the Service’s Customs and Border Protection (CBP) enforcement. The Roosevelt Reservation subsequent 2014 biological and under the Department of Homeland has historically been used for border conference opinion under section 7 of Security (DHS) that the Roosevelt enforcement actions in Arizona for the Act, we issued a conference report Reservation portion of critical habitat decades and includes an existing patrol concluding that Fort Huachuca’s along the U.S./Mexico border be road in most areas. New border barrier operational activities and groundwater considered for exclusion under section is being constructed in portions of the pumping as related to the SPRNCA, 4(b)(2) of the Act for national security Roosevelt Reservation in Arizona where Babocomari Cienega, the lower San reasons. there has historically not been barrier. Pedro River, or the lower Babocomari The Roosevelt Reservation is a 60-ft These new areas of border barrier River were not likely to adversely affect (18 m) wide strip of land owned by the include the clearing of vegetation within western yellow-billed cuckoo (NLAA) Federal Government along the United the 60-ft (18-m) wide Roosevelt (Service 2014c, pp. 300–306). States side of the U.S./Mexico border in Reservation, construction of a patrol However, although the Fort’s water California, Arizona, and New Mexico road paralleling the barrier, lighting, conservation measures are intended to (DHS 2020, entire). No critical habitat and detection technology. A significant avoid, minimize, and/or offset the was proposed along the border in New amount of water, which often flows effects of water use to the Upper San Mexico, while the border area in Texas through these drainages important to the Pedro River Unit, they also do not is not part of the Roosevelt Reservation western yellow-billed cuckoo, is being constitute a western yellow-billed (Proclamation 758 1907, entire). DHS extracted from local sources along the cuckoo conservation plan or prevent and CBP requested an exclusion for border to mix with cement in border water use or habitat loss by other portions of the Roosevelt Reservation wall construction. Upon completion of entities affecting this unit. The Fort’s located in Yuma, Pima, Santa Cruz, and construction, these areas of new barrier water conservation actions are not Cochise counties in Arizona. Their along with existing areas of barrier will sufficient to protect the San Pedro River exclusion request identified Unit 1 (CA– be used for border enforcement actions critical habitat from ongoing and future AZ 1), Unit 44 (AZ–32), Unit 45 (AZ– by USBP for the foreseeable future. DHS actions that threaten to reduce flow and 33), Unit 52 (AZ–40), Unit 20 (AZ–18), states that they will continue to western yellow-billed cuckoo suitable Unit 61 (AZ–49), Unit 16 (AZ–14), and maintain and clear vegetation within the habitat in this large unit. The Fort does Unit 21 (AZ–19). The area being Roosevelt Reservation to ensure a safe not manage or control lands covered by excluded totals 113 ac (46 km). All the operating environment for agents this unit and ground water use is only units are considered to have been patrolling and enforcing border laws on one component of western yellow-billed occupied at the time of listing and are the border. These border-security cuckoo PBFs. The Service has engaged currently occupied. Unit 1 (CA–AZ 1) activities are not compatible with in several Section 7 consultations on has been excluded due to management riparian habitat. As a result, since proposed actions that may affect from the LCR MSCP (see Exclusions designating the 60-ft (18-m) wide western yellow-billed cuckoo habitat Private or Other Non-Federal Roosevelt Reservation as critical habitat but for which the Fort has no Conservation Plans Related to Permits for the western yellow-billed cuckoo management authority including Under Section 10 of the Act). Each of would interfere with on-going border herbicide treatment, fire management, these units extend for miles north of the security operations, DHS states that the grazing, exotic plant control, mesquite border beyond the 60-ft (18 m) wide 60-ft (18-m) wide Roosevelt Reservation (breeding habitat) removal, recreation, Roosevelt Reservation (see Unit should be excluded because of national off-road vehicle use, development, and Descriptions). The following analysis security reasons. other proposed actions that may result addresses only the 60-ft (18-m) wide DHS and CBP currently have the in loss of water or suitable habitat. We Roosevelt Reservation along the border authority to conduct work within the will continue to engage in future and not additional portions of the units. 60-ft (18-m) Roosevelt Reservation to

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secure the border under existing waivers conservation efforts on areas of high assisting CBP to conduct its normal of environmental laws, including the value for certain species. Any operations and fulfilling their national ESA. These waivers cover the information about the western yellow- security mission along the southern construction and maintenance of billed cuckoo that reaches a wide border of the United States. CBP has discrete border infrastructure projects, audience, including parties engaged in identified the following activities and as issued by the Secretary of the conservation activities, is valuable and infrastructure occurring within the Interior. Congress directed DHS to would continue to encourage Roosevelt Reservation: Barrier fencing, achieve and maintain operational collaboration between DHS, CBP, and lighting systems, enforcement zones, control of the U.S. Mexico border USBP and the Service. patrol roads, cleared vegetation, (Secure Fence Act of 2006, Pub. L. 109– The border area is important because vehicular patrol operations, ongoing 367, section 2, 120 Stat. 2638 (Oct. 26, it spans riparian areas and associated border barrier construction and 2006) (8 U.S.C. 1701 note)). Congress drainages that run north-south between maintenance, and illegal immigrant foot further provided DHS with a number of Mexico and the U.S. These corridors are traffic and trespass. The designation of authorities to carry out DHS’s border migratory routes of not only western the Roosevelt Reservation may reduce security mission (85 FR 9794, February yellow-billed cuckoos, but also many CBP’s availability of unencumbered 20, 2020). One of these authorities, other migratory birds. Including the space to support its operations. By under section 102 of the Illegal Roosevelt Reservation provides excluding the 60-ft (18-m) Roosevelt Immigration Reform and Immigrant opportunities for education and public Reservation the CBP would be able to Responsibility Act (IIRIRA) of 1996, as awareness concerning migratory birds’ fulfill its mission of securing the border amended, authorized DHS to waive laws needs, particularly those of the western and conduct necessary border patrol yellow-billed cuckoo and potentially where necessary to ensure the operations as well as construct any encourages future restoration and expeditious construction of border necessary border security infrastructure. infrastructure in areas of high illegal minimization of adverse effects in areas entry (IIRIRA 2019). Per section 102 of designated. This may lead to retaining Excluding the Roosevelt Reservation IIRIRA, the Secretary of Homeland existing trees, allowing for successional from western yellow-billed cuckoo Security has waived certain laws, development of future riparian habitat, critical habitat will enable CBP to regulations, and other legal and provide for naturally functioning continue actions without a need to requirements in order to ensure the drainages to maintain or restore the consult on the possible effects of expeditious construction of barriers and environmental qualities of the sites. adverse modification to critical habitat. roads and achieve operational control of Retaining hydrological processes that CBP states that excluding critical habitat the border. As such, review of specific allow for drainages to fully function will also reduce the chances that they federally funded projects through the naturally will sustain riparian habitat will need to obtain additional waivers section 7 consultation process under the upstream and downstream of the that they might not otherwise need for Endangered Species Act is not required, Roosevelt Reservation. Inclusion of border infrastructure projects. although DHS coordinates with the these border areas delineates By excluding the Roosevelt Service concerning actions along the 60- geographically important habitat for this Reservation, we will maintain our ft (18-m) Roosevelt Reservation, where species that may otherwise remain working relationship with the DHS/ applicable. unknown by agencies and organizations CBP. The Department of the Interior Currently, CBP is authorized to access working along the border. (DOI), Department of Agriculture the project area; remove vegetation; In addition, inclusion of western (USDA), and DHS entered into a extract and use water; and create, yellow-billed cuckoo habitat within the Memorandum of Understanding (MOU) maintain, and use roads, barrier fence, critical habitat designation would be in 2006 (DHS–DOI–USDA 2006, entire). drainage, and lighting, as well as consistent with other designations of The MOU is intended to provide conduct operations involved with critical habitat for other listed species consistent goals, principles, and homeland security. Actions pertaining along the border without exclusions. guidance related to DHS, DOI, and to the current building, maintenance, The border includes designated critical USDA working together in fulfilling and operation of the border habitat for the jaguar (Panthera onca), their mandated responsibilities. The infrastructure are considered to have Yaqui chub (Gila purpurea), beautiful MOU sets goals for communication, negative effects to western yellow-billed shiner (Cyprinella formosa), Yaqui cooperation, and resolving conflicts cuckoo individuals and habitat, based catfish (Ictalurus pricei), Sonoyta mud while allowing for border security on the western yellow-billed cuckoo’s turtle (Kinosternon sonoriense operations such as: Law enforcement behaviors and biological needs. Some of longifemorale) and Sonora chub (Gila operations; tactical infrastructure the actions CBP takes within the ditaenia). installation; utilization of roads; and Roosevelt Reservation may also affect However, because of the waiver minimization and/or prevention of western yellow-billed cuckoos discussed above, which waives ESA significant impact on or impairment of immediately outside the Roosevelt requirements, the benefits of including natural and cultural resources, Reservation, and include actions such as this area within the designation are including those protected under the Act. but not limited to: Drainage design, gate relatively low, given that section 7 placement and operations, and lighting consultations are unlikely to occur. Excluding the Roosevelt Reservation footprint. from the designation of critical habitat Benefits of Exclusion—U.S./Mexico so that CBP border activities can Benefits of Inclusion—U.S./Mexico Border Lands continue could also have several Border Lands The benefits of excluding the 60-ft positive effects to western yellow-billed An important benefit of including (18-m) Roosevelt Reservation area are cuckoos. For example, border lands in a critical habitat designation is significant. CBP has been tasked with infrastructure and patrolling could help that the designation can serve to educate enforcing national security along border prevent unauthorized trespass and landowners and the public regarding the areas of the United States. The resource destruction to areas adjacent to potential conservation value of an area, Roosevelt Reservation and infrastructure the border that may impact western and it may help focus management and within the area is a key component in yellow-billed cuckoo habitat.

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Benefits of Exclusion Outweigh Benefits DHS and CBP would be required to presence of western yellow-billed of Inclusion—U.S./Mexico Border Lands consult with the Service under section cuckoo and the importance of habitat The benefits of including lands in a 7 of the Act. These consultations would protection, and, where a Federal nexus critical habitat designation include need to consider the effects on the exists, increased habitat protection for educating landowners, agencies, tribes, species and its habitat, and could be western yellow-billed cuckoo due to and the public regarding the potential more numerous, complex, or costly if protection from destruction or adverse conservation value of an area, as well as the areas are included within the critical modification of critical habitat. potentially helping to focus habitat designation. We have Additionally, continued conservation efforts on areas of high determined that exclusion of the 60-ft implementation of an ongoing (18-m) Roosevelt Reservation lands from management plan that provides equal to value for certain species and the critical habitat designation will not or more conservation than a critical maintaining consistency with other result in the extinction of the western habitat designation would reduce the areas being designated for other listed yellow-billed cuckoo. Accordingly, we benefits of including that specific area species within the Roosevelt have determined that areas totaling 12 in the critical habitat designation. Reservation. Because DHS and CBP ac (5 ha) within the (60-ft (18-m)) We evaluate the existence of a have obtained a waiver of ESA Roosevelt Reservation in Unit 44 (AZ– conservation plan when considering the requirements, the benefits of including 32) (0.6 ac (0.24 ha)), Unit 45 (AZ–33) benefits of inclusion. We consider a the area as critical habitat is minimized. (0.26 ac (0.1 ha)), Unit 52 (AZ–40) (0.67 variety of factors, including, but not Because the Roosevelt Reservation only ac (0.27 ha)), Unit 20 (AZ–18) (4 ac (2 limited to, the degree to which the extends 60 ft (18 m) along the border, ha)), Unit 61 (AZ–49) (1 ac (0.4 ha)), record of the plan supports a conclusion the amount of area associated with the Unit 16 (AZ–14) (0.6 ac (0.24 ha)), and that a critical habitat designation would exclusion is small and the Unit 21 (AZ–19) (4 ac (2 ha)), are impair the realization of benefits overwhelming majority of critical excluded under subsection 4(b)(2) of the expected from the plan, agreement, or habitat that is being designated adjacent Act because the benefits of exclusion partnership; how it provides for the to the Roosevelt Reservation remains in outweigh the benefits of inclusion and conservation of the essential physical or the final designation, allowing for the will not cause the extinction of the biological features; whether there is a educational benefits to remain. As a species. reasonable expectation that the result, the educational benefits are conservation management strategies and small. Consideration of Other Relevant actions contained in a management plan The benefits of exclusion of the Impacts will be implemented into the future; Roosevelt Reservation are significant. When identifying the benefits of whether the conservation strategies in We base this on several reasons. Firstly, inclusion for an area, we consider other the plan are likely to be effective; and the exclusion will allow DHS to conduct relevant impacts, such as the additional whether the plan contains a monitoring its mission of securing the border regulatory benefits that the area would program or adaptive management to unimpaired from the designation of receive due to the protection from ensure that the conservation measures critical habitat for the western yellow- destruction or adverse modification as a are effective and can be adapted in the billed cuckoo. Secondly, the exclusion result of actions with a Federal nexus, future in response to new information will further our partnership with DHS the educational benefits of mapping (see Policy on Exclusions (81 FR 7226 and allow for coordination of both the essential habitat for recovery of the at 7247)). Service’s and DHS’s responsibilities. We listed species, and any benefits that may After identifying the benefits of view this as a significant benefit of result from a designation due to State or inclusion and the benefits of exclusion, exclusion. Thirdly, exclusion would Federal laws that may apply to critical we carefully weigh the two sides to allow for CBP to continue conducting habitat. The western yellow-billed evaluate whether the benefits of border infrastructure and patrolling cuckoo migrates and is present in the exclusion outweigh those of inclusion. thereby helping to prevent unauthorized U.S. mainly during its breeding season If our analysis indicates that the benefits trespass and resource destruction to (generally May through September). of exclusion outweigh the benefits of areas adjacent to the Roosevelt Regardless of the time of year, proposed inclusion, we then determine whether Reservation that may affect western actions with a Federal nexus that may exclusion would result in extinction of yellow-billed cuckoo habitat. We remove or reduce the quality or quantity the species. If exclusion of an area from reviewed and evaluated the benefits of of critical habitat must undergo Section critical habitat will result in extinction, inclusion and benefits of exclusion for 7 consultation for an adverse we will not exclude it from the the 60-ft (18-m) Roosevelt Reservation modification analysis. Similarly, the designation. for the DHS to conduct its national listing of the western yellow-billed Exclusions Based on Other Relevant security operations and have cuckoo as a threatened species ensures Impacts determined that the benefits of that, regardless of the time of year, excluding outweigh the benefits of consultation under the jeopardy Based on the information provided by including the areas. standard in either section 7 or section entities seeking exclusion, any 10 of the Act would also be required in additional public comments we Exclusion Will Not Result in Extinction areas where members of the species are received, and the best scientific data of the Species—U.S./Mexico Border known to occur. When considering the available, we evaluated whether certain Lands benefits of exclusion, we consider, lands in the critical habitat were Because of the 2006 MOU, CBP has a among other things, whether exclusion appropriate for exclusion from this final track record of communicating with the of a specific area is likely to result in designation under section 4(b)(2) of the Service and of remaining committed to conservation, or in the continuation, Act. If our analysis indicated that the seeking solutions to reduce harm along strengthening, or encouragement of benefits of excluding lands from the the border to listed species and their partnerships. final designation outweighed the habitat, including the western yellow- In the case of western yellow-billed benefits of designating those lands as billed cuckoo. In addition, if the cuckoo, the benefits of critical habitat critical habitat, then we identified those operation waivers are discontinued, include public awareness of the areas for the Secretary to exercise his

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discretion to exclude those lands from assurances (CCAAs); whether there are that might occur because of the the final designation, unless exclusion other conservation agreements and designation. would result in extinction. partnerships that would be encouraged In the paragraphs below, we provide In considering whether to exclude by designation of, or exclusion from, a detailed balancing analysis of the areas under section 4(b)(2) of the Act, critical habitat; whether there are tribal areas being excluded under section we consider a number of factors conservation plans and partnerships or 4(b)(2) of the Act. Table 3 below including whether there are permitted whether inclusion or exclusion of provides approximate areas (ac, ha) of conservation plans covering the species specific areas could affect the lands that meet the definition of critical in the area such as HCPs, safe harbor government-to-government relationship habitat but that we are excluding from agreements (SHAs), or candidate of the United States with tribal entities; this final critical habitat rule under conservation agreements with and whether there are social impacts section 4(B)(2) of the Act.

TABLE 3—AREAS EXCLUDED BY CRITICAL HABITAT UNIT FOR THE WESTERN YELLOW-BILLED CUCKOO

Proposed critical habitat, Area excluded Final critical habitat Unit Unit name (ac (ha)) (ac (ha)) (ac (ha))

1 CA/AZ–1 ...... Colorado River 1 ...... 82,138 (33,240) 82,138 (33,240) 0 2 CA/AZ–2 ...... Colorado River 2 ...... 23,589 (9,546) 23,589 (9,546) 0 3 AZ–1 ...... Bill Williams River ...... 3,389 (1,371) 3,389 (1,371) 0 4 AZ–2 ...... Alamo Lake ...... 2,793 (1,130) 2,793 (1,130) 0 7 AZ–5 ...... Upper Verde River ...... 6,047 (2,447) 673 (272) 5,188 (2,100) 9 AZ–7 ...... Beaver Creek ...... 2,082 (842) 1 (<1) 2,081 (842) 10 AZ–8 ...... L. Verde R./West Clear Ck ...... 2,178 (882) 44 (18) 2,134 (864) 11 AZ–9A ...... Horseshoe Dam ...... 2,743 (1,110) 76 (31) 2,667 (1,079) 11 AZ–9B ...... Horseshoe Dam ...... 1,231 (489) 321 (130) 782 (316) 12 AZ–10 ...... Tonto Creek ...... 3,669 (1,485) 489 (198) 3,181 (1,287) 13 AZ–11 ...... Pinal Creek ...... 419 (169) 380 (154) 0 16 AZ–14 ...... Upper San Pedro River ...... 31,060 (12,569) 0.6 (0.24) 31,059 (12,569) 17 AZ–15 ...... Lower San Pedro/Gila R ...... 23,400 (9,470) 445 (184) 22,397 (9,064) 20 AZ–18 ...... Santa Cruz River ...... 9,543 (3,862) 4 (2) 9,538 (3,860) 21 AZ–19 ...... Black Draw ...... 1,599 (647) 4 (2) 1,595 (646) 22 AZ–20 ...... Gila River 1 ...... 20,724 (8,392) 10,184 (4,121) 10,540 (4,266) 23 AZ–21 ...... Salt River ...... 2,590 (1,048) 2,009 (813) 581 (235) 27 AZ–25 ...... Aravaipa Creek ...... 3,329 (1,347) 392 (159) 2,937 (1,189) 28 AZ–26 ...... Gila River 2 ...... 8,588 (3,195) 1,467 (594) 5,836 (2,362) 31 AZ–29 ...... Big Sandy ...... 20,179 (8,166) 500 (202) 15,231 (6,164) 33 NM–2 ...... Gila River ...... 4,177 (1,690) 1,142 (462) 3,036 (1,228) 35 NM–4 ...... Upper Rio Grande 1 ...... 1,830 (741) 1,312 (531) 518 (210) 36 NM–5 ...... Upper Rio Grande 2 ...... 1,173 (475) 1,173 (475) 0 37 NM–6A ...... Middle Rio Grande ...... 7,238 (2,929) 7,238 (2,929) 0 37 NM–6B ...... Middle Rio Grande ...... 61,343 (24,825) 11,367 (4,600) 46,595 (18,856) 39 NM–8A ...... Caballo Delta North ...... 190 (77) 190 (76) 0 39 NM–8B ...... Caballo Delta South ...... 155 (63) 155 (63) 0 40 NM–9 ...... Animas ...... 608 (246) 608 (246) 0 41 NM–10 ...... Selden Cyn./Radium Sprs ...... 237 (96) 237 (96) 0 44 AZ–32 ...... California Gulch ...... 558 (226) 0.6 (0.24) 558 (226) 45 AZ–33 ...... Sycamore Canyon ...... 601 (243) 0.26 (0.10) 601 (243) 52 AZ–40 ...... Pena Blanca Canyon ...... 484 (196) 0.67 (0.27) 483 (195) 61 AZ–49 ...... Washington Gulch ...... 587 (237) 1 (0.4) 585 (237) 64 CA–2 ...... South Fork Kern R. Valley ...... 2,640 (1,068) 261 (106) 2,379 (963) 65 ID–1 ...... Snake River 1 ...... 9,655 (3,907) 4,023 (1,628) 5,623 (2,276) 68 CO–1 ...... Colorado River ...... 4,002 (1,620) 866 (350) 3,137 (1,269) 70 UT–1 ...... Green River 1 ...... 28,381 (11,486) 15,017 (6,077) 13,273 (5,371)

Total ...... 172,490 (69,808) ...... Note: Areas may not add due to rounding.

Private or Other Non-Federal mitigate negative effects on the species partnerships when we undertake a Conservation Plans or Agreements and caused by activities on or adjacent to the discretionary section 4(b)(2) exclusion Partnerships, in General area covered by the plan. Conservation analysis. A non-exhaustive list of factors plans or agreements can be developed that we will consider for non-permitted We sometimes exclude specific areas by private entities with no Service plans or agreements is shown below. from critical habitat designations based involvement, or in partnership with the in part on the existence of private or These factors are not required elements other non-Federal conservation plans or Service. of plans or agreements, and some agreements and their attendant We evaluate a variety of factors to elements may not apply to a particular partnerships. A conservation plan or determine how the benefits of any plan or agreement. agreement describes actions that are exclusion and the benefits of inclusion (i) The degree to which the plan or designed to provide for the conservation are affected by the existence of private agreement provides for the conservation needs of a species and its habitat, and or other non-Federal conservation plans of the species or the essential physical may include actions to reduce or or agreements and their attendant

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or biological features (if present) for the their small size and being made up of recruitment of replacement vegetation. species. upland habitat not containing the PBFs. Livestock grazing is excluded from the (ii) Whether there is a reasonable The Alamo Lake Wildlife Area (AWA) riparian areas on the upper end of expectation that the conservation was created under provisions of the Fish Alamo Lake and the lower portions of management strategies and actions and Wildlife Coordination Act (16 the Santa Maria and Big Sandy Rivers. contained in a management plan or U.S.C. 661 et seq.), Public Land Order Feral burro management objectives are agreement will be implemented. 492 (PLO 492), and the General Plan to monitor and limit use of riparian (iii) The demonstrated agreement between the Secretary of the vegetation such that annual bark implementation and success of the Army, Secretary of the Interior, and stripping of live trees does not exceed chosen conservation measures. Director of Arizona Game and Fish, 3 percent in any of the key monitoring (iv) The degree to which the record of signed January 19, 1968 (Arizona Game areas (AGFD 2012, p. 10). Fencing may the plan supports a conclusion that a and Fish Department–Arizona State be needed to exclude unauthorized critical habitat designation would Parks (AGFD–ASP) 1997). A lease livestock and feral burros, exclude elk, impair the realization of benefits agreement between the Arizona Game control off-highway-vehicle access, and expected from the plan, agreement, or and Fish Department Commission and better manage authorized livestock partnership. the Corps was signed in 1970, (AGFD 2012, pp. 10–12). (v) The extent of public participation establishing the AWA for fish and Although the original authority for in the development of the conservation wildlife conservation and management Corps’ Alamo Dam and Lake was for plan. purposes (AGFD–ASP 1997). The flood control, the Water Resources (vi) The degree to which there has present lease area encompasses Development Act of 1996 (Pub. L. 104– been agency review and required approximately 22,586 ac (9,140 ha). 303) authorized the operation of the determinations (e.g., State regulatory Public input was solicited and dam to provide fish and wildlife requirements), as necessary and addressed in development of the AWA benefits both upstream and downstream appropriate. Management Plan and the NEPA review of the dam as long as these actions do (vii) Whether National Environmental process (AGFD–ASP 1997). The not reduce flood control and recreation Policy Act (NEPA; 42 U.S.C. 4321 et corresponding AWA Property benefits. A multi-year process is seq.) compliance was required. Operational Management Plan underway to develop a long-term (viii) Whether the plan or agreement addressing the operations of the operation plan that benefits contains a monitoring program and property, together with the budget, is environmental needs while meeting the adaptive management to ensure that the updated as needed to reflect the changes dam’s maintenance needs (USACE 2020, conservation measures are effective and in operational management (AGFD entire). Environmental needs include can be modified in the future in 2012). management to encourage regeneration response to new information. We identified western yellow-billed and maintenance of riparian vegetation. Unit 4 (AZ–2) and Portions of Unit 31 cuckoo critical habitat along the Big Revised management is to benefit (AZ–29)—Alamo Lake Wildlife Area Sandy, Santa Maria, and Bill Williams southwestern willow flycatchers and Management Plan Rivers, which are part of Alamo Lake. western yellow-billed cuckoos (USACE The AWA Management Plan describes 2020, pp. 14–16). In the revised proposed rule, we the unique riparian, wetland, and identified approximately 2,793 ac (1,130 aquatic aspects of the area for a variety Benefits of Inclusion—AWA ha)) as critical habitat in Alamo Lake of species, specifically targeting the Management Plan Unit 4 (AZ–2) and 500 ac (202 ha) in a southwestern willow flycatcher for As discussed above under Effects of portion of the Big Sandy River Unit 31 management and including the western Critical Habitat Designation Section 7 (AZ–29). Approximately 1,840 ac (745 yellow-billed cuckoo as a species of Consultation, Federal agencies, in ha) is in Federal ownership, and 953 ac wildlife concern. Two of the specific consultation with the Service, must (386 ha) is in other unclassified resources are directed toward the ensure that their actions are not likely ownership but most likely Arizona State habitat needs of the southwestern to jeopardize the continued existence of Park lands. The vast majority of the willow flycatcher and the western any listed species or result in the critical habitat is within the Alamo Lake yellow-billed cuckoo: (1) Maintain and destruction or adverse modification of State Wildlife Area, which is made up enhance aquatic and riparian habitats to any designated critical habitat of such of Corps and State Park Lands. Small benefit wildlife; and (2) restore, manage, species. The difference in the outcomes upland areas adjacent to the wildlife and enhance habitats for wildlife of of the jeopardy analysis and the adverse area belong to BLM. The critical habitat special concern. Large Fremont modification analysis represents the area is a continuous 6-mi (10-km)-long cottonwood and Goodding’s willow regulatory benefit and costs of critical segment of the Santa Maria River and a forests, mesquite bosque, and small habitat. A critical habitat designation 3-mi (5-km)-long continuous segment of areas of wetland currently exist along requires Federal agencies to consult on the Big Sandy River that feeds into the the Big Sandy, Santa Maria, and upper whether their activity would destroy or Santa Maria River above Alamo Lake Bill Williams Rivers. Increasing and adversely modify critical habitat to the State Park in Mohave and La Paz improving these habitats will benefit point where recovery could not be Counties, Arizona. We are excluding the riparian- and wetland-dependent achieved. It is possible that in the entire Alamo Lake area (Alamo Lake species (AGFD 2012, pp. 4–6). The future, Federal funding or permitting (Unit 4, AZ–2: 2,793 ac (1,130 ha)) and objective for maintaining and enhancing could occur on this AGFD property in portions of the Big Sandy River (Unit riparian habitat includes (a) Maintaining conjunction with Corps lands, triggering 31, AZ–29: 500 ac (202 ha) within the a reservoir level sufficient to ensure consultation obligations for species’ Alamo Lake State Wildlife Area from suitable soil moisture conditions in the presence and critical habitat impacts. the final designation of western yellow- mixed riparian forest, and (b) managing Recent section 7 consultations with the billed cuckoo critical habitat under feral burros (Equus asinus), elk (Cervus Corps have addressed western yellow- section 4(b)(2) of the Act. The BLM canadensis), and eliminating trespass billed cuckoos and their habitat along, lands adjacent to the wildlife area were cattle to ensure that browsing does not downstream, and in inflows to Alamo removed from the designation due to harm existing habitat or impair Lake and we anticipate we will be

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receiving another request for receives from listing under the Act, such management and recovery without the consultation regarding a change in that designating critical habitat may designation of critical habitat. Ongoing operations at Alamo Dam. only result in minimal additional public education by AGFD and other Because the leased property is owned benefits. entities will continue without by the Corps, we anticipate future designation of critical habitat. The Benefits of Exclusion—AWA Federal actions that may impact western outreach highlights the value of the Management Plan yellow-billed cuckoos would be AWA for riparian habitat and riparian- proposed by and coordinated with A considerable benefit from excluding dependent birds like the yellow-billed Corps. Ongoing planning among AWA from western yellow-billed cuckoo. The AWA is one of TNC’s Federal, State, and nongovernment cuckoo critical habitat is the Sustainable Rivers Project and is organizations on long-term management maintenance and strengthening of included on the national online Wildlife of Alamo Lake to benefit riparian habitat ongoing conservation partnerships. We Viewing Areas (Watchable Wildlife, Inc. and the subsequent section 7 identified this area for possible 2020). AGFD devotes a web page to consultation on proposed actions to exclusion based on the existence of a AWA on its own wildlife viewing western yellow-billed cuckoos is likely management plan. AGFD’s management website (AGFD 2020), emphasizing to result in improving habitat to support of AWA achieves greater protection than protection, restoration, management and the species even if critical habitat is not would be achieved through designation enhancement of wildlife habitat and designated. It is possible that the of critical habitat alone. The AWA associated wildlife populations. AGFD’s designation of critical habitat may also management plan directs resources to stated management philosophy includes provide a benefit by identifying the maintain and enhance riparian habitat allowing for nonconflicting wildlife- geographic area where the western and restore, manage, and enhance associated recreation and other agency yellow-billed cuckoo occurs, raising the habitat for wildlife of special concern and public uses. level of awareness for managers for both including the western yellow-billed Because so many important areas with Federal and non-Federal entities. cuckoo. To maintain and enhance western yellow-billed cuckoo habitat However, because the species has been riparian habitat, AGFD commits to occur on non-Federal lands, considered for listing since 2001 and ensuring the reservoir level maintains collaborative relationships with non- listed since 2014, areas where the proper soil moisture conditions and Federal landowners are important in species occurs (including Alamo Lake) controls livestock and off-highway recovering the species. The western are well known and land managers vehicle trespass. yellow-billed cuckoo and its habitat are understand the value and Although recreation and wildlife expected to benefit substantially from responsibilities of maintaining habitat resources at Alamo Lake are managed by voluntary landowner management for a listed migratory species. the AGFD under agreement with the actions that implement appropriate and Another important benefit of Corps, the conservation space of Alamo effective conservation strategies. In including lands in a critical habitat Lake and Alamo Dam is owned and the addition, we have determined that by designation is that it can serve to inform dam operated by the Corps. Alamo Dam providing regulatory relief by excluding and educate landowners, agencies, is operated primarily for flood control State managed areas from critical tribes, and the public regarding the (as compared to water storage and habitat, we can provide incentives to potential conservation value of an area, delivery for other reservoirs) and other non-Federal landowners for and may help focus conservation efforts typically remains at low levels, additional conservation. Where on areas of high value for certain permitting occupancy of western consistent with the discretion provided species. Any information about the yellow-billed cuckoo and southwestern by the Act, it is beneficial to implement western yellow-billed cuckoo that willow flycatcher habitat. The Corps has policies that provide positive incentives reaches a wide audience, including consulted with the Service on dam to non-Federal landowners to parties engaged in conservation, birding, operations and the potential effects to voluntarily conserve natural resources hunting, livestock grazing, recreation, these species. In addition, we expect and that remove or reduce disincentives and sportfishing activities, is valuable. that ongoing conservation efforts in this to conservation (Wilcove et al. 1996, The designation of critical habitat may area will continue with or without entire; Bean 2002, pp. 1–7). Thus, it is also affect the implementation of critical habitat designation, limiting the important for the western yellow-billed Federal laws, such as the Clean Water benefits of including the area. cuckoo recovery to build on continued Act. These laws analyze the potential Consequently, after reviewing the best conservation activities such as these for projects to significantly affect the available information, we have with a proven partner, and to provide environment. Critical habitat may signal determined that the benefits of positive incentives for other non- the presence of sensitive habitat that excluding these Federal lands as critical Federal landowners who might be could otherwise be missed in the review habitat is substantial. considering implementing voluntary process for these other environmental Our collaborative relationship with conservation activities, but who have laws; however, the listing of these AGFD makes a difference in our concerns about incurring incidental species, and consultations that have partnership with the numerous regulatory or economic impacts. already occurred already provide this stakeholders involved with benefit. In addition, a multi-year process southwestern willow flycatcher and Benefits of Exclusion Outweigh the underway among the Service, western yellow-billed cuckoo Benefits of Inclusion—Alamo Lake Reclamation, the Corps, AGFD, Arizona management and recovery and Wildlife Area State Parks, TNC, USGS, and BLM to influences our ability to form We have determined that the benefits develop a long-term operation plan partnerships with others. A multi- of exclusion of AWA, with the along the Bill Williams River (USACE agency team is currently engaged in implementation of AGFD’s management 2020, entire), provides for additional long-term management planning to plan, outweighs the benefits of informational and educational benefits. benefit riparian habitat downstream and inclusion because the AGFD is currently Therefore, in this case we view the upstream of Alamo Lake (USACE 2020, managing AWA western yellow-billed regulatory benefit as being largely entire). Our partners will continue to cuckoo and southwestern willow redundant with the benefit the species work on western yellow-billed cuckoo flycatcher breeding sites successfully

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and is committed to maintaining and We are committed to working with Unit 7 (AZ–5) Upper Verde River— enhancing aquatic and riparian habitats AGFD to further the conservation of the Upper Verde River Wildlife Area to benefit wildlife and to restore, western yellow-billed cuckoo and other We identified 6,047 ac (2,447 ha) manage, and enhance habitat for endangered and threatened species. As within Unit 7 as critical habitat. The wildlife of special concern. Per the evident from ongoing management to Upper Verde River Wildlife Area AWA management plan, AGFD has protect habitat, AGFD will continue to (UVRWA), owned and managed by the committed to managing burros to limit implement its management plans and Arizona Game and Fish Department riparian vegetation damage to no greater play an active role to protect western (AGFD), is located approximately 8 mi than 3 percent and fencing to exclude yellow-billed cuckoos and their habitat. (12 km) north of Chino Valley in unauthorized livestock, burros, elk, and Therefore, in consideration of the Yavapai County, Arizona. The property off-highway vehicles (AGFD 2012, pp. relevant impact to our partnership with consists of four parcels located along the 10–12). These actions serve to manage and the ongoing conservation upper Verde River and lower Granite and protect habitat needed for western management practices of AGFD, we Creek. The AGFD also manages State yellow-billed cuckoo above those determined that the significant benefits Trust lands located adjacent to two of conservation measures which may be of exclusion outweigh the benefits of the deeded parcels. The primary required if the area was designated as inclusion in the critical habitat management emphasis for the UVRWA critical habitat. In making this finding, designation. property is to manage, maintain, and we have weighed the benefits of Exclusion Will Not Result in Extinction enhance riparian habitat and maintain exclusion against the benefits of of the Species—Alamo Lake State native fish diversity while the including these lands as critical habitat. Past, present, and future coordination Wildlife Area secondary management emphases are with AGFD has provided and will We find that the exclusion of these environmental education and continue to provide sufficient education lands will not lead to the extinction of compatible wildlife oriented recreation regarding western yellow-billed cuckoo the western yellow-billed cuckoo (AGFD 2019, entire). The site is habitat conservation needs on these because long-term AGFD land identified as an Important Bird Area lands, such that there would be minimal management commitments will ensure (IBA) by the National Audubon Society, additional educational benefit from the long-term persistence and protection and a monitoring program in designation of critical habitat. The of western yellow-billed cuckoo habitat partnership with Prescott Audubon and incremental conservation and benefit of at Alamo Lake and surrounding inflows. Audubon Arizona is ongoing (National designating critical habitat on part of As discussed above under Effects of Audubon Society 2020f, entire). The AWA would largely be redundant with Critical Habitat Designation Section 7 UVRWA property has four the combined benefits of the existing Consultation, if a Federal action or noncontiguous parcels of private land, management. Therefore, the incremental permitting occurs, the known presence which collectively include conservation and regulatory benefits of of western yellow-billed cuckoos or approximately 3 mi (5 km) of the upper designating critical habitat AWA are their habitat would require evaluation Verde River, draining easterly from the minimal. under the jeopardy standard of section confluence with Granite Creek to the The benefits of designating critical 7 of the Act, even absent the designation Prescott National Forest boundary 3.5 habitat for the western yellow-billed of critical habitat, and thus will protect mi (5.6 km) downstream. Riparian cuckoo along AWA are relatively low in the species against extinction. Planning vegetation is dominated by Arizona ash, comparison to the benefits of exclusion. among Federal and State agencies, boxelder, Arizona walnut, and netleaf The mentioned long-term land including AGFD, is underway to hackberry (AGFD 2019, pp. 6–7). Some management commitments in the AWA develop and implement a strategy to tamarisk is interspersed with native tree Management Plan, public education and manage Alamo Dam releases to benefit species. Lower Granite Creek supports a awareness of the riparian value of the western yellow-billed cuckoo riparian well-developed narrowleaf cottonwood AWA, and continuation of a habitat upstream as well as downstream. (Populus acuminata) riparian forest. conservation partnership will help We are engaged in this planning phase We received comments from the foster the maintenance and and anticipate section 7 consultation on AGFD requesting an exclusion for 464 development of western yellow-billed changed operations of Alamo Dam to ac (188 ha) of AGFD land and 18 ac (7 cuckoo habitat. The AWA management benefit riparian habitat. Collectively, ha) of State Trust lands from the final plan outlines actions and commits to these elements provide assurances that designation of western yellow-billed tasks that will enhance not only the the western yellow-billed cuckoo will cuckoo critical habitat under section western yellow-billed cuckoo and its not go extinct as a result of excluding 4(b)(2) of the Act. The analyses habitat, but other riparian species and these riparian habitats from the critical associated with this request appear the overall health of the riparian habitat designation. After weighing the below. ecosystem. benefits of including western yellow- Benefits of Inclusion—Upper Verde Exclusion of these lands from critical billed cuckoo critical habitat against the habitat will help preserve and benefit of exclusion, we have concluded River Wildlife Area strengthen the conservation partnership that the benefits of excluding the AWA As discussed above under Effects of we have developed with AGFD and the with long-term AGFD management Critical Habitat Designation Section 7 Corps, as well as foster future commitments outweigh those that Consultation, Federal agencies, in partnerships and development of would result from designating this area consultation with the Service, must management plans. We anticipate that as critical habitat. We have therefore ensure that their actions are not likely greater western yellow-billed cuckoo excluded the entire Alamo Lake area to jeopardize the continued existence of conservation can be achieved through (Unit 4, AZ–2: 2,793 ac (1,130 ha)) and any listed species or result in the these management actions and portions of the Big Sandy River (Unit destruction or adverse modification of relationships than through what are 31, AZ–29: 500 ac (202 ha)) within the any designated critical habitat of such likely to be rare consultations as to AWA from this final critical habitat species. The difference in the outcomes impacts of Federal projects on designation pursuant to section 4(b)(2) of the jeopardy analysis and the adverse designated critical habitat. of the Act. modification analysis represents the

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regulatory benefit and costs of critical the UVRWA and the area being used by addition, we have determined that by habitat. A critical habitat designation the western yellow-billed cuckoo, as providing regulatory relief by excluding requires Federal agencies to consult on evidenced by the BO described above. State managed areas from critical whether their activity would destroy or There is no demonstrable need for the habitat, we can provide incentives to adversely modify critical habitat to the educational aspect of critical habitat other non-Federal landowners for point where recovery could not be designation, and the site’s current additional conservation. Where achieved. It is possible that in the management does not require any consistent with the discretion provided future, Federal funding or permitting additional conservation focus. by the Act, it is necessary to implement could occur on these State-owned and Therefore, the incremental benefits of a policies that provide positive incentives managed parcels for which a critical western yellow-billed cuckoo to private landowners to voluntarily habitat designation may require designation within the UVRWA would conserve natural resources and that consultation to analyze the impacts of be minimal. remove or reduce disincentives to the project on western yellow-billed conservation (Wilcove et al. 1996, Benefits of Exclusion—Upper Verde cuckoo habitat. For example, a Corps entire; Bean 2002, pp. 1–7). Thus, River Wildlife Area permit was required for the Salt River western yellow-billed cuckoo recovery Project (SRP) to construct the Upper A considerable benefit from excluding will build on continued conservation Verde River Monitoring Flume project AGFD-owned and managed lands in the activities such as these with a proven to monitor Verde River discharge. The UVRWA as western yellow-billed partner, and will provide positive flume was constructed on the Campbell cuckoo critical habitat is the incentives for other private landowners Ranch property, one of the maintenance and strengthening of who might be considering implementing aforementioned parcels within the ongoing conservation partnerships with voluntary conservation activities, but UVRWA. The Biological Opinion (BO) AGFD, Prescott Audubon, and Audubon who have concerns about incurring on the SRP flume project (Service 2003) Arizona through designation as the incidental regulatory or economic was transmitted to the Corps prior to the Upper Verde River State Wildlife Area impacts. listing of the western yellow-billed Important Bird Area (National Audubon Benefits of Exclusion Outweigh the cuckoo as a threatened species, the Society 2020f, entire). Although not all Benefits of Inclusion—Upper Verde flume remains operational and thus sites AGFD manages qualify for River Wildlife Area constitutes a federally authorized or exclusion, the AGFD has demonstrated permitted activity for which a partnership with the Service by We have determined that the benefits consultation in the future may be becoming a conservation partner in of exclusion of 464 ac (188 ha) of AGFD required. conducting surveys and developing and land and 18 ac (7 ha) of State Trust Another important benefit of implementing management plans (Hofer lands on the Upper Verde River within including lands in a critical habitat 2015a, entire; Hofer 2015b, entire; the AGFD UVRWA, considering the designation is that it can serve to Service 2019a, pp. 11–14, 16–17). management of the property, outweigh educate landowners, agencies, tribes, The success of AGFD’s management the benefits of inclusion because current and the public regarding the potential of the UVRWA is demonstrated by the management efforts maintain the conservation value of an area, and may consistent detection of western yellow- physical or biological features necessary help focus conservation efforts on areas billed cuckoos and other obligate to develop, maintain, recycle, and of high value for certain species. Any riparian birds (National Audubon protect essential habitat essential for information about the western yellow- Society 2020f, entire). We expect to western yellow-billed cuckoo billed cuckoo that reaches a wide continue work and partner with the conservation. These actions serve to audience, including parties engaged in AGFD on activities to benefit the manage and protect habitat needed for conservation activities, is valuable. The western yellow-billed cuckoo based on western yellow-billed cuckoo above designation of critical habitat may also our existing working relationship and those conservation measures which may affect the implementation of Federal coordination activities with the State. be required if the area was designated as laws, such as the Clean Water Act. Exclusion of this area from the critical habitat. In making this finding, These laws analyze the potential for designation will maintain and we have weighed the benefits of projects to significantly affect the strengthen the partnership between the exclusion against the benefits of environment. Critical habitat may signal Service and AGFD. Our collaborative including these lands as critical habitat. the presence of sensitive habitat that relationship with AGFD supports our Past, present, and future coordination could otherwise be missed in the review partnership with the numerous with AGFD has provided and will process for these other environmental stakeholders involved with western continue to provide sufficient education laws. yellow-billed cuckoo management and regarding western yellow-billed cuckoo AGFD, Prescott Audubon, and recovery and influences our ability to habitat conservation needs on the Audubon Arizona have surveyed, and form partnerships with others. Concerns UVRWA, such that there would be continue to survey the UVRWA, and over perceived added regulation minimal additional educational benefit western yellow-billed cuckoos have potentially imposed by critical habitat from designation of critical habitat. The been detected on the property (National could harm this collaborative incremental conservation and benefit of Audubon Society 2020f, entire). The relationship. designated critical habitat on AGFD- stated management emphases of the Because so many important areas with owned lands in the UVRWA would UVRWA—riparian habitat, native fish western yellow-billed cuckoo habitat largely be redundant with the combined diversity, environmental education, and occur on State lands, collaborative benefits of the existing management. compatible wildlife oriented relationships with the States will be Therefore, the incremental conservation recreation—are wholly consistent with essential in order to recover the species. and regulatory benefits of designating maintaining, enhancing, and potentially The western yellow-billed cuckoo and critical habitat on AGFD lands along the expanding habitat suitable for western its habitat are expected to benefit Upper Verde River are minimal. yellow-billed cuckoos. The Corps, substantially from management actions The benefits of designating critical which implements the Clean Water Act, that implement appropriate and habitat for the western yellow-billed is already aware of riparian habitat on effective conservation strategies. In cuckoo within the UVRWA are

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relatively low in comparison to the of Critical Habitat Designation Section 7 habitat for nesting southwestern willow benefits of exclusion. The management Consultation, if a Federal action or flycatchers and western yellow-billed of the UVRWA and continuation of a permitting occurs, the known presence cuckoos. conservation partnership will continue of western yellow-billed cuckoos or Benefits of Inclusion—Freeport to help foster the maintenance and their habitat would require evaluation McMoRan Management Plan development of western yellow-billed under the jeopardy standard of section cuckoo habitat. We anticipate that 7 of the Act, even absent the designation As discussed above under Effects of greater western yellow-billed cuckoo of critical habitat, and thus will protect Critical Habitat Designation Section 7 conservation can be achieved through the species against extinction. While Consultation, Federal agencies, in these management actions and future section 7 consultations along the consultation with the Service, must relationships than through designation Upper Verde River are likely to be ensure that their actions are not likely of critical habitat, because actions with infrequent, the routine implementation to jeopardize the continued existence of a Federal nexus are likely to be rare. of the UVRWA management plan any listed species or result in the On the other hand, the benefits of provide assurances that the western destruction or adverse modification of excluding AGFD-owned lands within yellow-billed cuckoo will not go extinct any designated critical habitat of such the UVRWA along the Upper Verde as a result of excluding these lands from species. The difference in the outcomes River are considerable. The UVRWA the critical habitat designation. of the jeopardy analysis and the adverse already exhibits riparian vegetation Accordingly, we have determined that modification analysis represents the occupied by western yellow-billed 673 ac (272 ha) of the Upper Verde regulatory benefit and costs of critical cuckoos and AGFD’s management of the River Wildlife Area and other State habitat. property is focused on maintaining that lands are excluded under subsection It is possible that in the future, riparian habitat. Exclusion of these 4(b)(2) of the Act because the benefits of Federal funding or permitting could lands from critical habitat will help excluding these lands from critical occur on this privately owned and preserve and strengthen the habitat for the western yellow-billed managed segment of Pinal Creek where conservation partnership we have cuckoo outweigh the benefits of their a critical habitat designation may developed with AGFD, reinforce those inclusion, and the exclusion of these benefit western yellow-billed cuckoo we are building with other entities, and lands from the designation will not habitat. For example, a Corps permit foster future partnerships and result in the extinction of the species. was needed to implement FMC’s development of management plans remediation program within Pinal whereas inclusion will negatively Unit 13 (AZ–11) Pinal Creek—Freeport Creek. This permit and associated impact our relationships with AGFD. McMoRan Management Plan section 7 consultation resulted in We are committed to working with We have identified approximately 380 surveys being conducted for the AGFD to further western yellow-billed ac (154 ha) as critical habitat in Pinal southwestern willow flycatcher. The cuckoo conservation and other Creek for exclusion, owned by the area was previously thought not to endangered and threatened species. private company, Freeport-McMoRan contain nesting occurrences of the AGFD will continue to implement their Incorporated (FMC). FMC has species. The results of the surveys UVRWA management plan and play an ownership and management confirmed nesting and breeding active role to protect western yellow- responsibility for a portion of Pinal occurrences of the southwestern willow billed cuckoos and their habitat. Creek in Gila County, Arizona. FMC has flycatcher and its habitat. The Therefore, in consideration of the been managing the area since 1998, and implementation of the habitat relevant impact to our partnership with actively implementing conservation management conditions included in the AGFD, and the ongoing conservation measures for improving the riparian Corps permit have been a significant management practices of AGFD, we habitat for the southwestern willow contributing factor in causing both determined that the significant benefits flycatcher and developed a management species to become established. of exclusion outweigh the benefits of plan in 2012 (FMC 2012, entire). However, now that both species are inclusion in the critical habitat Conservation actions being known to occur along Pinal Creek, the designation. We have therefore implemented on FMC lands include benefits of a critical habitat designation excluded these lands from this final control of exotic riparian plant species, are reduced to the possible incremental critical habitat designation pursuant to improved cattle management, fencing, benefit of critical habitat because the section 4(b)(2) of the Act. monitoring, and limiting access to the designation would no longer be the sole site in order to foster the development catalyst for initiating section 7 Exclusion Will Not Result in Extinction of native riparian habitat. From 1999 to consultation. Also, because this stream of the Species—Upper Verde River 2007, the water and land management segment is privately owned and is Wildlife Area actions implemented resulted in an 88 primarily being managed for We also find that the exclusion of percent increase in total riparian environmental remediation and habitat these lands will not lead to the vegetation volume within the area (FMC improvement, we do not anticipate extinction of the western yellow-billed 2012, p. 11). In 2015, FMC revised its future Federal actions to impact the cuckoo, nor hinder its recovery based on 2012 southwestern willow flycatcher current remediation action or habitat AGFD’s track record of management of management plan for the proposed improvements associated with the Corps the UVRWA will ensure the long-term segment of Pinal Creek to include the permit and continued management persistence and protection of western western yellow-billed cuckoo (FMC actions. Because of the lack of past yellow-billed cuckoo habitat on the 2015, entire). This revised plan, section 7 consultations within this Pinal Upper Verde River. AGFD has shown a effective on designation of final critical Creek segment of privately owned land, long-term commitment to maintaining habitat with no termination date, the reduced likelihood of future Federal and enhancing areas within its commits FMC to continue implementing actions altering the current environment jurisdiction to benefit the western the land management actions initiated clean-up and management of this stream yellow-billed cuckoo and we expect through a Corps permit that have segment, the presence of southwestern such commitment to continue in the resulted in the improved abundance, willow flycatcher and western yellow- future. As discussed above under Effects distribution, and quality of riparian billed cuckoo territories, and the

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commitment to continue implementing Southwestern Willow Flycatcher landowners to voluntarily conserve land management actions that maintain Recovery Plan, and by solidifying their natural resources and that remove or southwestern willow flycatcher and conservation actions in management reduce disincentives to conservation western yellow-billed cuckoo habitat, plans submitted to us for the (Wilcove et al. 1996, entire; Bean 2002, the benefits of a critical habitat southwestern willow flycatcher along pp. 1–7). Thus, it is essential for the designation on this lower segment of the upper Gila River at the U-Bar Ranch western yellow-billed cuckoo recovery Pinal Creek are minimized. in New Mexico (see below) and for the to build on continued conservation Another important benefit of spikedace and loach minnow (2007 and activities such as these with a proven including lands in a critical habitat 2011). They have also have partner, and to provide positive designation is that it can serve to demonstrated a willingness to conserve incentives for other private landowners educate landowners, agencies, tribes, southwestern willow flycatcher and who might be considering implementing and the public regarding the potential western yellow-billed cuckoo habitat at voluntary conservation activities, but conservation value of an area, and may Pinal Creek and to partner with us by who have concerns about incurring help focus conservation efforts on areas exploring the initial stages of a habitat incidental regulatory or economic of high value for certain species. Any conservation plan. impacts. information about the western yellow- The success of FMC’s management is billed cuckoo that reaches a wide demonstrated in the development of Benefits of Exclusion Outweigh the audience, including parties engaged in riparian areas that provide habitat for Benefits of Inclusion—Pinal Creek conservation activities, is valuable. The nesting southwestern willow flycatchers We have determined that the benefits designation of critical habitat may also and western yellow-billed cuckoos. of exclusion of Pinal Creek on private affect the implementation of Federal FMC’s remedial actions from operation lands managed by FMC, with the laws, such as the Clean Water Act. of the Lower Pinal Creek Treatment implementation of their management These laws analyze the potential for Plant involve output of water into Pinal plan, outweigh the benefits of inclusion projects to significantly affect the Creek, which helps the habitat remain because current management efforts environment. Critical habitat may signal potentially wetter than it would be maintain the physical or biological the presence of important sensitive without treated water from the plant. features necessary to develop, maintain, habitat that could otherwise be missed Additional evidence of the partnership recycle, and protect essential habitat in the review process for these other between FMC and the Service is shown essential for western yellow-billed environmental laws. by FMC’s commitment to provide for cuckoo conservation. These actions At FMC properties in both Arizona adaptive management, such that if serve to manage and protect habitat and New Mexico, FMC has helped fund future western yellow-billed cuckoo needed for western yellow-billed western yellow-billed cuckoo studies surveys and habitat monitoring detect cuckoo above those conservation and cooperated with conducting status significant positive or negative changes measures which may be required if the surveys. Although the implementation in the numbers of nesting western area was designated as critical habitat. of the Clean Water Act was a catalyst in yellow-billed cuckoos or in key habitat In making this finding, we have focusing conservation efforts along Pinal parameters, they will confer with the weighed the benefits of exclusion Creek, FMC’s existing conservation Service regarding the impacts of such against the benefits of including these awareness and continued changes and will adopt alternative lands as critical habitat. implementation of conservation actions conservation measures to promote Past, present, and future coordination have greatly improved the physical and cuckoo habitat. Exclusion of this area with FMC has provided and will biological features for both western from the designation will maintain and continue to provide sufficient education yellow-billed cuckoo and southwestern strengthen the partnership between the regarding western yellow-billed cuckoo willow flycatcher. Service and FMC. habitat conservation needs on these FMC’s long-term commitment to Our collaborative relationship with lands, such that there would be minimal environmental clean-up and land FMC makes a difference in our additional educational benefit from management actions that helped create partnership with the numerous designation of critical habitat. The habitat to support southwestern willow stakeholders involved with western incremental conservation and benefit of flycatcher and western yellow-billed yellow-billed cuckoo management and designated critical habitat on FMC- cuckoo territories will continue based recovery and influences our ability to owned lands would largely be on Southwestern willow flycatcher 2012 form partnerships with others. Concerns redundant with the combined benefits and 2015 Management Plans and over perceived added regulation of the existing management. Therefore, discussions with FMC to incorporate potentially imposed by critical habitat the incremental conservation and western yellow-billed cuckoos into the could harm this collaborative regulatory benefits of designating efforts. Therefore, the incremental relationship. critical habitat on FMC lands along benefits of a western yellow-billed Because so many important areas with Pinal Creek are minimal. cuckoo critical habitat designation along western yellow-billed cuckoo habitat The benefits of designating critical Pinal Creek would be minimal. occur on private lands, collaborative habitat for the western yellow-billed relationships with private landowners cuckoo along Pinal Creek are relatively Benefits of Exclusion—Freeport will be essential in order to recover the low in comparison to the benefits of McMoRan Management Plan western yellow-billed cuckoo. The exclusion. The operation of the Lower A considerable benefit from excluding western yellow-billed cuckoo and its Pinal Creek Treatment Plant remedial FMC-owned Pinal Creek lands as habitat are expected to benefit activities, long-term land management western yellow-billed cuckoo critical substantially from voluntary landowner commitments, and continuation of a habitat is the maintenance and management actions that implement conservation partnership will continue strengthening of ongoing conservation appropriate and effective conservation to help foster the maintenance and partnerships. FMC has demonstrated a strategies. Where consistent with the development of western yellow-billed partnership with the Service by discretion provided by the Act, it is cuckoo habitat. We anticipate that becoming a conservation partner in the beneficial to implement policies that greater western yellow-billed cuckoo development and implementation of the provide positive incentives to private conservation can be achieved through

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these management actions and known presence of western yellow- Benefits of Inclusion—Freeport relationships than through consultation billed cuckoos or their habitat would McMoRan Eagle Creek Management regarding impacts to designated critical require evaluation under the jeopardy Plan habitat on a project-by-project basis on standard of section 7 of the Act, even As discussed above under Effects of private land where such consultations absent the designation of critical habitat, Critical Habitat Designation Section 7 are expected to be rare. and thus will protect the species against Consultation, Federal agencies, in On the other hand, the benefits of extinction. While future section 7 consultation with the Service, must excluding FMC-owned lands along consultations along this Pinal Creek are ensure that their actions are not likely Pinal Creek from critical habitat are likely to be rare, the jeopardy standard to jeopardize the continued existence of considerable. FMC’s management plan of section 7 of the Act and routine any listed species or result in the establishes a framework for cooperation implementation of conservation destruction or adverse modification of and coordination with the Service in measures through the section 7 process any designated critical habitat of such connection with resource management due to the occurrence of western species. The difference in the outcomes activities based on adaptive yellow-billed cuckoos on this property of the jeopardy analysis and the adverse management principles. Most provide assurances that the western modification analysis represents the importantly, the management plan yellow-billed cuckoo will not go extinct regulatory benefit and costs of critical indicates a continuing commitment to as a result of excluding these lands from ongoing management that has resulted habitat. the critical habitat designation. As a A critical habitat designation requires in nesting cuckoo habitat. Exclusion of result, we are excluding 380 ac (154 ha) Federal agencies to consult on whether these lands from critical habitat will of land from the final designation along their activity would destroy or adversely help preserve and strengthen the Pinal Creek. modify critical habitat to the point conservation partnership we have where recovery could not be achieved. developed with FMC, reinforce those we Unit 28 (AZ–26)—Freeport McMoRan We have a few records of section 7 are building with other entities, and Eagle Creek Management Plan foster future partnerships and consultations addressing western development of management plans We have identified approximately yellow-billed cuckoos and their habitat whereas inclusion will negatively 1,257 ac (509 ha) of critical habitat in along Eagle Creek. However, because impact our relationships with FMC and Eagle Creek owned by Freeport- much of this stream segment is privately other existing or future partners. We are McMoRan Incorporated (FMC), a private owned, we do not anticipate future committed to working with FMC to mining company, for exclusion. FMC Federal actions to impact western further western yellow-billed cuckoo has ownership and management yellow-billed cuckoos. The designation conservation and other endangered and responsibility for a portion of Eagle of critical habitat would provide a threatened species. FMC has agreed to Creek in Greenlee County, Arizona. benefit by identifying the geographic continue to implement their FMC, the Service, BLM, and USFS have area important for western yellow-billed management plans and play an active coordinated on a 2020 Draft Eagle Creek cuckoos. However, because the species role to protect western yellow-billed Management Plan for managing western has been considered for listing since cuckoos and their habitat. Therefore, in yellow-billed cuckoos to reduce 2001 and listed since 2014, areas where consideration of the relevant impact to livestock damage to Eagle Creek by the species occurs are well known and our partnership with FMC, and the providing grazing lands in the upland land managers understand the value of ongoing conservation management areas. The desired result is the maintaining habitat for the species. Another important benefit of practices of FMC, we determined that improvement of the abundance, including lands in a critical habitat the significant benefits of exclusion distribution, and quality of riparian designation is that it can serve to outweigh the benefits of inclusion in the breeding habitat for western yellow- educate landowners, agencies, tribes, critical habitat designation. billed cuckoos in perpetuity (FMC 2020, and the public regarding the potential After weighing the benefits of pp. 74–85). Eagle Creek and tributaries conservation value of an area, and may including as western yellow-billed within Bee Canyon in Greenlee County help focus conservation efforts on areas cuckoo critical habitat against the flow through private lands belonging to of high value for certain species. Any benefit of exclusion, we have concluded FFMC. Eagle Creek meanders in and out information about the western yellow- that the benefits of excluding the of Graham County along the eastern approximate 5.8 km (3.6 mi) of Pinal billed cuckoo that reaches a wide boundary of the San Carlos Apache audience, including parties engaged in Creek with long-term FMC management Reservation. commitments outweigh those that conservation, livestock grazing, mining, would result from designating this area Groundwater withdrawal in Eagle and sportfishing activities, is valuable. as critical habitat. Creek, primarily for water supply for a The designation of critical habitat may large open-pit copper mine at Morenci, also affect the implementation of Exclusion Will Not Result in Extinction Arizona, dries portions of the stream Federal laws, such as the Clean Water of the Species—Freeport McMoRan (Sublette et al. 1990, p. 19; Propst et al. Act. These laws analyze the potential Management Plan 1986, p. 7). Mining is the largest for projects to significantly affect the We find that the exclusion of these industrial water user in southeastern environment. Critical habitat may signal lands will not lead to the extinction of Arizona. The Morenci mine on Eagle the presence of sensitive habitat that the western yellow-billed cuckoo, nor Creek is North America’s largest could otherwise be missed in the review hinder its recovery because long-term producer of copper, covering process for these other environmental FMC water and land management approximately 60,000 ac (24,281 ha). laws; however, the listing of this species commitments will ensure the long-term Water for the mine is imported from the and consultations that have already persistence and protection of cuckoo Black River, diverted from Eagle Creek occurred will provide this benefit. habitat at Pinal Creek. As discussed as surface flows, or withdrawn from the Therefore, in this case we view the above under Effects of Critical Habitat Upper Eagle Creek Well Field (Arizona regulatory benefit to be largely as Designation Section 7 Consultation, if a Department of Water Resources 2009, redundant with the benefit the species Federal action or permitting occurs, the p. 62). receives from listing under the Act and

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may only result in minimal additional stretch of Eagle Creek. Additional managing Pinal Creek and U-Bar benefits. evidence of the partnership between western yellow-billed cuckoo and Eagle Creek and Bee Canyon are in FMC and the Service is shown by FMC’s southwestern willow flycatcher isolated areas; however, there are commitment in the 2015 Pinal Creek breeding sites successfully and is ranchers in the area, and the area is Management Plan and the 2020 Draft committing to funding, fencing out used for sportfishing by the general Eagle Creek Management Plan (FMC livestock from Eagle Creek and Bee public (77 FR 10868; February 23, 2020, pp. 74–85) to provide for adaptive Canyon, developing livestock waters in 2012). Designation of critical habitat management, such that if future western the uplands that do not compromise could inform those who either live yellow-billed cuckoo surveys and upland springs, monitoring vegetation locally or use the area for recreation habitat monitoring detect significant and western yellow-billed cuckoos, about listed species and their habitat negative changes in the numbers of preparing annual reports, and needs. FMC has indicated that this area western yellow-billed cuckoos or in key conducting adaptive management to is heavily used by employees of the habitat parameters, they will confer ensure the fencing and watering project Morenci Mine, and public outreach as a with the Service regarding the impacts conserves habitat in Eagle Creek and result of a designation would be used to of such changes and will adopt Bee Canyon. These actions serve to educate users. alternative conservation measures to manage and protect habitat needed for Overall, the benefits of designating promote western yellow-billed cuckoo western yellow-billed cuckoo above western yellow-billed cuckoo critical habitat. those conservation measures which may habitat along Eagle Creek and Bee Our collaborative relationship with be required if the area was designated as Canyon are minimal. FMC, BLM, USFS, FMC makes a difference in our critical habitat. In making this finding, and grazing permittees are aware of the partnership with the numerous we have weighed the benefits of occurrence of western yellow-billed stakeholders involved with exclusion against the benefits of cuckoos along Eagle Creek and these southwestern willow flycatcher and including these lands as critical habitat. partners will continue to be engaged western yellow-billed cuckoo Past, present, and future coordination with the Draft Eagle Creek Western management and recovery and with FMC has provided and will Yellow-billed Cuckoo Management Plan influences our ability to form continue to provide sufficient education at this time and in implementation partnerships with others. regarding western yellow-billed cuckoo when finalized at time of final Because so many important areas with habitat conservation needs on these designation. Thus, the educational and western yellow-billed cuckoo habitat lands, such that there would be minimal regulatory benefits of a critical habitat occur on private lands, collaborative additional educational benefit from designation are minimized. relationships with private landowners designation of critical habitat beyond are important in recovering the species. Benefits of Exclusion—Freeport those achieved from listing the species The western yellow-billed cuckoo and McMoRan Eagle Creek Management under the Act, and FMC’s continued its habitat are expected to benefit Plan work in conserving these species. substantially from voluntary landowner The incremental conservation and A considerable benefit from excluding management actions that implement regulatory benefit of designating critical this part of Eagle Creek and Bee Canyon appropriate and effective conservation habitat on part of Eagle Creek and Bee as western yellow-billed cuckoo critical strategies. Where consistent with the Canyon would largely be redundant habitat is the maintenance and discretion provided by the Act, it is with the combined benefits of the strengthening of ongoing conservation beneficial to implement policies that existing management. Therefore, the partnerships. In 2005, FMC prepared provide positive incentives to private incremental conservation and regulatory and submitted a plan to the Service for landowners to voluntarily conserve benefits of designating critical habitat the management of the U-Bar Ranch, natural resources and that remove or along Eagle Creek and Bee Canyon are which supported exclusion of the FMC’s reduce disincentives to conservation minimal. land from the 2006 southwestern willow (Wilcove et al. 1996, entire; Bean 2002, The benefits of designating critical flycatcher critical habitat designation. pp. 1–7). Thus, it is important for the habitat for the western yellow-billed The following year, FMC prepared and western yellow-billed cuckoo recovery cuckoo along Eagle Creek and Bee submitted management plans for the to build on continued conservation Canyon are relatively low in comparison spikedace and loach minnow in Eagle activities such as these with a proven to the benefits of exclusion. The Creek and in the upper Gila River, in the partner, and to provide positive mentioned long-term land management Gila/Cliff Valley. In 2012, FMC incentives for other private landowners commitments, along with the Draft submitted a management plan for who might be considering implementing Eagle Creek Management Plan, and southwestern willow flycatchers and in voluntary conservation activities, but continuation of a conservation 2015 for western yellow-billed cuckoos who have concerns about incurring partnership will help foster the on their reach of Pinal Creek, where incidental regulatory or economic maintenance and development of both species are breeding in riparian impacts. western yellow-billed cuckoo habitat. habitat (FMC 2012, entire; FMC 2015, The fencing and water development for entire). In part from their knowledge Benefits of Exclusion Outweigh the upland livestock will be designed to and success with Pinal Creek, FMC has Benefits of Inclusion—Freeport keep livestock from using Eagle Creek committed to management to improve McMoRan Eagle Creek Management and Bee Canyon, thereby reducing the Eagle Creek and Bee Canyon riparian Plan effects from grazing and trampling habitat, by fencing out livestock and We have determined that the benefits riparian vegetation, while allowing for providing the infrastructure for upland of exclusion of Eagle Creek and Bee regeneration to improve habitat. FMC’s water delivery for displaced livestock Canyon, with the implementation of the management plan outlines actions and (FMC 2020, pp. 74–85), These actions FMC management plan (FMC 2020, pp. commits to tasks that will enhance not arose during coordination efforts with 74–85), outweigh the benefits of only the western yellow-billed cuckoo, BLM, FMC, and the Service while inclusion, and will not result in but other riparian species and the exploring conservation options for extinction of the western yellow-billed overall health of the creek ecosystem in western yellow-billed cuckoo in this cuckoo because the FMC is currently areas where cattle are fenced out.

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Exclusion of these lands from critical absent the designation of critical habitat, western yellow-billed cuckoo occurs habitat will help preserve and and thus will protect the species against throughout portions of the Sprague strengthen the conservation partnership extinction. Collectively, these elements Ranch. The Sprague Ranch contains we have developed with FMC, assist provide assurances that the western existing riparian forest that can support BLM, USFS, and the grazing lessee in yellow-billed cuckoo will not go extinct and maintain nesting territories and managing livestock to prevent it from as a result of excluding these riparian migrating and dispersing western entering the Gila Box area, as well as habitats from the critical habitat yellow-billed cuckoos. foster future partnerships and designation. After weighing the benefits The Sprague Ranch is managed development of management plans. of including western yellow-billed pursuant to a conservation plan dated Although a critical habitat designation cuckoo critical habitat against the January 25, 2005. This plan was would require Federal actions to consult benefit of exclusion, we have concluded prepared in partnership with the on adverse modification, because of the that the benefits of excluding the Eagle Service, CDFW, and Audubon to infrequency of section 7 consultations Creek and Bee Canyon with long-term provide consistent management of lands within Eagle Creek, the reduced FMC management commitments acquired in Unit 64 in compliance with likelihood of future Federal actions, and outweigh those that would result from the biological opinions issued by the the landowners commitment to designating this area as critical habitat. Service. The Audubon Society is the continue implementing land We have therefore excluded lead entity for management of the Kern management actions that maintain approximately 1,257 ac (509 ha) of land River Preserve, an area adjacent to the western yellow-billed cuckoo habitat, from this final critical habitat Sprague Ranch. Management actions the benefits of a critical habitat designation pursuant to section 4(b)(2) required for the Sprague Ranch include: designation on Eagle Creek are of the Act. Demographic surveys, cowbird trapping, minimized. We anticipate that greater nonnative vegetation removal, livestock western yellow-billed cuckoo Unit 64 (CA–2) South Fork Kern River exclusion, hydrologic improvement, conservation can be achieved through Valley—Sprague Ranch planting of native vegetation, noxious these management actions and We identified approximately 40 ac (16 weed control activities, flood irrigating relationships than through ha) of private land for exclusion from low-lying areas, upgrading of fencing, implementation of critical habitat critical habitat based on management upgrading irrigation systems, designation on a project-by-project basis and conservation easements for the monitoring, and reporting. These on private land where the occurrence of Sprague Ranch. The Sprague Ranch, measures will assist in improvement, implementation of critical habitat included in Unit 64 (CA–2, South Fork management, and conservation of designation due to Federal funding or Kern River Valley), warrants exclusion western yellow-billed cuckoo habitat in permitting is expected to be rare. from the final designation of critical perpetuity and meet our criteria for We are committed to working with habitat under section 4(b)(2) of the Act exclusion. FMC to further western yellow-billed because we have determined that the cuckoo conservation and other benefits of excluding Sprague Ranch Benefits of Inclusion—Sprague Ranch endangered and threatened species. As from western yellow-billed cuckoo As discussed above under Effects of evident from ongoing conversations and critical habitat designation will Critical Habitat Designation Section 7 adaptive management actions, FMC will outweigh the benefits of including it in Consultation, Federal agencies, in continue to implement its management the final designation based on the long- consultation with the Service, must plans and play an active role to protect term protections afforded for ensure that their actions are not likely western yellow-billed cuckoos and their southwestern willow flycatcher habitat. to jeopardize the continued existence of habitat. Therefore, in consideration of The following represents our rationale any listed species or result in the the relevant impact to our partnership for excluding the Sprague Ranch from destruction or adverse modification of with FMC and the ongoing conservation the final designated critical habitat for any designated critical habitat of such management practices of FMC, we the western yellow-billed cuckoo. species. The difference in the outcomes determined that the significant benefits The Sprague Ranch is an of the jeopardy analysis and the adverse of exclusion outweigh the benefits of approximately 4,380-ac (1,772-ha) modification analysis represents the inclusion in the critical habitat parcel of private land which is managed regulatory benefit and costs of critical designation. and conservation easements purchased habitat. A critical habitat designation in a public-private partnership by the requires Federal agencies to consult on Exclusion Will Not Result in Extinction Audubon Society, CDFW, and the Corps whether their activity would destroy or of the Species—Freeport McMoRan in 2005. The funding used to purchase adversely modify critical habitat to the Eagle Creek Management Plan the easement and manage the Sprague point where recovery could not be We find that the exclusion of these Ranch was provided by the Corps as a achieved. The South Fork Kern River lands will not lead to the extinction of result of biological opinions issued by Valley is occupied by western yellow- the western yellow-billed cuckoo, nor the Service for the long-term operation billed cuckoos during the breeding hinder its recovery because long-term of Lake Isabella Dam and Reservoir season and the area and its habitat are FMC water and land management (Service 1996, 2005b) specifically to well known to be important to the commitments will ensure the long-term provide habitat for and conservation of western yellow-billed cuckoo and persistence and protection of western the southwestern willow flycatcher. therefore, if a Federal action or yellow-billed cuckoo habitat at Eagle The Sprague Ranch is located permitting occurs, there is a catalyst for Creek and Bee Canyon. As discussed immediately north and adjacent to the evaluation under section 7 of the Act above under Effects of Critical Habitat Kern River Preserve (KRP), which is (mostly due to listing the species as Designation Section 7 Consultation, if a owned and operated by Audubon, and threatened). Through section 7 Federal action or permitting occurs, the shares a common border with the KRP consultation, some minimal benefit known presence of western yellow- of over 3 mi (5 km). Together these co- could occur from a critical habitat billed cuckoos or their habitat would managed lands provide opportunities designation at the Sprague Ranch. The require evaluation under the jeopardy for western yellow-billed cuckoo Sprague Ranch may have additional standard of section 7 of the Act, even breeding, feeding, and sheltering. The conservation value above sustaining

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existing populations because it is being billed cuckoo habitat; therefore the of the western yellow-billed cuckoo in managed to not only maintain existing educational benefits educational the Unit. Therefore, western yellow- habitat, but also to improve, protect, and benefits arising from critical habitat billed cuckoo habitat located within possibly expand upon the amount of designation are likely to be minimal. properties covered by management nesting habitat that would provide for plans or conservation strategies that Benefits of Exclusion—Sprague Ranch growth of existing populations. protect or enhance its habitat will Expansion of existing populations in A considerable benefit from excluding benefit substantially from voluntary these areas would contribute to recovery Sprague Ranch from western yellow- landowner management actions. of the western yellow-billed cuckoo. billed cuckoo critical habitat is the We contend that where consistent The implementation of future maintenance and strengthening of with the discretion provided by the Act, management actions to improve western ongoing conservation partnerships. it is beneficial to implement policies yellow-billed cuckoo habitat on Sprague Based on past and current efforts to that provide positive incentives to Ranch is unlikely to require section 7 conserve habitat within the South Fork private landowners to voluntarily consultation between the Corps (the of the Kern River including the Sprague conserve natural resources and that likely Federal action agency) and the Ranch, we have determined that the remove or reduce disincentives to Service, because all habitat conservation benefits that would be conservation (Wilcove et al. 1996, improvement and management actions realized by foregoing designation of entire; Bean 2002, pp. 1–7). Thus, it is are not likely to result in adverse effects critical habitat for the western yellow- essential for the recovery of the western to the western yellow-billed cuckoo or billed cuckoo would be significant by yellow-billed cuckoo to build on its habitat. As a result, any rare Federal encouraging future conservation continued conservation activities such action that may result in formal cooperation from non-Federal as these with proven partners, and to consultation will likely result in only landowners in the area. Actions provide positive incentives for other discretionary conservation specifically identified on the Sprague private landowners who might be recommendations (i.e., adverse Ranch as part of the Audubon Kern considering implementing voluntary modification threshold is not likely to River Preserve for conservation includes conservation activities but have be reached). Therefore, there is an protection and maintenance of riparian concerns about incurring incidental extremely low probability of mandatory and upland habitat for breeding feeding regulatory or economic impacts. elements (i.e., reasonable and prudent and sheltering, active nonnative species management, livestock exclusion, exotic Benefits of Exclusion Outweigh the alternatives) arising from formal section Benefits of Inclusion—Sprague Ranch 7 consultations that include vegetation control, native tree planting, consideration of designated western and species monitoring and reporting. Based on the above considerations, yellow-billed cuckoo critical habitat, These actions will be implemented we have determined that the benefits of and as a result, the benefits of inclusion through the long-term management plan excluding the Sprague Ranch from are minimized. developed by the Corps, CDFW and the critical habitat in the Unit 64 outweigh Another important benefit of Audubon Society, who are all the benefits of including it as critical including lands in a critical habitat committed to working toward species habitat for the western yellow-billed designation is that the designation can recovery. The Audubon Society is cuckoo. serve to educate landowners, agencies, taking the lead in management of the The Sprague Ranch was purchased tribes, and the public regarding the Kern River Preserve, and its specifically to manage habitats for the potential conservation value of an area, management of this area could be western yellow-billed cuckoo and is and may help focus conservation efforts constrained and complicated by a jointly managed by the Corps, CDFW, on areas of high conservation value for checker boarded critical habitat and Audubon in accordance with the certain species. Any information about designation that would apply to certain terms and conditions of the biological the western yellow-billed cuckoo that lands under Audubon management but opinions. The strategy of the managing reaches a wide audience, including not all. Accordingly, exclusion would partnership is to implement parties engaged in conservation benefit our collaboration with Audubon management and habitat improvement activities, is valuable. The designation in support of species recovery. measures to achieve western yellow- of critical habitat may also affect the The western yellow-billed cuckoo billed cuckoo conservation goals. There implementation of Federal laws, such as occurs on both public and private lands are few additional educational or the Clean Water Act. These laws analyze throughout the Unit, but the Sprague regulatory benefits of including these the potential for projects to significantly Ranch is somewhat unique in that it is lands as critical habitat. The South Fork affect the environment. Critical habitat a partnership between the Corps, Kern River as part of the Audubon may signal the presence of sensitive CDFW, Audubon, and the Service. The Society’s Kern River Preserve is well habitat that could otherwise be missed management of Sprague Ranch is known by the public and managing in the review process for these other conducted in accordance with the terms agencies for its value and importance to environmental laws. and conditions of a biological opinion, the western yellow-billed cuckoo. There would be little additional which requires actions for the Likewise, there will be little additional educational and informational benefit conservation of western yellow-billed Federal regulatory benefit to the species gained from including this portion of cuckoo habitats. These actions would because (a) there is a low likelihood that the Sprague Ranch within the still occur regardless of whether critical the Sprague Ranch will be negatively designation because the Sprague Ranch habitat is designated, but the managing affected to any significant degree by was purchased specifically for habitat entity (Audubon) may be discouraged Federal activities that were not conservation and is well known as an from implementing voluntary beneficial consulted on in the existing biological important area for western yellow-billed actions because of the additional opinions pursuant to section 7 cuckoo management and recovery. Also, requirements of the designation. consultation requirements, and (b) the managing agencies such as the Corps, Proactive conservation efforts and Sprague Ranch is being managed in CDFW, and Audubon Society are partnerships with private or non- accordance with the terms and implementing a long-term management Federal entities are necessary to prevent conditions of the biological opinions. plan that addresses western yellow- the extinction and promote the recovery Based on ongoing management

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activities, there would likely be no Section 7 Consultation, if a Federal the South Fork Kern River and the additional requirements pursuant to a action or permitting occurs, the known Hafenfeld Ranch. consultation that addresses critical presence of western yellow-billed The first conservation easement of habitat. Because this piece of land was cuckoos or their habitat would require approximately 38 ha (93 ac) was purchased and is being managed evaluation under the jeopardy standard recorded in 1996, between the specifically for western yellow-billed of section 7 of the Act, even absent the landowner and the NRCS under cuckoo habitat, a designation of critical designation of critical habitat, and thus authority of the Wetland Reserve habitat would not provide a significant will further protect the species against Program. The purpose of the easement amount of additional benefit. extinction. Additionally, the western is to ‘‘. . . restore, protect, manage, The conservation measures for the yellow-billed cuckoo occurs on lands maintain, and enhance the functional western yellow-billed cuckoo that are adjacent to the Sprague Ranch that are values of wetlands and other lands, and occurring or will be used in the future also protected and managed either for the conservation of natural values on the Sprague Ranch (i.e., demographic explicitly for the species, or indirectly including fish and wildlife habitat, surveys, cowbird trapping, nonnative through more general objectives to water quality improvement, flood water vegetation removal, livestock exclusion, protect natural habitat values. retention, groundwater recharge, open hydrologic improvement, planting of Accordingly, we have determined that space, aesthetic values, and native vegetation, monitoring, and 40 ac (16 ha) of the Sprague Ranch are environmental education. It is the intent reporting) provide as many, and likely excluded under subsection 4(b)(2) of the of NRCS to give the Landowner the more, overall benefits than would be Act because the benefits of excluding opportunity to participate in restoration achieved through implementing section these lands from critical habitat for the and management activities in the 7 consultations on a project-by-project western yellow-billed cuckoo outweigh easement area.’’ basis under a critical habitat the benefits of their inclusion, and the The second conservation easement of designation. exclusion of these lands from the approximately 57 ha (140 ac) was Therefore, we find that the exclusion designation will not result in the recorded in 2007, between the of critical habitat on the Sprague Ranch extinction of the species. landowner and CRT as a result of would most likely have a net positive biological opinions for the long-term conservation effect on the recovery and Unit 64 (CA–2) South Fork Kern River operation of Lake Isabella Dam and conservation of the western yellow- Valley—Hafenfeld Ranch Reservoir (Service 1996, 2005b) billed cuckoo when compared to the specifically to provide habitat and Hafenfeld Ranch is approximately 247 positive conservation effects of a critical conservation for the western yellow- ac (100 ha) in size and lies on and habitat designation. As described above, billed cuckoo. The purposes of the adjacent to the South Fork Kern River. the overall benefits to the western easement includes: (1) Protection of the Within the larger ranch are two yellow-billed cuckoo of a critical habitat riparian area; (2) continuation of flows perpetual conservation easements that designation for this property are into the riparian area; and (3) protection were placed for the purposes of riparian relatively few. In contrast, this of riparian habitat. An endowment to and wetland vegetation protection and exclusion will enhance our existing implement these purposes was granted western yellow-billed cuckoo partnership with the Corps, CDFW, and by the Corps to the National Fish and Audubon, and it will set a positive conservation. The landowner granted Wildlife Foundation to be used by CRT. example and could provide positive these easements willingly and in The Hafenfeld conservation incentives to other non-Federal partnership with Department of easements are managed pursuant to a landowners who may be considering Agriculture-Natural Resource conservation plan dated January 25, implementing voluntary conservation Conservation Service (NRCS), the 2005. This plan was prepared in activities on their lands. We conclude Service, Corps, and California partnership with the Service, National there is a higher likelihood of beneficial Rangeland Trust (CRT). Approximately Fish and Wildlife Foundation (NFWF), conservation activities occurring in this 127 ac (51 ha) of the Hafenfeld Ranch CDFW, Wildlife Conservation Board area for the western yellow-billed was proposed for designation of western (WCB), the Packard Foundation, and cuckoo without designated critical yellow-billed cuckoo critical habitat Audubon to provide consistent habitat than there would be with within Unit 64 (CA–2, South Fork Kern management of lands acquired in Unit designated critical habitat on the River Valley). 64. Management activities under the Sprague Ranch. The Hafenfeld Ranch is part of a plan that will protect, maintain, and continuous corridor of western yellow- improve western yellow-billed cuckoo Exclusion Will Not Result in Extinction billed cuckoo habitat along the South habitat include: (1) Limiting public of the Species—Sprague Ranch Fork Kern River that connects the east access to the site, (2) managing grazing, We find that the exclusion of these and west segments of the Kern River (3) protection of the site from lands will not lead to the extinction of Preserve. The dominant vegetation in development or encroachment, (4) the western yellow-billed cuckoo, nor the Kern Management Unit is willow maintenance of the site as permanent hinder its recovery because long-term and cottonwood (Populus fremontii). open space that has been left land management commitments will Other plant communities of the Kern predominantly in its natural vegetative ensure the long-term persistence and Management Unit include open water, state, and (5) the spreading of flood protection of western yellow-billed wet meadow, and riparian uplands. waters which promotes the moisture cuckoo habitat on the Sprague Ranch. Portions of the Hafenfeld Ranch are regime and wetland and riparian Exclusion of these lands will not result seasonally flooded, forming a mosaic of vegetation determined to be essential for in the extinction of the species because wetland communities throughout the western yellow-billed cuckoo there is a long-term commitment by area. The remainder of the property conservation. Other prohibitions of the proven land management partners to consists of wet meadow and riparian easements which would benefit western manage this property specifically for the upland habitats, consistent with the yellow-billed cuckoo conservation western yellow-billed cuckoo. In character of habitat along the South include: (1) Haying, mowing or seed addition, as discussed above under Fork Kern River. Western yellow-billed harvesting; (2) altering the grassland, Effects of Critical Habitat Designation cuckoos have been recorded throughout woodland, wildlife habitat, or other

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natural features; (3) dumping refuse, protect riparian vegetation and the western yellow-billed cuckoo at the wastes, sewage, or other debris; (4) western yellow-billed cuckoo. As a Hafenfeld Ranch include: (1) harvesting wood products; (5) draining, result, it is not likely that Federal Continuance and strengthening of our dredging, channeling, filling, leveling, actions or the easement holder would effective working relationship with the pumping, diking, or impounding water allow actions that would diminish or Hafenfeld Ranch and the Corps, CRT, features or altering the existing surface reduce the capability of the habitat to and CDFW to promote voluntary, water drainage or flows naturally support existing populations. As a proactive conservation of the western occurring within the easement area; and result, any rare Federal action that may yellow-billed cuckoo and its habitat as (6) building or placing structures on the result in formal consultation will likely opposed to reactive regulation; (2) easement. Funding for the result in only discretionary conservation allowance for continued meaningful implementation of the conservation recommendations and an adverse collaboration and cooperation in plan is assured by an endowment held modification threshold is not likely to working toward species recovery, by NFWF and through commitments by be reached. Therefore, there is an including conservation benefits that NRCS, CRT, and the Hafenfeld Ranch extremely low probability of mandatory might not otherwise occur; and (3) under provisions of the Conservation elements (i.e., reasonable and prudent encouragement of additional Easement. alternatives) arising from formal section conservation easements and other 7 consultations that include conservation and management plan Benefits of Inclusion—Hafenfeld Ranch consideration of designated western development in the future on the As discussed above under Effects of yellow-billed cuckoo critical habitat, Hafenfeld Ranch and other lands for the Critical Habitat Designation Section 7 and as a result, the benefits of inclusion western yellow-billed cuckoo and other Consultation, Federal agencies, in are minimized. federally listed and sensitive species. consultation with the Service, must Another important benefit of The western yellow-billed cuckoo ensure that their actions are not likely including lands in a critical habitat occurs on public and private lands to jeopardize the continued existence of designation is that the designation can throughout Unit 64. Proactive voluntary any listed species or result in the serve to educate landowners, agencies, conservation efforts by private or non- destruction or adverse modification of tribes, and the public regarding the Federal entities are necessary to prevent any designated critical habitat of such potential conservation value of an area, declines and promote the recovery of species. The difference in the outcomes and may help focus conservation efforts the western yellow-billed cuckoo in of the jeopardy analysis and the adverse on areas of high conservation value for Unit 64. modification analysis represents the certain species. Any information about Therefore, western yellow-billed regulatory benefit and costs of critical the western yellow-billed cuckoo that cuckoo habitat located within private habitat. A critical habitat designation reaches a wide audience, including properties, like the Hafenfeld Ranch, requires Federal agencies to consult on parties engaged in conservation covered by management plans or whether their activity would destroy or activities, is valuable. The designation conservation strategies that protect or adversely modify critical habitat to the of critical habitat may also affect the enhance its habitat will benefit point where recovery could not be implementation of Federal laws, such as substantially from voluntary landowner achieved. The South Fork Kern River is the Clean Water Act. These laws analyze management actions. Where consistent occupied by western yellow-billed the potential for projects to significantly with the discretion provided by the Act, cuckoos; therefore, if a Federal action or affect the environment. Critical habitat it is beneficial to implement policies permitting occurs, there is a nexus for may signal the presence of sensitive that provide positive incentives to evaluation under section 7 of the Act habitat that could otherwise be missed private landowners to voluntarily due to the species being listed as in the review process. conserve natural resources and that threatened. Through section 7 There would be little educational and remove or reduce disincentives to consultation, some minimal benefit informational benefit gained from conservation (Wilcove et al. 1996, could occur from a western yellow- including this portion of the South Fork entire; Bean 2002, pp. 1–7). Thus, it is billed cuckoo critical habitat Kern River within the designation essential for the recovery of the western designation at the Hafenfeld Ranch. The because the Hafenfeld Ranch- yellow-billed cuckoo to build on Hafenfeld Ranch may have additional established conservation easements that continued conservation activities such conservation value above sustaining addressed the western yellow-billed as these with proven partners, like the existing western yellow-billed cuckoo cuckoo and its habitat, and therefore it Hafenfeld Ranch, and to provide populations because it is being managed is well known as an important area for positive incentives for other private to not only maintain existing habitat, western yellow-billed cuckoo landowners who might be considering but also to improve, protect, and management and recovery. Also, implementing voluntary conservation possibly expand upon the amount of managing agencies such as the Corps, activities but have concerns about nesting habitat that would provide for NRCS, Service, CRT, and CDFW were incurring incidental regulatory or growth of existing populations. involved with establishing these economic impacts. Expansion of existing populations in easements and development of a long- Benefits of Exclusion Outweigh the these areas would be an element of term management plan that addresses Benefits of Inclusion—Hafenfeld Ranch recovering the western yellow-billed western yellow-billed cuckoo habitat; cuckoo. However, because these lands therefore the educational benefits or Based on the above considerations, are privately owned and not under additional support for implementing we have determined that the benefits of Federal management, the occurrence of other environment regulations from a excluding the Hafenfeld Ranch from Federal actions that would generate critical habitat designation are not critical habitat in Unit 64 outweigh the evaluation under section 7 are expected expected to be realized in this area. benefits of including it as critical habitat to be limited. Additionally, the for the western yellow-billed cuckoo. established conservation easements’ Benefits of Exclusion—Hafenfeld Ranch The Hafenfeld Ranch is currently goals to restore, protect, and manage the Conservation benefits which are and operating under a conservation plan to functional values for the conservation of would be realized by foregoing implement conservation measures and fish and wildlife habitat are intended to designation of critical habitat for the achieve important conservation goals

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through the conservation measures required if the area was designated as Leatha Jean Stassen State Wildlife Area described above, as well as land and critical habitat. In making this finding, (24 ac (10 ha)), the Tilman Bishop State water management efforts such as we have weighed the benefits of Wildlife Area (107 ac (43 ha)), and the willow planting and management of exclusion against the benefits of Walter Walker State Wildlife Area (462 surface flows to achieve the optimal including these lands as critical habitat. ac (187 ha)). flooding regime for the enhancement of Therefore, we find that the exclusion There are four parcels of the James M. important riparian and wetland habitat of critical habitat on the Hafenfeld Robb Colorado River State Park (CRSP) for the western yellow-billed cuckoo. Parcel would most likely have a net within critical habitat Unit 68. The Corn The additional regulatory and positive conservation effect on the Lake section, 6 ac (2 ha), the Connected educational benefits of including these recovery and conservation of the Lakes section, 162 ac (66 ha), the Pear lands as critical habitat are relatively western yellow-billed cuckoo when Park section 105 ac (42 ha), and the 34 few. Based on past and current compared to designating the area as Road section that is 0.26 ac (0.1 ha). The conservation actions and continued critical habitat. As described above, the management of the Colorado State Parks stewardship of their lands by the overall benefits to the western yellow- is outlined in Colorado Parks & Wildlife landowner, we anticipate that the billed cuckoo from a critical habitat Strategic Plan (CPW 2005, entire). The conservation strategies will continue to designation on the Hafenfeld Ranch are primary goals of the CRSP are to be implemented in the future, and that relatively low. preserve native communities, reduce the funding for these activities will be noxious weeds, maintain desirable Exclusion Will Not Result in Extinction apportioned in accordance with the shade trees in picnic areas, use a native of the Species—Hafenfeld Ranch existing management plan. revegetation management prescription, Past, present, and future coordination Exclusion of these lands will not augment nesting structures for wildlife, with the landowner has provided and result in the extinction of the subspecies improve aquatic resources, implement a will continue to provide sufficient because the western yellow-billed comprehensive natural resources education regarding western yellow- cuckoo occupies the Hafenfeld Ranch monitoring program, and develop and billed cuckoo habitat conservation and the area is being managed for maintain sustainable trails. Western needs on these lands, such that there western yellow-billed cuckoo yellow-billed cuckoo detections have would be minimal additional conservation. The management on been documented at the Connected educational benefit from designation of Hafenfeld Ranch is a long-term Lakes Section in 2002 and at the Corn critical habitat. Likewise, there will be conservation commitment by the Lake section in 1998 (Beason 2012, p little additional Federal regulatory landowner to benefit habitat for the 14). Colorado State Parks manages all benefit to the species because (a) there western yellow-billed cuckoo. As parcels under a 2002 stewardship plan is a low likelihood that the Hafenfeld discussed above under Effects of Critical that prescribes a stewardship Parcel will be negatively affected to any Habitat Designation Section 7 prescription for cottonwood and willow significant degree by Federal activities Consultation, if a Federal action or management and noxious weeds requiring section 7 consultation, and (b) permitting occurs, the known presence management (Colorado State Parks based on ongoing management of western yellow-billed cuckoos or 2002, entire). activities, there would likely be no their habitat would require evaluation The Leatha Jean Stassen, Tilman additional requirements pursuant to a under the jeopardy standard of section Bishop, and Walter Walker State consultation that addresses critical 7 of the Act, even absent the designation Wildlife Areas (SWAs) are all protected habitat. Excluding these privately of critical habitat, and thus will protect in perpetuity (owned in fee by CPW) owned lands with conservation the species against extinction. and managed under terms stipulated by strategies from critical habitat may, by Accordingly, we have determined that the Federal Aid in Wildlife Restoration way of example, provide positive social, 127 ac (51 ha) of the Hafenfeld Ranch Act of 1937 (Pittman-Robertson) and legal, and economic incentives to other lands are excluded under subsection Federal Aid in Sport Fish Restoration non-Federal landowners who own lands 4(b)(2) of the Act because the benefits of Act of 1950 (Dingell-Johnson), which that could contribute to listed species excluding these lands from critical prohibit the diversion of CPW assets or recovery if voluntary conservation habitat for the western yellow-billed any funds generated from license sales measures on these lands are cuckoo outweigh the benefits of their to non-wildlife programs or practices. implemented. inclusion, and the exclusion of these There are no official management plans The conservation measures for the lands from the designation will not for the SWAs, yet all management western yellow-billed cuckoo on the result in the extinction of the species. actions (through annual work plans) are Hafenfeld Ranch that include the directed to benefit wildlife and native Unit 68 (CO–1) Colorado River—State of activities described above that include habitat. land and water management actions to Colorado Parks and Wildlife The primary management objective enhance important riparian and wetland In the revised proposed rule, we for the Leatha Jean Stassen SWA is to habitat provide as much, and likely indicated that 417 ac (169 ha) of state- provide quality wildlife habitat. Key more comprehensive benefits as would owned lands in Unit 68 (CO–1) along activities in pursuit of this objective be achieved through implementing the Colorado River were being include removal of purple loosestrife section 7 consultation on a project-by- considered for exclusion because State (Lythrum salicaria) and other project basis under a critical habitat of Colorado Parks and Wildlife (CPW) herbaceous weeds as well as increasing designation. This is because the land manages them to benefit wildlife, law enforcement presence and trash managers are already implementing including the western yellow-billed removal to reduce disturbance from actions that improve and maintain cuckoo. Based on CPW comments and public use. CPW’s annual work plans western yellow-billed cuckoo habitat. parcel information provided by CPW, also include treating Russian olive, The actions already being implemented we adjusted the acreage considered for tamarisk, and noxious weeds to by the landowner serve to manage and exclusion to 866 ac (351 ha). The areas minimize regrowth. There are no protect habitat needed for western we consider below for exclusion are the seasonal closures for this parcel. yellow-billed cuckoo above those multi-parcel James M. Robb Colorado The Walter Walker SWA is adjacent to conservation measures which may be River State Park (273 ac (110 ha)), the the Leatha Jean Stassen SWA on the

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west end of Unit 68. The primary point where recovery could not be regulatory benefit to be largely management objectives for the Walker achieved. redundant with the benefit the species SWA are to restore natural riparian The most likely Federal nexus for will receives from listing under the Act vegetation and to enhance values for these lands would be associated with and may only result in minimal rare and sensitive species, non-game Federal funding through Partners for additional benefits. wildlife, and waterfowl. The annual Fish and Wildlife, the Service, or NRCS management activities that support the for habitat restoration projects, or Benefits of Exclusion—State of Colorado objectives include removal of tamarisk permitting from the Corps if work Parks and Wildlife Lands and other nonnative woody riparian involves placing fill in riparian or We have determined that the benefits plants and conduct plantings of wetland areas. Potential outcomes of of exclusion of CPW lands outweighs cottonwood and willow. Understory section 7 consultations (mostly due to vegetation management is limited to the species being listed as threatened) the benefits of inclusion because the those activities that enhance or maintain would be conservation CPW is currently managing and is wildlife values on the property. There is recommendations to avoid disturbance committed to maintaining and no livestock grazing on the property. during breeding and nonbreeding enhancing aquatic and riparian habitats Mechanical removal of tamarisk and periods, avoid degradation or to benefit wildlife and to restore, other nonnative woody riparian plants destruction of cottonwood stands and manage, and enhance habitat. The has occurred on the property and will their understory, and avoid spraying designation of SWA and State Park with be monitored and repeated as necessary. pesticides that could reduce insect prey prescriptions for cottonwood and Control of understory weeds is also a bases for western yellow-billed cuckoo. willow management that promotes a regular occurrence. However, most of these healthy cottonwood overstory with grass The Tilman Bishop SWA is on the recommendations have been identified and shrub understory components, eastern end of critical habitat Unit 68. and implemented in CPW’s sustainable public access, and control of management direction to benefit The primary management objectives for noxious weeds demonstrate CPW’s wildlife and their habitat in the CRSP the Tilman Bishop SWA are to restore commitment to prudent stewardship of and SWAs, in the absence of critical natural riparian vegetation and to their land and water resources for the habitat designation. Therefore, enhance habitat values for rare and benefit of wildlife, including western conservation recommendations sensitive species, non-game wildlife, resulting from any section 7 yellow-billed cuckoo. Due to the legal and waterfowl. Key activities in pursuit consultation with respect to critical mandates (Pittman-Robertson and of these objectives include removal of habitat would most likely be redundant Dingell-Johnson) to manage the SWAs tamarisk and other nonnative woody with the conservation actions already in for the benefit of wildlife and the 2002 riparian plants and conduct plantings of place under current management. Thus, Stewardship Plan for the CRSP, we cottonwood and willow. Otherwise, the few additional regulatory benefits conclude that it is unlikely that any management efforts are focused on would be derived from including the proposed actions would adversely affect developing additional and enhancing CRSP and SWAs in critical habitat Unit or adversely modify critical habitat for existing riparian vegetation on the 68 for western yellow-billed cuckoo. the western yellow-billed cuckoo. property. Actions that implemented Another important benefit of Rather, we can reasonably expect these annually in this SWA that benefit including lands in a critical habitat parcels to be protected from future western yellow-billed cuckoo include designation is that it can serve to development and adaptively managed treating nonnative plants such as educate landowners, agencies, tribes, into the future to avoid and minimize Russian olive and tamarisk, a public and the public regarding the potential access closure period from March 15 threats to the natural habitat included conservation value of an area, and may cottonwood galleries and willow through July 15, and mapping of help focus conservation efforts on areas noxious weeds. understories. Therefore, excluding these of high value for certain species. Any areas from critical habitat could benefit information about the western yellow- Benefits of Inclusion—State of Colorado the existing partnership with CPW. Parks and Wildlife Lands billed cuckoo that reaches a wide audience, including parties engaged in Due to the consistent management of The benefits of including lands in conservation, birding, hunting, livestock the CRSP and SWAs for the benefit of critical habitat can be regulatory and grazing, recreation, and sportfishing wildlife, including cottonwood and educational, which can aid in activities, is valuable. The designation willow management and direction that promoting recovery of the species. As of critical habitat may also affect the would not change greatly through discussed above under Effects of Critical implementation of Federal laws, such as section 7 consultation, it is unlikely that Habitat Designation Section 7 the Clean Water Act. These laws analyze designating these areas as critical Consultation, Federal agencies, in the potential for projects to significantly habitat would appreciably increase consultation with the Service, must affect the environment. Critical habitat recommended conservation measures. ensure that their actions are not likely may signal the presence of sensitive In response to the proposed designation to jeopardize the continued existence of habitat that could otherwise be missed of critical habitat, CPW said that any listed species or result in the in the review process for these other designation of critical habitat should destruction or adverse modification of environmental laws. also consider the existing conservation any designated critical habitat of such Designation of critical habitat could programs available to private species. The difference in the outcomes inform those who either live locally or of the jeopardy analysis and the adverse use the area for recreation about listed landowners and that the designation of modification analysis represents the species and their habitat needs. critical habitat on private lands may regulatory benefit and costs of critical However, we believe there is little, if discourage landowners from pursuing habitat. A critical habitat designation any, educational benefit attributable to voluntary conservation actions. By requires Federal agencies to consult on critical habitat beyond those achieved excluding these areas we can foster whether their activity would destroy or from listing the species under the Act. more cooperation from adjacent private adversely modify critical habitat to the Therefore in this case, we view the landowners.

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Benefits of Exclusion Outweigh the and SWAs, in the absence of critical Unit 33 (NM–2) Gila River—U-Bar Benefits of Inclusion—State of Colorado habitat designation. Therefore, Ranch Parks and Wildlife Lands conservation recommendations We identified approximately 1,142 ac We have determined that the benefits resulting from any section 7 (462 ha) in Unit 33 for exclusion from of excluding the CRSP, Walter Walker consultation with respect to critical the final critical habitat based on habitat SWA, Tilman Bishop SWA, and Leatha habitat would most likely be redundant management by U-Bar Ranch. The U-Bar Jean Stassen SWA as critical habitat for with the conservation actions already in Ranch (Ranch) near Cliff, in Grant western yellow-billed cuckoo, outweigh place under current management and County, New Mexico, in the Upper Gila the benefits of including them as critical few additional regulatory benefits Management Area is owned by Pacific habitat. This conclusion is based on the would be derived from including the Western Land Company (PWLC), a following factors: (1) The CRSP has a CRSP and SWAs in critical habitat for subsidiary of the FMC. Through their complete stewardship plan that the western yellow-billed cuckoo. efforts and their long-time lessee, FMC provides guidance and direction for Lastly, these areas are well known as has demonstrated a commitment to annual activities and land management important areas for the western yellow- management practices on the Ranch that that promote and preserve native have conserved and benefited the billed cuckoo and past, present, and riparian vegetation. Due to designation western yellow-billed cuckoo future coordination with CPW has as a State Park, it is likely that the population in that area over the past conservation management strategies and provided and will continue to provide decade. In addition, FMC had privately actions will continue to be implemented sufficient educational benefits regarding funded scientific research at and in the for the foreseeable future. In addition to conservation of western yellow-billed vicinity of the Ranch in order to develop the goals and objectives set out in the cuckoo habitat on these lands, such that data that have contributed to the stewardship plan for the CRSP, there is there would be minimal additional understanding of habitat selection, also a specific cottonwood and willow educational benefit from designation of distribution, prey base, and threats to stewardship prescription that guides critical habitat beyond those achieved the southwestern willow flycatcher. The management actions to reduce from listing the species under the Act, riparian habitat also has a large number nonnative invasive plants and restore and CPW’s continued work in of nesting western yellow-billed natural hydrology and regeneration conserving the species. cuckoos. processes within the riparian ecosystem. PWLC and the U-Bar Ranch have Exclusion Will Not Result in Extinction Although the SWAs do not have supported collecting annual breeding completed management plans, the of the Species bird population data for over 20 years, annual work plans, cottonwood and We have determined that the where western yellow-billed cuckoo willow prescription, and wildlife exclusion of the CRSP and SWAs lands detections have displayed a significant management mandate under the from Unit 68 will not result in the increase since 1997. The Ranch began Pittman-Robertson and Dingell-Johnson extinction of the western yellow-billed formally surveying for western yellow- Acts indicate sufficient management billed cuckoos on an annual basis cuckoo. CPW’s mandate to manage protections for the physical and beginning in 2014, where results of SWAs for the benefit of wildlife and biological features needed for western these surveys and the past breeding bird yellow-billed cuckoo; and (2) Excluding stewardship plan for the CRSP ensure studies indicate that the western yellow- these areas from critical habitat will continued management actions that billed cuckoo is a common summer help maintain and improve our benefit western yellow-billed cuckoo resident. partnership with CPW. CPW and their habitat. As discussed above The Ranch implements a management commented that the designation of under Effects of Critical Habitat plan (FMC 2012, entire) on its pastures critical habitat in Unit 68 as proposed Designation Section 7 Consultation, if a within the Gila Valley that are north of (85 FR 11458) would likely have a Federal action or permitting occurs, the the Highway 180 West Bridge and south negative impact on ongoing and future known presence of western yellow- of the boundary of the Gila National voluntary conservation efforts by CPW billed cuckoos or their habitat would Forest. Eight pastures that incorporate and adjacent private landowners. require evaluation under the jeopardy approximately 3,390 ac (1,372 ha) are Designating these areas over the standard of section 7 of the Act, even managed with a plan that is adapted objections of CPW could create a absent the designation of critical habitat, annually for operation of livestock and disincentive to future partnering with and thus will protect the species against farming enterprises. The management the Service to achieve conservation extinction. It is likely that most actions consists of a multifaceted and highly goals, who desire to avoid possible requiring section 7 consultation on flexible rest-rotation system using both Federal regulation under the Act. Given these lands would be for actions that native forage and irrigated fields. The our desire for cooperative partnerships have a net conservation benefit to Ranch’s numerous pastures allow a and the wildlife habitat protections improving riparian habitat and reducing relatively dynamic rotation system that enacted by the State of Colorado on threats such as nonnative invasive is modified based upon current these areas, there is a reasonable plants. Accordingly, we have conditions. Grazing use of river bottom expectation that the conservation determined that 866 ac (351 ha) of pastures is monitored by daily visual inspections. Use of these pastures is management strategies and actions will Colorado Parks and Wildlife lands are continue to be implemented into the limited to ensure that forage utilization excluded under subsection 4(b)(2) of the future. levels are moderate and over-use does Act because the benefits of excluding Although a critical habitat designation not occur. In addition, the riparian areas would require actions with a Federal these lands from critical habitat for the are monitored regularly, and riparian nexus to consult on adverse western yellow-billed cuckoo outweigh vegetation is allowed to propagate along modification, activities conducted by the benefits of their inclusion, and the the river as well as in irrigation ditches. CPW may not have a Federal nexus and exclusion of these lands from the Some specific management practices, CPW’s management already benefits designation will not result in the varying in different pastures, which wildlife and their habitat in the CRSP extinction of the species. relate to the western yellow-billed

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cuckoo and its habitat are: (1) Grazing and the public regarding the potential natural resources and that remove or is limited to November through April to conservation value of an area, and this reduce disincentives to conservation avoid negative impacts during migration may focus and contribute to (Wilcove et al. 1996, entire; Bean 2002, and nesting season; (2) animal units are conservation efforts by other parties by pp. 1–7). Thus, it is important for the adjusted to protect and maintain the clearly delineating areas of high western yellow-billed cuckoo recovery riparian vegetation needed by the conservation value for certain species. to build on continued conservation western yellow-billed cuckoo; (3) Any information about the western activities such as these with a proven restoration efforts follow flood events yellow-billed cuckoo and its habitat that partner, and to provide positive that destroy habitat; and (4) herbicide reaches a wide audience, including incentives for other private landowners and pesticides are only used in rare other parties engaged in conservation who might be considering implementing circumstances and are not used near activities, would be considered voluntary conservation activities, but occupied territories during breeding valuable. However, the U-Bar Ranch is who have concerns about incurring season. These long practiced flexible already working with the Service to incidental regulatory or economic and adaptive management practices address the conservation and recovery impacts. have resulted in the expansion, of the species. For these reasons, The benefits of excluding this area protection, and successful continuance designation of critical habitat would from critical habitat will encourage the of a large southwestern willow have few, if any, additional benefits continued conservation, land flycatcher population, which has beyond those that will result from management, and coordination with the ultimately also provided benefit to the continued consultation for the presence Service. If this area is designated as western yellow-billed cuckoo. of the species. critical habitat, we may jeopardize As an example of long standing future conservation, research, and successful restoration practices, in 1995, Benefits of Exclusion—U-Bar Ranch information sharing for the recovery of active restoration followed the flooding Significant benefits would be realized the western yellow-billed cuckoo. destruction of the Bennett Farm fields in by excluding the Ranch that include: (1) Benefits of Exclusion Outweigh the the 162 ha (400 ac) River Pasture. The The continuance and strengthening of Benefits of Inclusion—U-Bar Ranch Bennett Restoration Project is a series of our effective cooperative relationship artificially created, flooded marshy with the Ranch to promote the We have determined that the benefits areas located between irrigated and dry- conservation of the western yellow- of exclusion of U-Bar Ranch, with the land pastures and the river. The Bennett billed cuckoo and its habitat; (2) the implementation of their management Restoration Project is a mosaic of allowance for continued meaningful plan, outweighs the benefits of vegetation in successional stages with collaboration and cooperation in inclusion, because the Ranch is dense patches and lines of willows and surveys and research as we work currently managing western yellow- cottonwoods occurring in manmade towards recovery of the species; and (3) billed cuckoo and southwestern willow oxbows. The site now consistently the provision of conservation benefits to flycatcher breeding sites successfully supports western yellow-billed cuckoos. the Gila River ecosystem and the and is committed to maintaining and The 2016 surveys recorded up to 7 western yellow-billed cuckoo and its enhancing habitats to benefit wildlife. detections of western yellow-billed habitat that might not otherwise occur. The benefits of including the Ranch in cuckoos at the Bennett site. As mentioned above, the Ranch is an critical habitat are few, and are limited important land manager in the Upper to educational benefits since these lands Benefits of Inclusion—U-Bar Ranch Gila River area. The surveys, are privately owned and thus one trigger As discussed above under Effects of conservation, restoration and for section 7 consultation for adverse Critical Habitat Designation Section 7 management information submitted to modification is lacking. The benefits of Consultation, Federal agencies, in the Service by the Ranch document that excluding this area from designation as consultation with the Service, must meaningful collaborative and critical habitat for the western yellow- ensure that their actions are not likely cooperative work for the western billed cuckoo are significant, and to jeopardize the continued existence of yellow-billed cuckoo and its habitat will include encouraging the continuation of any listed species or result in the continue on their land. The Ranch has adaptive management measures such as destruction or adverse modification of committed to several ongoing or future monitoring, surveys, research, any designated critical habitat of such management, restoration, enhancement, enhancement, and restoration activities species. The difference in the outcomes and survey activities. The results of that the Ranch currently implements of the jeopardy analysis and the adverse these activities promote long term and plans for the future. The exclusion modification analysis represents the protection and conserve the western of this area will likely also provide regulatory benefit and costs of critical yellow-billed cuckoo and its habitat on additional benefits to the species by habitat. A critical habitat designation the Ranch. encouraging and maintaining a requires Federal agencies to consult on Because so many important areas with cooperative working relationship with whether their activity would destroy or western yellow-billed cuckoo habitat the Ranch. adversely modify critical habitat to the occur on private lands, collaborative Through their and their long-time point where recovery could not be relationships with private landowners lessee’s efforts, FMC has demonstrated a achieved. As this is private property and are important in recovering the species. commitment to management practices consultation will be rare, critical habitat The western yellow-billed cuckoo and on the Ranch that have conserved and is not anticipated to have much effect its habitat are expected to benefit benefited the western yellow-billed due to lack of Federal actions. Given the substantially from voluntary landowner cuckoo population in that area over the anticipated lack of section 7 management actions that implement past decade. In addition, FMC had consultation, the dependence on private appropriate and effective conservation privately funded scientific research at conservation actions is more important. strategies. Where consistent with the and in the vicinity of the Ranch in order Another important benefit of discretion provided by the Act, it is to develop data that has contributed to including lands in a critical habitat beneficial to implement policies that the understanding of habitat selection designation is that it can serve to provide positive incentives to private and distribution of the western yellow- educate landowners, agencies, tribes, landowners to voluntarily conserve billed cuckoo. Considering the past and

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ongoing efforts of management and techniques described below. From the overlapped with the property and was research to benefit the western yellow- 2016 baseline study as well as from associated with the Copper Flat Mine billed cuckoo, done in coordination and incidental observations, the riparian and one informal consultation that cooperation with the Service, we find habitat provides refuge to western resulted in concurrence of a ‘‘not likely the benefits of excluding areas of the U- yellow-billed cuckoos suspected of to adversely affect’’ determination. Bar Ranch outweigh the benefits of nesting on the property. Since the area is on private property, we including it in critical habitat. The Ranch is managed as a working expect that future consultations will landscape, supporting bison ranching, also be rare and that critical habitat is Exclusion Will Not Result in Extinction commercial and recreational hunting, not anticipated to have much effect due of the Species—U-Bar Ranch ecotourism, conservation and to lack of Federal actions. Given the We have determined that exclusion of restoration projects, and scientific anticipated lack of section 7 areas of the Ranch will not result in research. While these activities have consultation, the dependence on private extinction of the species, nor hinder its been ongoing, listed or sensitive species conservation actions is more important. recovery because FMC management will such as the western yellow-billed Another possible benefit is that the ensure the long-term persistence and cuckoo, the Chiricahua leopard frog designation of critical habitat can serve protection of western yellow-billed (Rana chiricahuensis), Rio Grande chub to educate the public regarding the cuckoo habitat at the Ranch and because (Gila Pandora), Rio Grande sucker potential conservation value of an area, the Ranch is committed to greater (Catostomus plebeius) and black-tailed and this may focus and contribute to conservation measures on their land prairie dogs (Cynomys ludovicianus conservation efforts by other parties by than would be available through the arizonensis) have all coexisted on the clearly delineating areas of high designation of critical habitat. In property. Examples of conservation conservation value for certain species. addition, as discussed above under pertaining to these sensitive species Any information about the western Effects of Critical Habitat Designation include pumping water to support yellow-billed cuckoo and its habitat that Section 7 Consultation, if a Federal Chiricahua leopard frog habitat and reaches a wide audience, including action or permitting occurs, the known captive breeding/rearing of the species. other parties engaged in conservation presence of western yellow-billed Monitoring Rio Grande chub and Rio activities, would be considered cuckoos or their habitat would require Grande sucker habitat, surveying the valuable. However, the Ranch is already evaluation under the jeopardy standard species, and translocating when working with the Service and The of section 7 of the Act, even absent the appropriate are also examples of Nature Conservancy to address the designation of critical habitat, and thus conservation. In order to protect conservation and recovery of the will protect the species against sensitive species such as the western species. extinction. Accordingly, we have yellow-billed cuckoo and others located Based on this history of conservation determined that approximately 1,142 ac on the Ranch, the Ranch has and management practices, we have (462 ha) of land within Unit 33: NM–2 constructed fencing and monitored determined that designation of critical Gila River owned by the U-Bar Ranch browsing activity and provided habitat would have few, if any, are excluded under subsection 4(b)(2) of supplemental feed and water when additional benefits beyond those that the Act because the benefits of necessary to move bison away from would result from the species being exclusion outweigh the benefits of sensitive areas and protect habitats. listed as threatened. inclusion and will not cause the Considering the past and ongoing efforts Benefits of Exclusion—Ladder Ranch extinction of the species. of management and research to benefit the western yellow-billed cuckoo as We have determined that significant Unit 40 (NM–9) Animas—Ladder benefits would be realized by excluding Ranch, NM well as other listed or sensitive species within the Ranch, we find the benefits the Ranch that include: (1) The In the revised proposed rule we of excluding the Ranch outweigh the continuance and strengthening of our identified the entire 608 ac (246 ha) of benefits of including it in critical cooperative relationship with the Ranch private land for exclusion in Unit 40 habitat. to promote the conservation of the (NM–9) along Las Animas Creek owned western yellow-billed cuckoo and its by the Turner Ranch Properties. The Benefits of Inclusion—Ladder Ranch habitat; (2) the allowance for continued Ladder Ranch (Ranch) is located near As discussed above under Effects of meaningful collaboration and Truth or Consequences in Sierra Critical Habitat Designation Section 7 cooperation in surveys and research as County, New Mexico. The Nature Consultation, Federal agencies, in we work towards recovery of the Conservancy is a Conservation Guardian consultation with the Service, must species; and (3) the provision of of the Turner Conservation Trust (which ensure that their actions are not likely conservation benefits to the Las Animas includes the Ladder Ranch). The Turner to jeopardize the continued existence of Creek ecosystem and the western Conservation Trust has a goal of any listed species or result in the yellow-billed cuckoo and its habitat that demonstrating how private lands can be destruction or adverse modification of might not otherwise occur. The Ranch is innovatively managed to allow any designated critical habitat of such an important land manager in the Las conservation and commerce to co-exist species. The difference in the outcomes Animas Creek, a tributary to the Rio to sustain the natural diversity of the of the jeopardy analysis and the adverse Grande. The surveys, conservation, landscape. The Ranch has committed to modification analysis represents the restoration and management management, protections of habitat, regulatory benefit and costs of critical information submitted by the Ranch water availability, and survey activities habitat. A critical habitat designation document that meaningful collaborative according to the Trust Agreement with requires Federal agencies to consult on and cooperative work for the western the Nature Conservancy and has whether their activity would destroy or yellow-billed cuckoo and other listed or demonstrated a commitment to adversely modify critical habitat to the sensitive species and their habitat will conservation of the western yellow- point where recovery could not be continue on their land. Through their billed cuckoo by completing formal achieved. Since the western yellow- Trust Agreement with The Nature presence/absence surveys for the billed cuckoo was listed in 2014, there Conservancy, the Ranch has committed species in 2016 and the management has been one formal consultation that to future management, protections of

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habitat and water availability, and critical habitat. In addition, as discussed govern how EBID operates and manages survey activities. We have determined above under Effects of Critical Habitat the water it provides to its users. that the results of these activities Designation Section 7 Consultation, if a Prior to the listing of the western promote long term protection and Federal action or permitting occurs, the yellow-billed cuckoo, IBWC’s conserve the western yellow-billed known presence of western yellow- management of the lower Rio Grande cuckoo and its habitat on the Ranch. billed cuckoos or their habitat would emphasized canalization to facilitate The benefits of excluding this area from require evaluation under the jeopardy efficient water deliveries and flood critical habitat will encourage the standard of section 7 of the Act, even control. As a result, the channel continued conservation, land absent the designation of critical habitat, narrowed and degraded, with limited management, and coordination with the and thus will protect the species against areas for overbank flooding to support Service by granting the Ranch’s request extinction. Accordingly, we have expansive native riparian communities. for exclusion and acknowledging their determined approximately 608 ac (246 The vast majority of floodplains, which history of conservation for the species. ha) of land within Unit 40 (NM–9) would have formerly supported native Animas owned by Turner Ranch riparian vegetation, including some Benefits of Exclusion Outweigh the western yellow-billed cuckoo habitat, Benefits of Inclusion—Ladder Ranch Properties should be excluded under subsection 4(b)(2) of the Act because the are now subject to substantial human We have determined that the benefits benefits of exclusion outweigh the impacts by agriculture, urbanization, of exclusion of Ladder Ranch, with the benefits of inclusion and will not cause recreation, vegetation encroachment and implementation of actions for the extinction of the species. management, grazing, fire, and other conservation of western yellow-billed stressors. IBWC has worked for ten years cuckoo habitat, outweighs the benefits Unit 41 (NM–10) Selden Canyon and to develop habitat restoration areas of inclusion. The benefits of including Radium Springs under a 2009 Record of Decision. From the Ranch in critical habitat are low, In New Mexico, along the lower Rio 2009 to 2019, IBWC planted and are limited to educational benefits Grande south of Caballo Reservoir, the approximately 123,000 trees and shrubs since these lands are privately owned Elephant Butte Irrigation District (EBID) on more than 500 ac (202 ha) of and the trigger for section 7 consultation and the El Paso County Water restoration sites, with about 100 ac (40 for adverse modification of habitat due Improvement District No. 1 (EPWD) ha) targeting the creation of native to critical habitat is lacking. Past, manages the water from the Rio Grande canopy woodland habitat that will present, and future coordination with in Elephant Butte Reservoir for eventually be beneficial to the western the landowner has provided and will agricultural use, and the International yellow-billed cuckoo and developed a continue to provide sufficient Boundary and Water Commission River Management Plan in 2014 (IBWC educational benefits regarding western (IBWC) (a Federal Agency) is 2014, entire). Additionally, the practice yellow-billed cuckoo habitat and responsible for maintaining levees and of mowing willow trees has been conservation needs on these lands, such ceased, which has already added to the channel irrigation facilities, and that there would be minimal additional distribution and abundance of riparian floodway management. The entire educational benefit from designation of vegetation. Plus, western yellow-billed approximately 237 ac (96 ha) of Selden critical habitat. The benefits of cuckoo surveys have and will continue Canyon and Radium Springs Unit 41 excluding this area from designation as to occur, as will vegetation monitoring. critical habitat for the western yellow- has been identified for exclusion from In 2016, IBWC updated their River billed cuckoo are significant, and critical habitat. Together, the EBID, Management Plan to incorporate the include encouraging the continuation of EPWD, and IBWC have planned and western yellow-billed cuckoo (IBWC adaptive management measures such as implemented a large-scale riparian 2016, entire) and includes conservation monitoring, surveys, research, habitat improvement project along the measures such as avoidance areas enhancement, and habitat protection lower Rio Grande from Percha Dam to around western yellow-billed cuckoo that the Ranch currently implements American Dam (termed the lower Rio observations, formal surveys to be and plans for the future. The exclusion Grande Elephant Butte Irrigation District completed on an annual basis, and of this area will likely also provide Canalization and Conservation Project). restoration features to target western additional benefits to the species by The lower Rio Grande south of yellow-billed cuckoo habitat suitability. encouraging and maintaining a Caballo Reservoir is managed by the Measures to protect the western yellow- cooperative working relationship with IBWC, whose mission is to provide bi- billed cuckoo as well as habitat the Ranch. We find that the benefits of national solutions to issues that arise restoration sites targeting potential excluding this area from critical habitat during the application of United cuckoo habitat are included in the designation outweigh the benefits of States—Mexico treaties regarding updated River Management Plan. The including this area. boundary demarcation, national goal is to provide western yellow-billed ownership of waters, sanitation, water cuckoo habitat in the lower Rio Grande, Exclusion Will Not Result in Extinction quality, and flood control in the border while still delivering water, as required of the Species—Ladder Ranch region. Water deliveries to downstream by IBWC and EBID. The concerted effort We have determined that exclusion of water users for irrigation and other by multiple agencies and groups to areas of the Ranch will not result in purposes are managed by EBID which improve habitat in this reach of the Rio extinction of the species, nor hinder its operates, maintains, and owns the Grande has already provided habitat recovery because management by The irrigation distribution system. This benefits to the southwestern willow Nature Conservancy and Turner Ranch irrigation distribution system was flycatcher and are expected to provide Properties will ensure the long-term constructed by Reclamation and benefit to the western yellow-billed persistence and protection of western includes canals, laterals, drains, waste- cuckoo as well. EBID and EPWD have yellow-billed cuckoo habitat at the ways, and maintenance roads on both voluntarily worked with NFWF to Ranch, and because the Ranch is riverbanks, and structures. State statutes develop a water transaction program committed to greater conservation provide for the equitable distribution of that will allow IBWC and other partners measures on their land than would be water from the Elephant Butte Reservoir to purchase or lease water that can be available through the designation of to all of its water users and generally used to flood riparian habitat similar to

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an agricultural crop. The participation benefits resulting from the EBID’s habitat designation on their abilities to by EBID is crucial to the continued Canalization and Conservation Project, manage their water rights, as stated in habitat improvement of this river reach the incremental benefits of designating their comments on the revised proposed for the benefit of the western yellow- critical habitat at Selden Canyon and rule (see Summary of Comments and billed cuckoo. The number of estimated Radium Springs are minimized. Recommendations). Through fostering a western yellow-billed cuckoo territories Another important benefit of cooperative working relationship with detected annually in this unit from 2014 including lands in a critical habitat EBID, IBWC and others conducting to 2019 ranged from 2 to 7 (Reclamation designation is that the designation can surveys and habitat monitoring, and 2019, p. 46). serve to educate landowners, agencies, undertaking habitat restoration and tribes, and the public regarding the enhancement projects are realizing Benefits of Inclusion—Canalization and potential conservation value of an area, western yellow-billed cuckoo Conservation Project, NM and may help focus conservation efforts conservation benefits. Without EBID’s As discussed above under Effects of on areas of high conservation value for support in carrying out these restoration Critical Habitat Designation Section 7 certain species. Any information about efforts and implementing the water Consultation, Federal agencies, in the western yellow-billed cuckoo that transaction program, significant consultation with the Service, must reaches a wide audience, including conservation benefits to the western ensure that their actions are not likely parties engaged in conservation yellow-billed cuckoo could be lost. For to jeopardize the continued existence of activities, is valuable. The designation these reasons, we have determined that any listed species or result in the of critical habitat may also inform fostering our working relationship with destruction or adverse modification of implementation of other Federal laws, EBID and their constituents is important any designated critical habitat of such such as NEPA or the Clean Water Act. to maintain western yellow-billed species. The difference in the outcomes These laws analyze the potential for cuckoo conservation benefits. of the jeopardy analysis and the adverse projects to significantly affect the Proactive voluntary conservation modification analysis represents the environment. Critical habitat may signal efforts have and will continue to be regulatory benefit and costs of critical the presence of sensitive habitat that important to achieve western yellow- habitat. A critical habitat designation could otherwise be missed in the review billed cuckoo recovery. As the water requires Federal agencies to consult on process for these other environmental manager for the lower Rio Grande, whether their activity would destroy or laws. EBID’s willingness to participate and adversely modify critical habitat to the We have determined that there would coordinate the water transaction point where recovery could not be be little, if any educational and program is crucial to creating successful achieved. informational benefit gained from western yellow-billed cuckoo There may be some benefits from the including the lower Rio Grande within restoration sites. Their agreement to designation of critical habitat along the the designation because this area is well work with IBWC, NFWF, and others lower Rio Grande, primarily because it known as an important area for western demonstrates that meaningful, would require Federal agencies to yellow-billed cuckoo management and collaborative, and cooperative work for perform additional review of their recovery. For example, Federal agencies the western yellow-billed cuckoo and its project implementation. While this area and stakeholders integral to water and habitat will continue within their was not previously designated as land management along the lower Rio jurisdiction. Therefore, we have western yellow-billed cuckoo critical Grande are involved in conducting determined that the results of these habitat, the IBWC has already western yellow-billed cuckoo surveys, voluntary restoration activities will undergone section 7 consultation due to initiated section 7 consultation, and promote long-term protection and the occurrence of southwestern willow have planned and are implementing conserve the western yellow-billed flycatchers and western yellow-billed western yellow-billed cuckoo cuckoo and its habitat within the lower cuckoos along the lower Rio Grande. conservation actions. Consequently, we Rio Grande. The benefits of excluding With the implementation of the western have determined that the informational this area from critical habitat will yellow-billed cuckoo conservation benefits and support for implementing encourage the continued cooperation actions included in the Canalization and other environment regulations have and development of the water Conservation Project, which are already occurred through past actions transaction program which will allow expected to avoid the species in even in the absence of critical habitat. IBWC to provide water to the habitat construction activities and result in Benefits of Exclusion—Canalization and restoration sites. more breeding habitat and territories, Excluding the lower Rio Grande from Conservation Project, NM we provided concurrence to IBWC’s the critical habitat designation that are determination that their actions would The benefits of excluding the lower within the jurisdiction of IBWC will not likely to adversely affect the western Rio Grande at Selden Canyon and provide significant benefits to the yellow-billed cuckoo (Service 2017, pp. Radium Springs from designated critical western yellow-billed cuckoo through 1–2). Any future Federal projects habitat include: (1) Continued and sustaining and enhancing the working implemented by other agencies with strengthened effective working relationship between the Service, IBWC, responsibilities along the lower Rio relationships with IBWC, EBID, EBID, and other stakeholders. The Grande, such as Federal Highway Audubon, and other stakeholders and willingness of IBWC and EBID to work Administration, or from the BLM on partners; (2) meaningful collaboration with the Service on innovative ways to surrounding lands, would require toward western yellow-billed cuckoo manage and develop western yellow- evaluation under section 7 of the Act. recovery, including; (3) the billed cuckoo habitat will reinforce our However, because western yellow-billed development of a water transaction partnership that is important in order to cuckoos occur along the lower Rio program that provides irrigation water achieve western yellow-billed cuckoo Grande during the breeding season, to restoration sites that might not recovery. We can often achieve greater exhibit a certain amount of site fidelity otherwise occur and that are expected to conservation through voluntary actions and their habitat is protected due to the provide benefit to western yellow-billed than through implementing a critical long-term and extensive western yellow- cuckoos. EBID and constituents are habitat regulation on a project-by- billed cuckoo habitat conservation concerned of the impacts of a critical project basis.

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By excluding the Rio Grande south of required if the area was designated as partnerships, as summarized in the Caballo Dam in New Mexico from critical habitat. Benefits of Exclusion section above, we critical habitat designation, we are also Exclusion of these lands from critical determined the significant benefits of encouraging new partnerships with habitat will help preserve the exclusion outweigh the benefits of other landowners and jurisdictions to partnerships we have developed with critical habitat designation. protect the western yellow-billed local jurisdictions and project Exclusion Will Not Result in Extinction cuckoo and other listed or sensitive proponents through the development of the Species—Canalization and species. We consider this voluntary and ongoing implementation of their Conservation Project, NM partnership in conservation vital to our conservation plan. These partnerships understanding of the status of species are focused on western yellow-billed We determine that the exclusion of on non-Federal lands and necessary for cuckoo conservation and securing the lower Rio Grande at Selden Canyon us to implement recovery actions such conservation benefits that will lead to and Radium Springs from the as habitat protection and restoration, recovery. Because we now have a designation of critical habitat for the and beneficial management actions for consistent western yellow-billed cuckoo western yellow-billed cuckoo will not species. population along the lower Rio Grande, result in extinction of the species we are relying on the conservation because current conservation efforts Benefits of Exclusion Outweigh the efforts of the many stakeholders to under IBWC’s River Management Plan Benefits of Inclusion—Canalization and create, manage, and maintain western adequately protect the geographical Conservation Project, NM yellow-billed cuckoo habitat. We expect areas containing the physical or We have reviewed and evaluated the that the results of implementing these biological features essential to western lower Rio Grande at Selden Canyon and western yellow-billed cuckoo yellow-billed cuckoo conservation. As Radium Springs, and have concluded conservation actions will generate discussed above under Effects of Critical that the benefits of exclusion under benefits beyond those that could be Habitat Designation Section 7 section 4(b)(2) of the Act outweigh the achieved from project-by-project Consultation, if a Federal action or benefits of including these areas as evaluation through a critical habitat permitting occurs, the known presence western yellow-billed cuckoo critical designation. The conservation gains to of western yellow-billed cuckoos or habitat. The incremental regulatory the western yellow-billed cuckoo their habitat would require evaluation benefits of including these lands within identified south of Caballo Dam are under the jeopardy standard of section the critical habitat designation are more beneficial than designation of 7 of the Act, even absent the designation minimized because the regulatory, critical habitat because of the of critical habitat, and thus will protect educational, and ancillary benefits that development of the water transaction the species against extinction. In our would result from critical habitat program. Our partnership, along with Biological Opinion, the Service designation are similar to the benefits the 2017 biological opinion for IBWC’s provided concurrence that already afforded through the IBWC 2016 canalization project and restoration sites implementation of the IBWC River Management Plan and protections [which includes the 2016 River Canalization and Conservation Project associated with the listing of the Management Plan (updated to and associated restoration plans was not western yellow-billed cuckoo. In incorporate the western yellow-billed likely to adversely affect the species addition, the 2017 Biological cuckoo in 2018) and the water (Service 2017, pp. 1–2), and is likely to Assessment associated with IBWC’s transaction program], ensure benefit the species. Therefore, based on Long-Term River Management of the Rio implementation of the protections and the benefits described above, we have Grande Canalization Project (IBWC management actions identified within determined that this exclusion would 2017, entire) commits to not removing their plan. Therefore, the relative not result in the extinction of the any nesting habitat for western yellow- benefits of excluding critical habitat on western yellow-billed cuckoo, and are billed cuckoos or otherwise causing these lands are substantial and outweigh excluding the entire 237 ac (96 ha) of displacement of the species. The the benefits of including the area as the lower Rio Grande at Selden Canyon implementation of IBWC collaborative critical habitat. and Radium Springs from this final conservation project provides for We have determined that the critical habitat designation. significant conservation, management, additional regulatory benefits of improvement, and protection of habitat designating occupied areas as western Private or Other Non-Federal for western yellow-billed cuckoo yellow-billed cuckoo critical habitat, Conservation Plans Related to Permits conservation. such as protection afforded through the Under Section 10 of the Act The Service has created close section 7(a)(2) consultation process, are HCPs for incidental take permits partnerships through the development minimal. Furthermore, the conservation under section 10(a)(1)(B) of the Act of IBWC’s restoration plan, which objectives identified by the IBWC Plan, provide for partnerships with non- incorporates protections and in conjunction with our partnership Federal entities to minimize and management objectives for the western with the EBID and others will provide mitigate impacts to listed species and yellow-billed cuckoo and the habitat a greater benefit to the species than their habitat. In some cases, HCP upon which it depends for breeding, critical habitat designation. We also permittees agree to do more for the sheltering, and foraging activities. The conclude that the educational and conservation of the species and their conservation strategy identified in ancillary benefits of designating critical habitats on private lands than IBWC’s 2016 River Management Plan, habitat for the western yellow-billed designation of critical habitat would along with our close coordination with cuckoo at Selden Canyon and Radium provide alone. We place great value on IBWC, EBID and other partners, Springs would be negligible because of the partnerships that are developed addresses the identified threats to the partnership established between the during the preparation and western yellow-billed cuckoos and its Service and IBWC, and the management implementation of HCPs. habitat. These actions serve to manage objectives identified in the biological CCAAs and SHAs are voluntary and protect habitat needed for western assessment and biological opinion. agreements designed to conserve yellow-billed cuckoo above those Therefore, in consideration of the candidate and listed species, conservation measures which may be relevant impact to current and future respectively, on non-Federal lands. In

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exchange for actions that contribute to Nevada from Lake Mead to Mexico, in Separation Canyon). Also, a portion of the conservation of species on non- the Counties of La Paz, Mohave, and the Bill Williams River at the Colorado Federal lands, participating property Yuma in Arizona; Imperial, Riverside, River confluence at Lake Havasu occurs owners are covered by an ‘‘enhancement and San Bernardino Counties in within the LCR MSCP planning area. of survival’’ permit under section California; and Clark County in Nevada. The LCR MSCP permittees will create 10(a)(1)(A) of the Act, which authorizes In 1995, U.S. Department of the Interior and maintain 4,050 ac (1,639 ha) of incidental take of the covered species agencies; water, power, and wildlife western yellow-billed cuckoo habitat, that may result from implementation of resources agencies from Arizona, reduce the risk of loss of created habitat conservation actions, specific land uses, California, and Nevada; Native to wildfire, replace created habitat and, in the case of SHAs, the option to American tribes; environmental affected by wildfire, and avoid and return to a baseline condition under the interests; and recreational interests minimize operational and management agreements. The Service also provides agreed to form a partnership to develop impacts to western yellow-billed enrollees assurances that we will not and implement a long-term endangered cuckoos over the 50-year life of the impose further land-, water-, or species compliance and management permit (2005 to 2055) (Lower Colorado resource-use restrictions, or require program for the historical floodplain of River Multi-Species Conservation additional commitments of land, water, the lower Colorado River. The goal was Program 2004, pp. 5–30–5–36, Table 5– or finances, beyond those agreed to in to facilitate the development of an 10, 5–58–5–60). Additional research, the agreements. ecosystem-based HCP and coordination management, monitoring, and When we undertake a discretionary with the various LCR MSCP Federal protection of western yellow-billed section 4(b)(2) exclusion analysis, we partners. Reclamation has taken lead for cuckoos will occur. In addition to will always consider areas covered by coordinating activities under the LCR western yellow-billed cuckoo habitat an approved CCAA/SHA/HCP, and MSCP. creation and subsequent management, generally exclude such areas from a A Steering Committee provides the LCR MSCP provides funds to ensure designation of critical habitat if three oversight to Reclamation’s LCR MSCP existing western yellow-billed cuckoo conditions are met: Program Manager, operating under a habitat is maintained. Western yellow- (1) The permittee is properly Funding and Management Agreement billed cuckoo management associated implementing the CCAA/SHA/HCP and that was prepared among Federal, State, with the LCR MSCP is conducted in is expected to continue to do so for the local, and tribal party participants (LCR conjunction and coordinated with term of the agreement. A CCAA/SHA/ MSCP 2007, p. 1–3). The potentially management occurring on the National HCP is properly implemented if the affected parties and other interested Wildlife Refuges (Bill Williams, Havasu, permittee is, and has been, fully parties established a public process for Cibola, and Imperial) and Tribal lands implementing the commitments and developing the required documents and (Colorado River Indians Tribes, Fort provisions in the CCAA/SHA/HCP, plans. Various public agencies and other Mohave Tribe, Cocopah Tribe, implementing agreement, and permit. non-governmental groups have Chemehuevi Tribe, and Fort Yuma (2) The species for which critical participated in developing the various (Quechan) Tribe) along the LCR and habitat is being designated is a covered components of the LCR MSCP. The LCR within the LCR MSCP planning area. species in the CCAA/SHA/HCP, or very MSCP primarily covers activities On the lower Colorado River and Bill similar in its habitat requirements to a associated with water storage, delivery, Williams River, we identified 77,726 ac covered species. The recognition that diversion, and hydroelectric production. (31,468 ha) of proposed critical habitat the Services extend to such an The record of decision was signed by for exclusion within the LCR MSCP agreement depends on the degree to the Secretary of the Interior on April 2, planning area and off-site conservation which the conservation measures 2005. An important catalyst of the effort areas of La Paz, Mohave, and Yuma undertaken in the CCAA/SHA/HCP was a 1997 jeopardy biological opinion Counties in Arizona; and Imperial, would also protect the habitat features for the southwestern willow flycatcher Riverside, and San Bernardino Counties of the similar species. issued to Reclamation for lower in California. Western yellow-billed (3) The CCAA/SHA/HCP specifically Colorado River operations (Service cuckoo management within the addresses the habitat of the species for 2005a, entire). The Federal agencies proposed Units in the LCR MSCP which critical habitat is being involved in the LCR MSCP include planning area is occurring on National designated and meets the conservation Reclamation, Bureau of Indian Affairs Wildlife Refuges (Bill Williams, Havasu, needs of the species in the planning (BIA), NPS, BLM, WAPA, and the Cibola, and Imperial) and Tribal lands area. Service. Native American Tribes (Colorado River Indian Tribes, Fort We have determined that the plans, involved in the LCR MSCP and owning Yuma (Quechan) Tribe, Cocopah Tribe, HCPs, or Agreements identified in Table lands within the planning area include and Fort Mojave Tribe). During the 3, fulfill the above criteria, and we are the Colorado River Indians Tribes, Fort breeding season the area is considered excluding the non-Federal lands Mohave Tribe, Cocopah Tribe, to have been occupied at the time of covered by these plans that provide for Chemehuevi Tribe, and Fort Yuma listing and is currently occupied. the conservation of western yellow- (Quechan) Tribe. Reclamation has provided protection billed cuckoo. The LCR MSCP planning area and benefits to this species since 2005 primarily surrounds proposed western and conducts annual monitoring of the Unit 1 (CA/AZ–1) Colorado River 1 and yellow-billed cuckoo critical habitat species. Reclamation requested Unit 2 (CA/AZ–2) Colorado River 2 and along the lower Colorado River from excluding habitat within the entire Unit 3 (AZ–1) Bill Williams River— Lake Mead to the southerly 914,200 ac (369,964 ha) LCR MSCP Lower Colorado River Multi-Species international border. Portions of the planning area and off-site conservation Conservation Program (LCR MSCP) Colorado River, Lake Mead, Virgin areas (LCR MSCP implementation area) The Lower Colorado River Multi- River, and Muddy River in Arizona, from critical habitat under the rationale Species Conservation Program HCP Utah, and Nevada are included where that conservation measures described in (2004, entire) was developed for areas they surround Lake Mead (including the the LCR MSCP Habitat Conservation along the lower Colorado River along conservation space of Lake Mead, which Plan provide protection and benefits to the borders of Arizona, California, and extends up the Colorado River to the yellow-billed cuckoo and its habitat

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(LCRMSCP 2004, pp. 1–506; management, and public access, and limited benefits to designating critical Reclamation 2020a, p. 2). Because the possibly some land resource use. habitat on lands managed by Federal entire 914,200 ac (369,964 ha) The benefits of western yellow-billed and Tribal partners within the LCR implementation area was not proposed cuckoo critical habitat designation on MSCP implementation. as critical habitat, we are only analyzing lands managed by Federal partners We also have determined that few exclusion of the areas proposed as within the LCR MSCP planning area are additional benefits would be derived critical habitat. limited. Reclamation manages lower from including the five tribal areas Conservation and development of Colorado River water storage, river within the LCR MSCP planning area as western yellow-billed cuckoo and regulation, and channel maintenance western yellow-billed cuckoo critical southwestern willow flycatcher habitat such that the river stays within its habitat, beyond what will be achieved is a priority for all the Federal, State, incised channel and can no longer flow through the implementation of their Tribal, and private land managers onto the adjacent floodplain. As a result, management plans. No different than within the LCR MSCP planning area. In Reclamation has no discretion to change our description above, we expect that particular, the Bill Williams River, these water management actions to the degraded environmental baseline Havasu, Cibola, and Imperial NWRs and allow a better functioning stream to caused by water storage, river Fort Mohave, Colorado River Indian improve the riparian forest. Improving regulation, and channel maintenance Tribe, and Quechan Tribes are the duration, magnitude, and timing of would cause similar evaluations and implementing conservation strategies to river flow would generate overbank conclusions in section 7 consultations manage and enhance riparian resources flooding, create and recycle riparian on tribal lands within the LCR MSCP along the Colorado River. Reclamation, habitat, and, therefore, improve the planning area. Additionally, because in its lead role as Program Manager for quality and abundance of western these tribes are also implementing their the LCR MSCP, requested exclusion for yellow-billed cuckoo habitat. Because of Flycatcher Management Plans or areas proposed as critical habitat within the lack of flooding and the prevention Flycatcher and Cuckoo Management the LCR MSCP boundary. Information of overbank flows, the floodplain can no Plans that preserve existing habitat, regarding their specific activities and longer support the pre-dam riparian similarly within the limitations caused management on their lands is identified forest. by regulation of the Colorado River, in our supporting information (Service While land managers (BLM, NPS, there are likely few regulatory benefits 2020b, entire). Service NWRs and Tribes) along the to be gained from a designation of LCR floodplain do conduct western yellow-billed cuckoo critical Benefits of Inclusion—Lower Colorado discretionary actions on their lands, the habitat. River Multi-Species Conservation Plan success of their conservation actions Another important benefit of (LCR MSCP) and impacts of other actions to restore including lands in a critical habitat As discussed above under Effects of pre-dam riparian forests are limited by designation is that the designation can Critical Habitat Designation Section 7 the impacts of water management. serve to educate landowners, agencies, Consultation, Federal agencies, in Overall, the riparian forest and western tribes, and the public regarding the consultation with the Service, must yellow-billed cuckoo habitat managed potential conservation value of an area, ensure that their actions are not likely by these land management agencies are and may help focus conservation efforts to jeopardize the continued existence of not expected to be harmed further by on areas of high conservation value for any listed species or result in the site-specific land management actions certain species. Critical habitat may destruction or adverse modification of because the quality of vegetation has signal the presence of sensitive habitat any designated critical habitat of such already been degraded. To the extent that could otherwise be missed in the species. The difference in the outcomes that remaining patches of riparian review process for these other of the jeopardy analysis and the adverse habitat and western yellow-billed environmental laws. modification analysis represents the cuckoo habitat continue to exist, they Some educational and conservation regulatory benefit and costs of critical are of great value for western yellow- benefit from reinforcing other habitat. A critical habitat designation billed cuckoo conservation. As a result, environmental laws and regulations requires Federal agencies to consult on past section 7 consultations on land may also be gained from including the whether their activity would destroy or management agency actions within the LCR MSCP planning area within the adversely modify critical habitat to the proposed critical habitat along the LCR western yellow-billed cuckoo critical point where recovery could not be show that land management agencies habitat designation. However, this achieved. The areas within the LCR conserve existing riparian vegetation conservation benefit can also be MSCP planning area are occupied by and explore innovative strategies accomplished through ongoing western yellow-billed cuckoos and have outside of the restrictions on water education being conducted by the LCR undergone section 7 consultation. There management to improve vegetation MSCP. As long as the educational may be some minor benefits from the quality that could be used by western benefit is ongoing, the support of other designation of critical habitat along the yellow-billed cuckoos. Because the laws and regulations is minimized. length of the LCR for land management regulated stream flow has caused habitat Ongoing outreach that educates local actions because of the additional review degradation and existing water communities about the LCR MSCP required by Federal actions; most likely management operations prevent any program activities conducted to benefit those occurring on Service NWRs, BLM, change in water management that can species along the river including and NPS land. The western yellow- improve the riparian forest, land conservation-themed community billed cuckoo and southwestern willow management agencies are unable to events, professional conferences, Project flycatcher are well known as a listed impact these river flow conditions, nor Water Education for Teachers (Wet) species using the LCR for migration and are they able to impact river flow workshops, school programs, youth for nesting. Because these Federal conditions through non-discretionary conservation corps coordination, agencies manage open space for public mandatory reasonable and prudent volunteer opportunities, and outdoor use and wildlife, the types of actions measures or alternatives resulting from expos (LCR MSCP 2020, pp. 303–304). evaluated would mostly be associated any possible future section 7 The annual Colorado River Terrestrial with recreation, hunting, habitat consultation. Therefore, there are and Riparian meeting and Las Vegas

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Science and Technology Festival are preparing letters and biological cuckoos successfully breeding along the two events funded by the MSCP. assessments, and in the case of formal LCR since 2005 have been in habitat Although this is a well-known consultations, the development of the created and managed by the LCR in five southwestern willow flycatcher and critical habitat component of a created conservation areas: Beal Lake western yellow-billed cuckoo biological opinion. However we Conservation Area on Havasu NWR, management area, we continue to learn anticipate that the costs to perform the Cibola NWR Unit #1 Conservation Area, about these species’ biology and additional critical habitat and associated Cibola Valley Conservation Area, Palo potential impacts from proposed adverse modification analysis would not Verde Ecological Reserve on California projects may emerge at any time. be significant. Department of Fish and Wildlife land, Educating individuals, agencies, and The exclusion of the LCR from critical and Yuma East Wetlands on city of organizations with existing or updated habitat as a result of the LCR MSCP can Yuma, Quechan Indian Tribe lands, and western yellow-billed cuckoo biology is help facilitate other cooperative Arizona Game and Fish Department an ongoing process. Through the conservation activities with other lands (LCR MSCP 2020, pp. 162–163, development and implementation of the similarly situated dam operators or 179–249; Reclamation 2020a, pp. 7–8). LCR MSCP, the 2014 and 2020 western landowners. Continued cooperative Although nesting was not confirmed in yellow-billed cuckoo critical habitat relations with the States and a myriad other sites, western yellow-billed proposals, ongoing studies, the of stakeholders is expected to influence cuckoos were detected at Planet Ranch development of land management plans, other future partners and lead to greater on the Bill Williams River, Laguna and the creation of specific tribal conservation than would be achieved Division Conservation Area near Yuma, management plans, the value of the LCR through multiple site-by-site, project-by- and Hunters Hole at the southern end of and riparian habitat for the western project efforts, and associated section 7 the Limitrophe (Parametrix, Inc. and yellow-billed cuckoo is well consultations. With the current Southern Sierra Research Station 2019, established. Some educational benefits degraded condition of the entire). They have also been have already occurred through past environmental baseline and limitations documented nesting in other habitat actions even though the LCR MSCP associated with changes to dam areas between southern Nevada and the planning area is not currently operations, the LCR MSCP conservation Southern International Border with designated as critical habitat. The measures commit the program to create Mexico. importance of the LCR MSCP and manage at least 5,940 ac (2,404 ha) Failure to exclude the LCR MSCP implementation area for western yellow- of cottonwood-willow and 1,320 ac (534 planning area could be a disincentive billed cuckoo conservation to meet ha) of honey mesquite land cover types for other entities contemplating conservation goals established for the to provide habitat for 14 species partnerships as it would be perceived as LCR is well understood by managing including the western yellow-billed a way for the Service to impose agencies, Native American tribes, cuckoo (Reclamation 2020a, p. 7). A additional regulatory burdens once private industry, and public, State, and mosaic of these habitat types in patches conservation strategies have already local governments. The LCR MSCP of at least 25 ac (10 ha) and totaling at been agreed to through our permitting provides new information gained from least 4,050 ac (1,639 ha) is required to process. Private entities are motivated to its studies to all parties through reports, be created and managed for western work with the Service collaboratively to meetings, coordination, and outreach. yellow-billed cuckoos (LCR MSCP 2004, develop voluntary HCPs because of the Management recommendations entire). Between 2005 and 2019, the regulatory certainty provided by an developed from these studies include LCR MSCP has created 4,117 ac (1,666 incidental take permit under section avoiding disturbance activities in ha) of cottonwood-willow and 1,800 ac 10(a)(1)(B) of the Act with the No occupied habitat through the end of (728 ha) of mesquite habitat (LCR MSCP Surprises Assurances. This September to allow late-breeders to raise 2020, pp. 14, 15, 94; Reclamation 2020a, collaboration often provides greater young and the need to develop and p. 7) in critical habitat Units 1, 2, and conservation benefits than could be implement management actions that 3. achieved through strictly regulatory ensure long-term suitability of created The benefits of excluding lands approaches, such as critical habitat habitat. within the LCR MSCP plan area from designation. The conservation benefits critical habitat designation include resulting from this collaborative Benefits of Exclusion—Lower Colorado recognizing the value of conservation approach are built upon a foundation of River Multi-Species Conservation Plan benefits associated with these HCP mutual trust and understanding. It has (LCR MSCP) actions; encouraging actions that benefit taken considerable time and effort to The benefits of excluding the LCR multiple species; encouraging local establish this foundation of mutual trust MSCP management areas from the participation in development of new and understanding, which is one reason designation are considerable, and HCPs; and facilitating the cooperative it often takes several years to develop a include the conservation measures activities provided by the Service to successful HCP. Excluding this area described above (land acquisition, landowners, communities, and counties from critical habitat would help management, and habitat development) in return for their voluntary adoption of promote and honor that trust by and those associated with implementing the HCP. providing greater certainty for conservation through enhancing and The LCR MSCP will help generate permittees that once appropriate developing partnerships. important status and trend information conservation measures have been agreed A small benefit of excluding the LCR for western yellow-billed cuckoo to and consulted on for listed and from critical habitat includes some recovery. In addition to specific western sensitive species additional consultation reduction in administrative costs yellow-billed cuckoo conservation will not be necessary. associated with engaging in the critical actions, the development and HCP permittees and stakeholders habitat portion of section 7 implementation of this HCP provides submitted comments that they view consultations due the area being regular monitoring of western yellow- critical habitat designation along the occupied and the species being listed as billed cuckoo habitat, distribution, and LCR as unwarranted and an unwelcome threatened. Administrative costs abundance over the 50-year permit. intrusion to river operations, and an include time spent in meetings, Most of the western yellow-billed erosion of the regulatory certainty that

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is provided by their incidental take that we have in our supporting record Benefits of Exclusion Outweigh the permit and the No Surprises assurances. for this decision (see discussion above). Benefits of Inclusion—Lower Colorado Additionally, the LCR MSCP partners These proactive actions were conducted River Multi-Species Conservation Plan and stakeholders sent comments of in accordance with Secretarial Order (LCR MSCP) support for exclusion of all the LCR 3206, ‘‘American Indian Tribal Rights, MSCP partners within the planning Federal-Tribal Trust Responsibilities, We have determined that the benefits area, specifically Service NWRs because and the Endangered Species Act’’ (June of excluding the LCR MSCP planning area along the LCR within the States of they were not initially identified as 5, 1997); the relevant provision of the Arizona and California from the locations we were considering for Departmental Manual of the Department designation of western yellow-billed exclusion. Having applicants of the Interior (512 DM 2); and cuckoo critical habitat on all Federal, understand the Service’s commitment Secretarial Order 3317, ‘‘Department of State, Tribal, and non-Federal lands will encourage continued partnerships Interior Policy on Consultation with with these permittees that could result outweigh the benefits of inclusion. In Indian Tribes’’ (December 1, 2011). We in additional conservation plans or our determination, we considered and have determined that these tribes additional lands enrolled in HCPs. found that the HCP meets our criteria Our collaborative relationships with should be the governmental entities to for exclusion for HCPs (see Private or the LCR MSCP permittees clearly make manage and promote western yellow- Other Non-Federal Conservation Plans a difference in our partnership with the billed cuckoo conservation on their Related to Permits Under Section 10 of numerous stakeholders involved and lands. During our communication with the Act). Implementation of western influence our ability to form these tribes, we recognized and yellow-billed cuckoo conservation partnerships with others. Concerns over endorsed their fundamental right to included within the LCR MSCP perceived added regulation potentially provide for tribal resource management planning area, combined with the imposed by critical habitat harms this activities, including those relating to conservation efforts of other land collaborative relationship by leading to riparian ecosystems. managers, has already created and will distrust. Our experience has The benefits of excluding this HCP continue to create and manage habitat demonstrated that successful from critical habitat designation include that benefits breeding western yellow- completion of one HCP has resulted in relieving Federal agencies, State billed cuckoo and other riparian the development of other conservation agencies, landowners, tribes, dependent species. efforts and HCPs with other landowners. communities, and counties of any Under section 7 of the Act, critical Partners associated with the LCR MSCP additional regulatory burden for water habitat designation will provide little also established HCPs with the Service management actions that might be additional benefit to the western yellow- in central Arizona. There are additional considerable imposed by critical habitat. The LCR billed cuckoo within the boundaries of benefits from excluding the areas owned MSCP took many years to develop and, the LCR MSCP. The catalyst for the LCR by or held in trust for the five tribes upon completion, became a river long MSCP was largely a result of the along the LCR including the conservation plan that is consistent with jeopardy biological opinion (Service advancement of our partnership with the western yellow-billed cuckoo 1997, entire) for the southwestern the tribes and for the tribes to develop recovery objectives within the planning willow flycatcher to Reclamation for its and implement tribal conservation and area. This HCP provides western LCR operations (Service 2005a, entire). natural resource management plans for yellow-billed cuckoo conservation The Law of the River, which protects their lands and resources, which benefits and commitments toward the regulation and delivery of Colorado includes the western yellow-billed habitat development and management, River water to the western United cuckoo. Benefits associated with and western yellow-billed cuckoo States, prevents altering the regulation excluding tribes and other landowners surveys and studies that could not be of the Colorado River for the benefit of and managers also include: (1) The achieved through project-by-project a more naturally functioning system, maintenance of effective working section 7 consultations. Imposing an which can create and recycle relationships to promote the additional regulatory review after the southwestern willow flycatcher and western yellow-billed cuckoo habitat. conservation of the western yellow- HCP is completed, solely as a result of As a result, the development of the LCR billed cuckoo and its habitat; (2) the the designation of critical habitat, may MSCP and its Implementing Agreement allowance for continued meaningful undermine conservation efforts and are designed to ensure southwestern collaboration and cooperation; (3) the partnerships in many areas. In fact, it provision of conservation benefits to willow flycatcher and western yellow- could result in the loss of species’ billed cuckoo conservation within the riparian ecosystems and the western benefits if future participants abandon yellow-billed cuckoo and its habitat that planning area and includes management the voluntary HCP process. Designation might not otherwise occur; and (4) the measures to protect, restore, enhance, of critical habitat along the LCR could reduction or elimination of manage, research, and monitor western administrative and/or project be viewed as a disincentive to those yellow-billed cuckoo habitat (along the modification costs as analyzed in the entities currently developing HCPs or Colorado River and at mitigation sites). economic analysis. contemplating them in the future. We The adequacy of LCR MSCP During the development of the 2014 find the section 7 consultation process conservation measures to protect the and 2020 western yellow-billed cuckoo for a designation of critical habitat, then candidate western yellow-billed critical habitat proposals, we sought and above and beyond that which is already cuckoo and its habitat have undergone received input from tribes. We provided required for the species, is unlikely to evaluation under a section 7 technical assistance to tribes requesting result in additional protections for the consultation conference opinion under assistance to develop measures to western yellow-billed cuckoo on lands the Act, reaching a non-jeopardy conserve the western yellow-billed within the LCR MSCP planning and conclusion. Therefore, the benefit of cuckoo and its habitat on their lands. implementation area (which includes including the LCR MSCP planning area These measures are contained within NPS, Service, BLM, tribal lands, and to require section 7 consultation for the management and conservation plans non-Federal lands). critical habitat is minimized.

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The commitment by the LCR MSCP along the LCR. There are continued MSCP planning area will not result in partners to western yellow-billed projects developed, carried out, funded, extinction of the western yellow-billed cuckoo conservation throughout the and permitted by Federal agencies such cuckoo. As discussed above under planning area is considerable and we as Reclamation and BLM that are not Effects of Critical Habitat Designation have determined that the LCR MSCP has covered by the LCR MSCP. Fire Section 7 Consultation, if a Federal met the conditions to be excluded from management, habitat restoration, action or permitting occurs, the known critical habitat as identified above (see recreation, and other activities have the presence of western yellow-billed Private or Other Non-Federal ability to adversely affect the western cuckoos or their habitat would require Conservation Plans Related to Permits yellow-billed cuckoo and critical evaluation under the jeopardy standard Under Section 10 of the Act). The LCR habitat. Minor changes in habitat of section 7 of the Act, even absent the MSCP partners commit through restoration, fire management, and designation of critical habitat, and thus implementation of their permit to recreation could occur as result of a will protect the species against developing, managing, and protecting critical habitat designation in the form extinction. Second, the amount of 4,050 ac (1,639 ha) of western yellow- of additional discretionary conservation suitable habitat being created as result billed cuckoo nesting habitat and has recommendations to reduce impacts to of implementing the LCR MSCP, already created 4,117 ac (1,666 ha) of critical habitat. Therefore, if the LCR combined with management by other cottonwood-willow and 1,800 ac (728 was designated as critical habitat, there land managers, is expected to be able to ha) of mesquite habitat within the may be some benefit through provide substantial western yellow- boundaries of their planning area (LCR consultation under the adverse billed cuckoo breeding habitat. The MSCP 2020, pp. 5, 94; Reclamation modification standard for actions not Implementation Agreement establishes a 2020a, p. 7). Additional habitat to be covered by the LCR MSCP. But, as 50-year commitment to accomplish created is in the planning stage. As explained above, the habitat along the these tasks. Overall, we expect greater described above, much of these habitats LCR is so degraded that it is unlikely western yellow-billed cuckoo are expected to occur within irrigated that a section 7 consultation under an conservation through these agricultural fields adjacent to river. The adverse modification standard would commitments than through project-by- culmination of these efforts is expected result in mandatory elements (i.e., project evaluation implemented through to maintain, develop and improve reasonable and prudent alternatives) a critical habitat designation. migration, dispersal, sheltering, and within the LCR MSCP planning area. Accordingly, we have determined that foraging habitat; develop Excluding the LCR within the LCR the LCR MSCP area should be excluded metapopulation stability; and protect MSCP planning area would eliminate under subsection 4(b)(2) of the Act against catastrophic losses. some small additional administrative because the benefits of exclusion Additional riparian habitat along the effort and cost during the consultation outweigh the benefits of inclusion and river that can be used by western process pursuant to section 7 of the Act. will not cause the extinction of the yellow-billed cuckoos, mostly as Excluding the LCR MSCP planning area species and we are excluding the entire migratory habitat and also as nesting would continue to help foster Unit 1: CA/AZ–1 (82,138 ac (33,240 habitat, occurring across thousands of development of future HCPs and ha)), Unit 2: CA/AZ–2 (23,589 ac (9,546 acres (hectares), will collectively be strengthen our relationship with ha)) and Unit 3: AZ–1 (3,389 ac (1,371 restored, planted, managed, and Arizona, California, and Nevada ha)) that occur in the LCR MSCP maintained on NWRs (Cibola, Imperial, permittees and stakeholders, planning area along the Colorado River and Bill Williams River), Federal lands eliminating regulatory uncertainty and Bill Williams River from the final (NPS and BLM), and tribal lands associated with permittees and critical habitat designation. (Colorado River Indians Tribes, Fort stakeholders. Excluding the LCR MSCP Mohave Tribe, Cocopah Tribe, planning area eliminates any possible Unit 11 (AZ–9A and AZ–9B) Horseshoe Chemehuevi Tribe, and Fort Yuma risk to water storage, delivery, diversion Dam—Salt River Project Horseshoe (Quechan) Tribe) along the LCR within and hydroelectric production to Bartlett HCP the area covered by the LCR MSCP. Arizona, California, and Nevada, and We identified 3,974 ac (1,608 ha) This HCP involved public therefore significant potential economic within Unit 11 as proposed critical participation through public notices and costs due to a critical habitat habitat in and adjacent to the water comment periods associated with the designation. We have therefore storage area of Horseshoe Reservoir and NEPA process prior to being approved. concluded that the benefits to the approximately 4 mi (6 km) downstream Additionally, this HCP is one of the western yellow-billed cuckoo and its from the final designation. The largest HCPs in the country, with an habitat as result of the improvement, Horseshoe Reservoir and Bartlett Dam extensive list of stakeholders and maintenance, and management are part of the Salt River Project (SRP) permittees from California, Arizona, and activities attributed to the LCR MSCP, constructed by Reclamation. The SRP Nevada that took about a decade to and those additional efforts conducted was part of a Federal action started in complete. Therefore, managing agencies, by NWRs, Tribes, and other land 1917 to construct irrigation facilities States, counties, cities, and other managers, outweigh those that would along the Salt and Verde River in stakeholders are aware of the result from the addition of a critical Maricopa and Gila Counties, Arizona. importance of the LCR for the western habitat designation. We have therefore Lands surrounding the reservoir and yellow-billed cuckoo. For these reasons, excluded these lands from the final stream are managed by the Tonto although we have determined that critical habitat designation pursuant to National Forest. Horseshoe Reservoir designation of critical habitat along the section 4(b)(2) of the Act. facilities were completed in 1945 and LCR MSCP planning area would provide management and operation of the some additional educational benefit, Exclusion Will Not Result in Extinction facilities was turned over to two much of this is already occurring of the Species—Lower Colorado River entities: Salt River Project Agricultural through the LCR MSCP. Multi-Species Conservation Plan (LCR Improvement and Power District (a Covered activities under the LCR MSCP) political subdivision of the State of MSCP are not the only possible impacts We have determined that exclusion of Arizona) and the Salt River Valley to western yellow-billed cuckoo habitat the Colorado River within the LCR Water Users’ Association (a private

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corporation). The umbrella name for of additional occupied southwestern It is estimated that between 60 to 450 these two entities is also referred to as willow flycatcher and western yellow- ac (24 to 182 ha) of western yellow- the Salt River Project (SRP), and these billed cuckoo habitat at Horseshoe Lake billed cuckoo nesting habitat will occur two entities have the authority to care (SRP 2008, p. ES–5). On-site and off-site annually within the high water mark of for, operate, and maintain all project minimization and mitigation measures Horseshoe Lake over the 50-year permit facilities including Horseshoe and are identical for both species (SRP 2008, period of this HCP (SRP 2008, p. 120). Bartlett Dams. In 2002, the listed p. 169). Under the Horseshoe and The annual average of western yellow- southwestern willow flycatcher was Bartlett Dam HCP, SRP owns and billed cuckoo habitat estimated to occur discovered nesting in trees on the manages the Gila River mitigation within the lake is 260 ac (105 ha) (SRP Horseshoe lakebed and downstream of properties near Fort Thomas in Unit 22 2008, p. 120). In total, the upper limit Horseshoe Dam along the Verde River (AZ–20; Gila River 1). We identified of occupied western yellow-billed (SRP 2008, p. 6). As a result, SRP began these properties as critical habitat, but cuckoo habitat addressed by the HCP is discussions with the Service about because SRP supports including them as 400 ac (162 ha) (SRP 2008, pp. 134– developing a HCP, with the critical habitat, we did not consider 135). southwestern willow flycatcher being a them for exclusion (SRP 2014, entire). The 50-year Horseshoe Bartlett HCP primary focus of the HCP. Because the SRP established an irrevocable trust to conservation strategy focuses primarily habitat managed for southwestern fund this HCP in January 2011, with on the protection and management of willow flycatchers is also used by approximately $6.0M to support the southwestern willow flycatcher and nesting and foraging western yellow- estimated $300,000 on average annual western yellow-billed cuckoo habitat billed cuckoo, separate habitat expenditures over the life of the permit within the Horseshoe Lake conservation mitigation requirements for the western and in perpetuity costs for some of the space through modified dam operations; yellow-billed cuckoo were not mitigation obligations (SRP 2019a, p. acquisition and management of habitat identified in the HCP. Because SRP 25). outside of Horseshoe Lake; and the operates Horseshoe and Bartlett Dams The action area, as described in the implementation of measures to conserve on Federal lands within Tonto National Horseshoe Bartlett HCP, prepared for Verde River water. SRP will modify dam Forest, the Service issued an incidental SRP by ERO Resources Corporation operations to make western yellow- take permit to SRP under section (SRP 2008, entire), extends farther from billed cuckoo habitat available earlier in 10(a)(1)(B) of the Act in 2008. the location of these dams to areas the nesting season and to maintain riparian vegetation at higher elevations The HCP is being properly where the impacts of water storage and implemented and identifies the within the conservation space whenever delivery may occur because of the southwestern willow flycatcher and the possible. SRP acquired a 150 ac (61 ha) impacts to other species caused by western yellow-billed cuckoo as covered and a 55 ac (22 ha) parcel along the water regulation. Specific southwestern species, and impacts to nesting habitat upper Gila River near Fort Thomas (SRP willow flycatcher-related impacts were and breeding attempts from raising and 2019a, p. 14). SRP’s water supply only identified within the high water lowering of the water stored behind protection program will focus on special mark of the Horseshoe Lake Horseshoe Dam are covered activities projects to specifically benefit conservation space between 2,026 ft for the duration of the permit, thereby mitigation habitat such as ground water (618 m) in elevation and Horseshoe meeting criteria 1 and 2 above for testing and modeling in the vicinity of Dam. The area within Horseshoe Lake is consideration for exclusion (see Private mitigation lands, development and or Other Non-Federal Conservation Federal land managed by the USFS and support of instream flow water rights, Plans Related to Permits Under Section Reclamation, and SRP maintain interest and research on the relationship 10 of the Act). The biological goals of in water management of the lake. A tri- between hydrology, habitat, and covered the HCP will be achieved with the party agreement between SRP, USFS, species under the HCP. following measures: (1) Managing water and Reclamation establishes a Ongoing maintenance on mitigation levels in Horseshoe Lake to the extent framework to maintain these water properties include year-round perimeter practicable to support tall dense storage areas for their intended purpose. fence patrolling and repair; and vegetation at the upper end of the lake The Tonto National Forest continues to removing nonnative plants, kochia for southwestern willow flycatcher and manage this area for recreation and (Kochia scoparia) and Russian thistle western yellow-billed cuckoos; and (2) other public land uses (SRP 2008, p. 16). (Salsola tragus); pruning salt cedar acquiring and managing southwestern Periodic changes in the level of the limbs from fence lines and roads; and, willow flycatcher and western yellow- lake water of the Horseshoe Lake patrolling and management of trespass billed cuckoo habitat along rivers in conservation space due to dam cattle (SRP 2019a, pp. 15–16). SRP is central Arizona to provide a diversity of operations and water storage can result engaged in substantial and ongoing geographic locations with habitat like in the establishment and maintenance of watershed management efforts to Horseshoe Lake (SRP 2008, pp. ES–4, 9). nesting western yellow-billed cuckoo maintain and improve stream flows, These measures meet criteria 3 above for habitat. This is because western yellow- which benefit all main-stem species. exclusion under Private or Other Non- billed cuckoos nest or otherwise use These watershed protection efforts Federal Conservation Plans Related to vegetation that grows in the dry lakebed include 25 different actions in 2018 Permits Under Section 10 of the Act. within the conservation space. Rising (SRP 2019a, pp. 16–24). SRP is actively Optimum operation of Horseshoe and water levels or excessive drying can protecting in-stream flow through Bartlett is predicted to periodically cause temporary losses and administrative and legal efforts, public result in the unavailability, unavailability of this nesting habitat. outreach and education, funding modification, or loss of up to 200 ac (81 The amount and timing of water stored research and monitoring, and protection ha) of occupied southwestern willow in Horseshoe Lake can vary widely from of future water supplies for mitigation flycatcher and western yellow-billed year-to-year because of the relatively lands. cuckoo habitat on average. If small amount of water storage space in The issuance of the Horseshoe Bartlett circumstances change, adaptive Horseshoe Lake, the erratic nature of HCP permit was based upon the management will be implemented to precipitation and run-off, and the arid persistence of varying degrees of address impacts on up to 200 ac (81 ha) nature of the Sonoran Desert. occupied nesting southwestern willow

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flycatcher habitat within the Horseshoe As a result, because of the conservation critical habitat. The importance of Lake conservation space (under full associated with implementing the HCP, Horseshoe Lake for conservation of the operation of Horseshoe and Bartlett western yellow-billed cuckoo breeding western yellow-billed cuckoo, its Dams) that, along with other areas could areas occurring within the Horseshoe importance to the Verde River, and to reach breeding and habitat-related goals Lake conservation space, and the population of western yellow-billed established in the 2002 Southwestern supporting USFS management, we have cuckoos in the State of Arizona has Willow Flycatcher Recovery Plan. determined that these incremental already been realized by managing Although a recovery plan has not been benefits of a critical habitat designation agencies, including the public, State and developed for western yellow-billed are minimized. Formal consultations local governments, and Federal cuckoo, the persistence of habitat within will likely result in only discretionary agencies. the Horseshoe Lake conservation space conservation recommendations due to Benefits of Exclusion—Horseshoe and and other areas upstream and existing appropriate management; Bartlett Dams HCP downstream on the Verde River have therefore we have determined that there benefited breeding western yellow- is a low probability of mandatory The benefits of excluding the area billed cuckoos. elements (i.e., reasonable and prudent within the high-water mark (below an alternatives) arising from formal section elevation of 2,026 ft (618 m) of Benefits of Inclusion—Horseshoe and 7 consultations evaluating western Horseshoe Lake from being designated Bartlett Dams HCP yellow-billed cuckoo critical habitat at as critical habitat are considerable, and As discussed above under Effects of Horseshoe Lake. include the conservation measures Critical Habitat Designation Section 7 Another important benefit of described above and those associated Consultation, Federal agencies, in including lands in a critical habitat with implementing conservation consultation with the Service, must designation is that the designation can through enhancing and developing ensure that their actions are not likely serve to educate landowners, agencies, partnerships. to jeopardize the continued existence of tribes, and the public regarding the The Horseshoe Bartlett HCP has and any listed species or result in the potential conservation value of an area, will continue to help generate important destruction or adverse modification of and may help focus conservation efforts status and trend information and any designated critical habitat of such on areas of high conservation value for conservation toward western yellow- species. The difference in the outcomes certain species. Any information about billed cuckoo recovery. SRP will of the jeopardy analysis and the adverse the western yellow-billed cuckoo that continue to modify dam operations to modification analysis represents the reaches a wide audience, including make western yellow-billed cuckoo regulatory benefit and costs of critical parties engaged in conservation habitat available earlier in the nesting habitat. A critical habitat designation activities, is valuable. The designation season, manage 200 ac (81 ac) of habitat requires Federal agencies to consult on of critical habitat may also affect the for the western yellow-billed cuckoo, whether their activity would destroy or implementation of Federal laws, such as and implement water protection adversely modify critical habitat to the the Clean Water Act. These laws analyze programs on the Verde River. In point where recovery could not be the potential for projects to significantly addition to those specific western achieved. affect the environment. Critical habitat yellow-billed cuckoo conservation The Horseshoe Lake area is occupied may signal the presence of sensitive actions, the development and by western yellow-billed cuckoos and, habitat that could otherwise be missed implementation of this HCP provides although western yellow-billed cuckoos in the review process for these other regular monitoring of western yellow- were not listed at the time the section environmental laws. billed cuckoo habitat, distribution, and 7 consultation for southwestern willow We have determined that there would abundance over the 50-year permit at flycatchers was conducted, effects to be little additional educational and Horseshoe Lake. SRP is currently western yellow-billed cuckoos were informational benefit gained from implementing innovative monitoring of evaluated as part of the HCP permitting including Horseshoe Lake within the riparian habitat abundance and western process. There may be some minor designation, because this area is well yellow-billed cuckoo habitat suitability benefits by the designation of critical known as an important area for western through satellite image-based models habitat within Horseshoe Lake, yellow-billed cuckoo management and (Hatten and Paradzick 2003, entire; SRP primarily because of the additional recovery. For example, the Horseshoe 2012a, pp. 13–14). review required by USFS management Bartlett HCP was developed over Because of the importance of the of the area. Not only does the USFS multiple years and was completed in Horseshoe Lake conservation space for manage recreation, access, land use, and 2008; and the Horseshoe Lake area was water storage, there is no expectation wildfire suppression and management proposed as southwestern willow that any considerable development or activities, USFS also ensures that there flycatcher critical habitat in 2004 and changes to the landscape would result is no cattle grazing, or road and camping excluded in 2005, and proposed as in reducing the overall water storage developments; recreation activities at western yellow-billed cuckoo habitat in space, and therefore the overall ability the lake are mostly focused on fishing. 2014 and 2020. Additionally, since the to develop riparian vegetation. These USFS management actions have early 2000s, Horseshoe Lake Horseshoe Dam operates in a way that resulted in conservation of western southwestern willow flycatchers and continues moves water out of the yellow-billed cuckoo habitat since the western yellow-billed cuckoos have reservoir downstream to Bartlett Lake listing of the southwestern willow been discussed by management agencies and canals in order to continuously flycatcher in 1995 within the while meeting to discuss management create water storage conservation space, conservation space of Horseshoe Lake. issues occurring in the area for two and therefore area for western yellow- Additionally, because the purpose of the species (western yellow-billed cuckoos billed cuckoo habitat to be maintained. conservation space of Horseshoe Lake is as a candidate species). Consequently, Constant lake levels, which are not the to store water, it prevents significant we have determined that the operational condition at Horseshoe Lake land and water altering actions, such as informational benefits have already for water storage, will not create or the development of permanent occurred through past actions even maintain abundant western yellow- structures within this open space area. though this area is not designated as billed cuckoo habitat. On the contrary,

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dynamic lake levels that mimic the project-by-project, section 7 and conserve western yellow-billed function of flooding on river systems are consultations. For example, soon after cuckoo habitat. essential for creating habitat conditions completing the Roosevelt HCP, we The benefits of designating critical needed by nesting western yellow-billed partnered with SRP and its stakeholders habitat for the western yellow-billed cuckoos within Horseshoe Lake. to develop the Horseshoe and Bartlett cuckoo at Horseshoe Lake are relatively Not excluding the areas within Dam HCP where the western yellow- low in comparison to the benefits of Horseshoe Bartlett HCP could be a billed cuckoo conservation was a key exclusion. We find that including disincentive for other entities component. The benefits of excluding Horseshoe Lake would result in very contemplating partnerships, as it would lands within the Horseshoe and Bartlett minimal, if any additional benefits to be perceived as a way for the Service to Dam HCP area from critical habitat the western yellow-billed cuckoo, impose additional regulatory burdens designation include recognizing the because Horseshoe Dam operations will once conservation strategies have value of conservation benefits continue to foster the maintenance, already been agreed to. Private entities associated with HCP actions; development, and necessary recycling of are motivated to work with the Service encouraging actions that benefit habitat for the western yellow-billed collaboratively to develop voluntary multiple species; encouraging local cuckoo in the long-term due to the HCPs because of the regulatory certainty participation in development of new dynamic nature of water storage and provided by an incidental take permit HCPs; and facilitating the cooperative delivery. USFS management fosters the under section 10(a)(1)(B) of the Act with activities provided by the Service to presence of western yellow-billed the ‘‘No Surprises’’ assurances. This landowners, communities, and counties cuckoo habitat, and there is virtually no collaboration often provides greater in return for their voluntary adoption of risk of changes to the landscape within conservation benefits than could be the HCP. Concerns over perceived the Horseshoe Lake conservation space, achieved through strictly regulatory added regulation potentially imposed by based on the track record of successful approaches, such as critical habitat critical habitat could harm this habitat maintenance for western yellow- designation. The conservation benefits collaborative relationship. billed cuckoos and southwestern willow resulting from this collaborative Another benefit of excluding flycatchers. approach are built upon a foundation of Horseshoe Bartlett HCP area from The benefits of excluding Horseshoe mutual trust and understanding. It takes critical habitat includes a small Lake from inclusion as critical habitat considerable time and effort to establish reduction in administrative costs for are considerable and varied. Excluding this foundation of mutual trust and Federal agencies associated with Horseshoe Lake will strengthen our understanding. Excluding this area from engaging in activities within the critical partnership with Horseshoe Bartlett critical habitat would help promote and habitat portion of section 7 HCP permittees and stakeholders and honor that trust by providing greater consultations. Administrative costs potentially help foster development of certainty for permittees that once include time spent in meetings, future HCPs. Excluding Horseshoe Lake appropriate conservation measures have preparing letters and biological also eliminates regulatory uncertainty been agreed to and consulted on for the assessments, and in the case of formal associated with the permittees HCP and western yellow-billed cuckoo that consultations, the development of the the operation of Horseshoe and Bartlett additional consultation will not be critical habitat component of a Dams for water storage and flood necessary. Working together with SRP biological opinion. However, because control. The conservation measures and Reclamation, USFS management the western yellow-billed cuckoo occurs being implemented by the Horseshoe has continued to foster the maintenance at Horseshoe Lake during the breeding and Bartlett Dam HCP are considerable and development of western yellow- season, consultations evaluating and include acquisition and billed cuckoo habitat through land jeopardy to the western yellow-billed management of western yellow-billed management actions that protect habitat cuckoo would be expected to occur cuckoo habitat, modifications of and reduce habitat stressors. The regardless of a critical habitat Horseshoe Dam operations to facilitate majority of USFS standards and designation, and those costs to perform the persistence of western yellow-billed guidelines in the Tonto National the additional analysis are not expected cuckoo habitat, and long-term Forest’s Land Management Resource to be significant. monitoring of western yellow-billed Plan would benefit the western yellow- cuckoo habitat and territories. These Benefits of Exclusion Outweigh the billed cuckoo. conservation measures will result in Through the development of the Benefits of Inclusion—Horseshoe greater western yellow-billed cuckoo Horseshoe Bartlett HCP, we have Bartlett Dams HCP conservation benefits than what could generated additional partnerships with We have determined that the benefits be accomplished from a project-by- SRP and its stakeholders by developing of exclusion of the conservation space of project evaluation through the collaborative conservation strategies for Horseshoe Bartlett HCP below 2,026 ft incremental benefits of a critical habitat the western yellow-billed cuckoo and (618 m) of Horseshoe Lake from the designation. Excluding Horseshoe Lake the habitat upon which it depends for designation of western yellow-billed will also eliminate some additional breeding, sheltering, foraging, migrating, cuckoo critical habitat on Federal lands administrative effort and cost during the and dispersing. The strategies within surrounding the lake managed by the consultation process pursuant to section the HCP seek to achieve conservation USFS, as identified in the Horseshoe 7 of the Act. goals for the western yellow-billed Bartlett HCP, outweigh the benefits of After weighing the benefits of cuckoo and its habitat, and thus can be inclusion as critical habitat. In our including Horseshoe Lake as western of greater conservation benefit than the determination, we considered and yellow-billed cuckoo critical habitat designation of critical habitat, which found that the HCP meets our criteria against the benefit of exclusion, we have does not require specific actions. for exclusion for HCPs (see Private or concluded that the benefits of excluding Continued cooperative relations with Other Non-Federal Conservation Plans the conservation space of Horseshoe SRP and its stakeholders is expected to Related to Permits Under Section 10 of Lake below an elevation 2,026 ft. (618 influence other future partners and lead the Act) and whether the current dam m), underneath the coverage of the to greater conservation than would be operations, management, and Horseshoe Bartlett HCP and with the achieved through multiple site-by-site, conservation efforts protect, maintain support of USFS management, outweigh

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those that would result from designating but could vary annually (SRP 2008, pp. habitat within the perimeter of this area as critical habitat. 134–135). Roosevelt Lake are dependent on how As mentioned below in our evaluation Accordingly, we have determined that and when the lake recedes due to the of SRP’s Roosevelt HCP, SRP requested the critical habitat within the Salt River amount of water in-flow, and that their western yellow-billed cuckoo Project Horseshoe Bartlett HCP planning subsequent storage capacity and mitigation property along the upper Gila area should be excluded from the final delivery needs caused by Roosevelt Dam River purchased as part of the measures designation because the benefits of operations. The process of western to implement the Horseshoe Bartlett exclusion outweigh the benefits of yellow-billed cuckoo habitat inundation Dams HCP be designated as critical inclusion and will not cause the and drying through raising and lowering habitat. The mitigation property is not extinction of the species. Therefore, we of lake levels can be more exaggerated located within the Horseshoe lakebed, are excluding approximately 397 ac (161 than the dynamic flooding that occurs and may benefit from section 7 ha) of critical habitat from Unit 11: AZ– on free-flowing streams, yet those consultation. Therefore, based upon the 9A (76 ac (31 ha)) and AZ–9B (321 ac dynamic processes within the lake’s comments received from SRP and the (130 ha) from the final critical habitat high water mark mimic those that occur likely benefit of future section 7 designation. on a river and are important to develop consultation, we have honored the Unit 12 (AZ–10) Tonto Creek and Unit and maintain western yellow-billed landowners request not to exclude the 23 (AZ–21) Salt River—Salt River cuckoos and their habitat. Even in high- mitigation properties acquired by SRP Project Roosevelt Lake HCP water years, some high quality riparian along the Gila River from the final habitat would persist at Roosevelt Lake In the revised proposed rule we providing western yellow-billed cuckoo designation as critical habitat for the identified 3,155 ac (1,277 ha) for western yellow-billed cuckoo. nesting opportunities. exclusion from Unit 12 (AZ–10, Tonto The Roosevelt Dam HCP conservation Exclusion Will Not Result in Extinction Creek) and 2,469 ac (1,000 ha) from Unit strategy for western yellow-billed of the Species—Horseshoe and Bartlett 23 (AZ–21, Salt River) from the final cuckoo focuses primarily on: (1) The Dams HCP designation based on the Salt River acquisition and management of western Project (SRP) Roosevelt Dam HCP. SRP yellow-billed cuckoo habitat outside of We find that the exclusion of the obtained a permit under section Roosevelt Lake; (2) the protection of conservation space of Horseshoe Lake 10(a)(1)(B) of the Act in 2003, for the existing habitat within the Roosevelt will not lead to the extinction of the Roosevelt Dam HCP for the operation of Lake conservation space; and (3) the western yellow-billed cuckoo, nor Roosevelt Dam in Gila and Maricopa creation of riparian habitat adjacent to hinder its recovery because Horseshoe Counties, Arizona. Roosevelt Dam was Roosevelt Lake. Western yellow-billed and Bartlett Dam operations combined constructed by Reclamation and turned cuckoo habitat is to be created and with the preservation of open space over to SRP for operation and maintained at Roosevelt Lake (outside of within the lake and USFS land management. The permit authorizes the impacts of water storage) at the management will ensure the long-term incidental take of the federally listed adjacent Rock House Demonstration persistence and protection of western southwestern willow flycatcher caused Area. Also, because the USFS has yellow-billed cuckoo habitat at by the raising and lowering of the water management authority over dry land Horseshoe Lake. In addition, as stored by Roosevelt Dam for a period of within the lakebed, SRP would fund a discussed above under Effects of Critical 50 years. The then-candidate yellow- USFS Forest Protection Officer to patrol Habitat Designation Section 7 billed cuckoo was also covered by the and improve protection of western Consultation, if a Federal action or HCP in anticipation of Federal listing. yellow-billed cuckoo habitat in the permitting occurs, the known presence Critical habitat for this unit is a 12-mi Roosevelt lakebed from adverse of western yellow-billed cuckoos or (19-km)-long continuous segment of activities such as fire ignition from their habitat would require evaluation Tonto Creek ending at the 2,151-foot human neglect, improper vehicle use, under the jeopardy standard of section elevation line, which represents the and other unauthorized actions that 7 of the Act, even absent the designation lakebed of Theodore Roosevelt Lake. could harm habitat. These measures of critical habitat, and thus will protect The extent of the full conservation fulfill the criteria for consideration of the species against extinction. We storage pool at Roosevelt Lake extends exclusion of areas covered by the determined in our intra-Service section to the 2,151-ft (656 m) high elevation Roosevelt Dam HCP (see Private or 7 biological opinion for the issuance of line and represents the area covered by Other Non-Federal Conservation Plans the Horseshoe and Bartlett Dams HCP the Roosevelt Dam HCP. The land Related to Permits Under Section 10 of permit that operations would not result within the Roosevelt Lake perimeter is the Act). in jeopardy. We also determined that Federal land owned and managed by the Because the mitigation measures for while Horseshoe Dam operations will USFS (Tonto National Forest). the already federally listed cause incidental take of western yellow- The Roosevelt Lake western yellow- southwestern willow flycatcher were billed cuckoos and cause fluctuations in billed cuckoo population fluctuates intended to support the then-candidate habitat abundance and quality, reservoir depending on the habitat conditions at western yellow-billed cuckoos as well, operations will also create a dynamic the lake edge and inflows. During lower suitable habitat that fulfilled the needs environment that fosters the long-term water years, flat gradient floodplains of both species were included in the persistence of habitat. It was estimated expose broad areas where riparian selection of mitigation sites in the HCP that during the life of the permit, the vegetation can grow at both the Salt (SRP 2002, p. 132). As part of annual average of southwestern willow River and Tonto Creek inflows. The implementing the HCP, western yellow- flycatcher and western yellow-billed areas at each end of the lake are billed cuckoo properties have been cuckoo habitat estimated to occur estimated to be able to establish as acquired along the lower San Pedro and within the lake is 260 ac (105 ha) (SRP much as 1,250 ac (506 ha) of habitat for Gila River (Middle Gila/San Pedro 2008, p. 120). In total, the upper limit the western yellow-billed cuckoo below Management Unit) and along the Verde of occupied western yellow-billed the high water mark. The cycles of River (SRP 2012b, pp. 17–20). SRP has cuckoo habitat at Horseshoe and Bartlett germination, growth, maintenance, and acquired 1,842 ac (745 ha) of riparian addressed by the HCP is 400 ac (162 ha), loss of western yellow-billed cuckoo habitat and additional buffer lands and

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water rights. They have also developed since the permit was issued, as We have determined that there would 20 ac (8 ha) of western yellow-billed demonstrated by the continued be little educational and informational cuckoo habitat at Rockhouse persistence of both species in habitat benefit gained from including Roosevelt Demonstration Site (not proposed as surrounding Roosevelt Lake. For these Lake within the designation because critical habitat) and funded the USFS reasons and because formal this area is well known as an important employee to help on-the-ground consultations will likely result in only area for southwestern willow flycatcher management for Roosevelt Lake and discretionary conservation and western yellow-billed cuckoo western yellow-billed cuckoo (SRP recommendations due to existing management and recovery. For example, 2012b, pp. 13–20). SRP has collected appropriate management, we have extensive southwestern willow and evaluated information on occupied determined that there is a low flycatcher research has occurred at habitats and population status of probability of mandatory elements (i.e., Roosevelt Lake through much of the late western yellow-billed cuckoos at reasonable and prudent alternatives) 1990s and early 2000s by USGS, Roosevelt Lake and mitigation arising from formal section 7 Reclamation, and AGFD; the Roosevelt properties. consultations that include consideration Dam HCP was developed in 2003; In response to the 2014 proposed and of designated critical habitat for the periodic news articles were published the 2020 revised proposed critical western yellow-billed cuckoo at on the development of the Roosevelt habitat rule, SRP requested that Roosevelt Lake. Dam HCP; and the Roosevelt Lake area Roosevelt Lake, including the Tonto and We have evaluated Roosevelt Lake was proposed as southwestern willow Salt rivers inflows be excluded from Dam operations through flycatcher critical habitat in 2004 and final critical habitat designation, but implementation of the Roosevelt HCP, excluded in 2005 and as western that mitigation properties be designated and considered impacts to western yellow-billed cuckoo critical habitat in as critical habitat. yellow-billed cuckoos and their habitat. 2014. Additionally, since the mid- The conservation strategies in the Benefits of Inclusion—Roosevelt Lake 1990s, SRP, USFS, Reclamation, AGFD, Roosevelt HCP included considerable HCP and the Service have met annually to habitat acquisition to account for habitat discuss the status and ongoing As discussed above under Effects of affected, with commitments for management of the southwestern willow Critical Habitat Designation Section 7 management and monitoring. We flycatcher and western yellow-billed Consultation, Federal agencies, in concluded that Roosevelt Dam cuckoo in the Roosevelt Lake area. consultation with the Service, must operations, while causing incidental Consequently, informational benefits ensure that their actions are not likely take of western yellow-billed cuckoos informing the public and partners about to jeopardize the continued existence of periodically, will support the the value of Roosevelt Lake for both any listed species or result in the development of additional habitat over listed bird species will continue into the destruction or adverse modification of time. Because of the non-jeopardy future. any designated critical habitat of such analysis completed in our section 7 species. The difference in the outcomes consultation, the continued function of Benefits of Exclusion—Roosevelt Lake of the jeopardy analysis and the adverse Roosevelt Lake to establish western HCP modification analysis represents the yellow-billed cuckoo habitat for The benefits of excluding the area regulatory benefit and costs of critical recovery, and the comprehensive within the high-water mark of Roosevelt habitat. A critical habitat designation conservation strategies implemented in Dam from being designated as critical requires Federal agencies to consult on the HCP, we have determined that there habitat are considerable, and include whether their activity would destroy or is a low probability of mandatory the conservation measures described adversely modify critical habitat to the elements (i.e., reasonable and prudent above (land acquisition, management, point where recovery could not be alternatives) arising from formal section and habitat development) and those achieved. 7 consultations that include associated with implementing The Roosevelt Lake area is known to consideration of Roosevelt Dam conservation through enhancing and be occupied by western yellow-billed operations on designated western developing partnerships. cuckoos and has undergone section 7 yellow-billed cuckoo critical habitat at The implementation of the Roosevelt consultation under the jeopardy Roosevelt Lake. HCP has and will continue to help standard related to the Roosevelt Lake Another important benefit of generate important status and trend HCP and USFS actions. There may be designation is that it can serve to information, acquire additional some minor benefits from the educate landowners, agencies, tribes, mitigation lands, and help on-the- designation of critical habitat within and the public regarding the potential ground management of Roosevelt Lake Roosevelt Lake, primarily because it conservation value of an area, and may western yellow-billed cuckoos and their would require the Service and USFS to help focus conservation efforts on areas habitat (SRP 2012b, pp. 15–16). In perform additional review of USFS of high conservation value for certain addition to these specific western management within the exposed portion species. Any information about the yellow-billed cuckoo conservation of the lake bottom through a critical western yellow-billed cuckoo that actions, the development and habitat consultation under section 7 of reaches a wide audience, including implementation of this HCP provides the Act. These USFS management parties engaged in conservation regular monitoring of western yellow- actions are typically limited to activities, is valuable. The designation billed cuckoo habitat, distribution, and recreation management and resource of critical habitat may also inform abundance over the 50-year permit. use because the Salt River Project implementation of some Federal laws Because of the importance of the operates conservation space of such as the Clean Water Act. These laws Roosevelt Lake conservation space for Roosevelt Lake to store water. USFS has analyze the potential for projects to water storage, there is no expectation appropriately managed recreation, significantly affect the environment. that any considerable development or access, land use, and wildfire in a Critical habitat may signal the presence changes to the landscape would result manner that has conserved both of sensitive habitat that could otherwise in reducing the overall water storage southwestern willow flycatcher and be missed in the review process for space, and therefore the overall ability western yellow-billed cuckoo habitat these other environmental laws. to develop riparian vegetation.

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Roosevelt Dam operates in a way that additional partnerships with SRP and the Act). As a result, we weighed the continues to move water out of the its stakeholders by developing benefits of including these lands as reservoir to downstream lakes and collaborative conservation strategies for critical habitat with an operative HCP canals in order to continuously create the western yellow-billed cuckoo and and management by the USFS, and the water storage conservation space at the habitat upon which it depends for same situation without critical habitat. Roosevelt Lake, and therefore area for breeding, sheltering, foraging, migrating, The benefits of designating critical riparian vegetation and western yellow- and dispersing. The strategies within habitat for the western yellow-billed billed cuckoo habitat to grow. The the Roosevelt HCP seek to achieve cuckoo at Roosevelt Lake are relatively dynamic lake levels, similar to river conservation goals for the western low in comparison to the benefits of systems, are important for the creation yellow-billed cuckoo and its habitat, exclusion. We find that including and maintenance of abundant western and will achieve greater conservation Roosevelt Lake as critical habitat would yellow-billed cuckoo habitat at this benefit than the designation of critical result in very minimal, if any, location. habitat and multiple site-by-site, additional benefits to the western Roosevelt Dam operations, project-by-project, section 7 yellow-billed cuckoo. Roosevelt Dam implemented through the HCP permit consultations, which is unlikely to operations will continue to foster the continue to sustain local populations of require specific actions. Continued maintenance, development, and western yellow-billed cuckoo by cooperative relations with SRP and its necessary recycling of habitat for the sustaining suitable habitat for the stakeholders are expected to influence western yellow-billed cuckoo in the species. Western yellow-billed cuckoo other future partners. The benefits of long term due to the dynamic nature of populations have persisted within the excluding lands within the Roosevelt water storage and delivery. USFS high water mark at Roosevelt Lake Lake HCP area from critical habitat management of lands surrounding the throughout increases and decreases in designation include recognizing the lake ensures the maintenance and water storage as well as along streams value of conservation benefits development of western yellow-billed adjacent to Roosevelt Lake (Salt River, associated with HCP actions; cuckoo habitat per the HCP. As a result, Tonto Creek, Pinal Creek, and Cherry encouraging actions that benefit we anticipate that formal section 7 Creek). The expanding and contracting multiple species; encouraging local consultations conducted on critical western yellow-billed cuckoo habitat participation in development of new habitat would only likely result in within the lake combined with dynamic HCPs; and facilitating the cooperative discretionary conservation habitat along adjacent streams support activities provided by the Service to recommendations. the overall western yellow-billed landowners, communities, and counties The benefits of excluding Roosevelt cuckoo population within the Roosevelt in return for their voluntary adoption of Lake from inclusion as critical habitat Lake area. the HCP. Concerns over perceived are considerable. Excluding Roosevelt Failure to exclude Roosevelt Lake added regulation potentially imposed by Lake would continue to help foster could be a disincentive for other entities critical habitat could harm this development of future HCPs and contemplating partnerships, as it would collaborative relationship. strengthen our partnership with be perceived as a way for the Service to Another benefit of excluding Roosevelt HCP permittees and impose additional regulatory burdens Roosevelt Lake from critical habitat stakeholders. Excluding Roosevelt Lake once conservation strategies have includes a small reduction in also eliminates regulatory uncertainty already been agreed to through our administrative costs associated with associated with the permittees’ HCP and permitting process. Private entities are engaging in the critical habitat portion the operation of Roosevelt Dam for motivated to work with the Service of section 7 consultations. water storage and flood control. The collaboratively to develop voluntary Administrative costs include time spent conservation benefits of implementing HCPs because of the regulatory certainty in meetings, preparing letters and the Roosevelt HCP are considerable and provided by an incidental take permit biological assessments, and in the case include significant acquisition and under section 10(a)(1)(B) of the Act with of formal consultations, the management of western yellow-billed the ‘‘No Surprises’’ assurances. This development of the critical habitat cuckoo habitat, creation of western collaboration often provides greater component of a biological opinion. yellow-billed cuckoo habitat adjacent to conservation benefits than could be Roosevelt Lake, on-the-ground achieved through strictly regulatory Benefits of Exclusion Outweigh the protection of western yellow-billed approaches, such as critical habitat Benefits of Inclusion—Roosevelt Lake cuckoo habitat, and long-term designation. The conservation benefits HCP monitoring of western yellow-billed resulting from this collaborative We have determined that the benefits cuckoo habitat and territories. These approach are built upon a foundation of of exclusion of the conservation space of conservation measures are substantial mutual trust and understanding. Roosevelt Lake below 2,151 ft (655 m) and will result in greater western Excluding this area from critical habitat in elevation from the designation of yellow-billed cuckoo conservation will help promote and honor that trust western yellow-billed cuckoo critical benefits than what could be by providing greater certainty for habitat on Federal land managed by the accomplished from a project-by-project permittees that once appropriate USFS, as identified in the Roosevelt evaluation through the incremental conservation measures have been agreed Dam HCP, outweigh the benefits of benefits of a critical habitat designation. to and consulted on for the western inclusion because current dam Also, excluding Roosevelt Lake will yellow-billed cuckoo that additional operations and management, and eliminate some additional, but minimal, consultation will not be necessary. SRP implementation of conservation actions administrative effort and cost during the has proven to be a valuable and maintain, protect, and conserve western consultation process pursuant to section responsible partner to the Service in yellow-billed cuckoo habitat. In our 7 of the Act. leading, innovating, and implementing determination, we considered and After weighing the benefits of large- and small- scale conservation found that the HCP meets our criteria including Roosevelt Lake as western efforts in Arizona. for exclusion for HCPs (see Private or yellow-billed cuckoo critical habitat Through the development of the Other Non-Federal Conservation Plans against the benefit of exclusion, we have Roosevelt Dam HCP, we have generated Related to Permits Under Section 10 of concluded that the benefits of excluding

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the conservation space of Roosevelt USFS management has continued to essential physical or biological features Lake below an elevation 2,151 ft (655 foster the maintenance and that may require special management or m), underneath the coverage of the development of western yellow-billed protection and unoccupied areas that Roosevelt HCP and with the support of cuckoo habitat through land are essential to the conservation of a USFS management, outweigh those that management actions that reduce threats species), without regard to would result from designating this area to the species habitat. We have therefore landownership. While S.O. 3206 as critical habitat. excluded approximately 489 ac (198 ha) provides important direction, it As mentioned above, during from Unit 12 (AZ–10, Tonto Creek) and expressly states that it does not modify development of the western yellow- 2,009 ac (813 ha) from Unit 23 (AZ–21, the Secretaries’ statutory authority. billed cuckoo critical habitat Salt River) from the final critical habitat Unit 7 (AZ–5) Upper Verde River; Unit designation, SRP requested that all of designation. their western yellow-billed cuckoo 9 (AZ–7) Beaver Creek; and Unit 10 mitigation properties purchased before Tribal Lands (AZ–8) Lower Verde River and West the publication of our final critical Several Executive Orders, Secretarial Clear Creek—Yavapai-Apache Nation habitat designation, be designated as Orders, and policies concern working We identified 534 ac (216 ha) of critical habitat. The mitigation with Tribes. These guidance documents critical habitat that occurs on Yavapai- properties are not located within the generally confirm our trust Apache Nation lands within portions of Roosevelt lakebed, and may benefit from responsibilities to Tribes, recognize that the Verde River, Beaver Creek, and West section 7 consultation on their Tribes have sovereign authority to Clear Creek (Unit 7: AZ–5, Upper Verde management. Therefore, based upon the control tribal lands, emphasize the River; Unit 9: AZ–7, Beaver Creek; and comments received from SRP and the importance of developing partnerships Unit 10: AZ–8, Lower Verde River and likely benefit of future section 7 with tribal governments, and direct the West Clear Creek). The Yavapai-Apache consultation, the mitigation properties Service to consult with Tribes on a Nation completed a Southwestern acquired by SRP along the San Pedro, government-to-government basis. Willow Flycatcher Management Plan in Gila, and Verde Rivers are included in A joint Secretarial Order that applies 2005, and updated their plan in 2012 this final designation as western yellow- to both the Service and the National (Yavapai-Apache Nation 2012, entire). billed cuckoo critical habitat. Marine Fisheries Service (NMFS), The plan was originally developed for Secretarial Order 3206, American the southwestern willow flycatcher but Exclusion Will Not Result in Extinction Indian Tribal Rights, Federal–Tribal has been revised to include western of the Species—Roosevelt Lake HCP Trust Responsibilities, and the yellow-billed cuckoo. We find that the exclusion of the Endangered Species Act (June 5, 1997) Prior to the incursion of non-Indians conservation space of Roosevelt Lake (S.O. 3206), is the most comprehensive into their territory, the Yavapai-Apache will not lead to the extinction of the of the various guidance documents Nation notes that their people lived and western yellow-billed cuckoo, nor related to tribal relationships and Act prospered for many centuries along the hinder its recovery because Roosevelt implementation, and it provides the Verde River and its tributaries without Dam operations combined with the most detail directly relevant to the depleting the river system or harming its preservation of open space within the designation of critical habitat. In riparian habitat and the many plant and lake and USFS land management under addition to the general direction animal species it supports (Montgomery the HCP will ensure the long-term discussed above, S.O. 3206 explicitly & Interpreter, PLC 2020, p. 2). Today, persistence and protection of western recognizes the right of Tribes to the Yavapai-Apache Nation Reservation yellow-billed cuckoo habitat at participate fully in the listing process, is only a small portion of lands Roosevelt Lake. In addition, as including designation of critical habitat. considered as historical Yavapai- discussed above under Effects of Critical The Order also states: ‘‘Critical habitat Apache Nation lands and currently Habitat Designation Section 7 shall not be designated in such areas totals a little over 1,800 ac (728 ha) in Consultation, if a Federal action or unless it is determined essential to Arizona. The Verde River and its permitting occurs, the known presence conserve a listed species. In designating tributaries serve as a primary source of of western yellow-billed cuckoos or critical habitat, the Services shall the Nation’s water supply and is integral their habitat would require evaluation evaluate and document the extent to in the preservation of the Nation’s under the jeopardy standard of section which the conservation needs of the values. The Nation has implemented 7 of the Act, even absent the designation listed species can be achieved by strong conservation measures on the of critical habitat, and thus will protect limiting the designation to other lands.’’ Reservation to preserve the Verde River the species against extinction. We In light of this instruction, when we for the benefit of all species and to determined in our intra-Service section undertake a discretionary section 4(b)(2) protect the practices of the Nation. The 7 biological opinion for the issuance of exclusion analysis, we will always Yavapai-Apache Nation is aware of the the Roosevelt HCP permit that, while consider exclusions of tribal lands threats facing the Verde River and Roosevelt Dam operations will cause under section 4(b)(2) of the Act prior to adjacent lands and their impacts on the incidental take due to operations that finalizing a designation of critical riparian habitat and food availability as cause fluctuations in habitat abundance habitat, and will give great weight to well as its suitability for western and quality, reservoir operations also tribal concerns in analyzing the benefits yellow-billed cuckoo nesting, migrating, create a dynamic environment that of exclusion. food, cover, and shelter (Montgomery & fosters the long-term persistence of However, S.O. 3206 does not preclude Interpreter, PLC 2020, p. 2). habitat. It was estimated that during the us from designating tribal lands or The Nation continues to preserve life of the permit, an average amount of waters as critical habitat, nor does it those portions of the Verde River, habitat to support 6 western yellow- state that tribal lands or waters cannot Beaver Creek, and West Clear Creek billed cuckoo territories would be meet the Act’s definition of ‘‘critical under its jurisdiction along with the present throughout the life of the 50- habitat.’’ We are directed by the Act to plants and animals associated with the year permit and even in a worst case identify areas that meet the definition of river. On June 15, 2006, the Nation flood event with maximum water ‘‘critical habitat’’ (i.e., areas occupied at enacted Tribal Resolution No. 46–2006 storage, 22 territories could persist. the time of listing that contain the formally designating a ‘‘Riparian

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Conservation Corridor’’ extending from been directed to avoid construction cuckoo. As described above, even with the center of the River outward for 300 within the river corridor. southwestern willow flycatchers and lateral ft (91 lateral m) on either side of The Yavapai-Apache Nation has western yellow-billed cuckoos occurring the bank full stage of the Verde River conducted continued education, on these tribal lands, the frequency of (Yavapai-Apache Nation 2006, entire; information gathering, and partnering formal section 7 consultations has been Montgomery & Interpreter, 2020 PLC, and emphasized the importance of rare. Projects initiated by Federal pp. 5–6). This resolution essentially protecting the Verde River within tribal agencies in the past were associated codified in Tribal law certain land use youth education programs. The with maintenance of rights-of-way or restrictions and management goals for Yavapai-Apache Nation has also water management such as those the Verde River that had long been in continued to strengthen its partnership initiated by Federal Highway place on the Reservation. Within the with the Service by meeting and Administration or Reclamation. When Riparian Conservation Corridor, those coordinating efforts on the Service’s we review projects addressing the activities that are harmful to the health goals for conservation on the Verde western yellow-billed cuckoo pursuant of the riparian area are discouraged or River. The Nation has committed to to section 7 of the Act in Arizona, we prohibited outright in order to protect cooperatively discussing and examining commonly examine conservation the corridor’s natural habitat and the future projects with the Service that measures associated with the project for animal and plant species that live, could impact the western yellow-billed consistency with strategies described breed, rest, and forage within the cuckoo or its habitat. within the Southwestern Willow corridor, including the western yellow- Benefits of Inclusion—Yavapai-Apache Flycatcher Recovery Plan due to the two billed cuckoo. Nation Tribal Lands species overlapping and using similar The Nation has taken steps to protect habitat. Where there is consistency with western yellow-billed cuckoo habitat As discussed above under Effects of managing habitat and implementing Critical Habitat Designation Section 7 along the Verde River, Beaver Creek, conservation measures recommended in Consultation, Federal agencies, in and West Clear Creek through zoning, the recovery plan, it would be unlikely consultation with the Service, must implementing tribal ordinances and that a consultation would result in a ensure that their actions are not likely code requirements. determination of adverse modification to jeopardize the continued existence of The purpose of the Nation’s of critical habitat. Therefore, when the any listed species or result in the Flycatcher Management Plan as updated threshold for adverse modification is destruction or adverse modification of to include western yellow-billed cuckoo not reached, only additional any designated critical habitat of such is to promote the physical and conservation recommendations could species. The difference in the outcomes biological features that will maintain result out of a section 7 consultation, of the jeopardy analysis and the adverse southwestern willow flycatcher and but such measures would be western yellow-billed cuckoo habitat. modification analysis represents the discretionary on the part of the Federal The strategy of the plan is not to allow regulatory benefit and costs of critical agency. any net loss or permanent impacts to habitat. A critical habitat designation western yellow-billed cuckoo habitat by requires Federal agencies to consult on Another important benefit of implementing measures from the whether their activity would destroy or including lands in a critical habitat Service’s Southwestern Willow adversely modify critical habitat to the designation is that the designation can Flycatcher Recovery Plan. Recreation point where recovery could not be serve to inform and educate landowners and access to riparian areas will be achieved. and the public regarding the potential managed to ensure no net loss of We have conducted informal conservation value of an area, and it habitat. Fire within riparian areas will consultations with agencies may help focus management efforts on be suppressed and vegetation managed implementing actions on tribal lands, areas of high value for certain species. by reducing fire risks. The Nation will provided tribes technical assistance on Any information about the western cooperate with the Service to monitor project implementation, and the Corps yellow-billed cuckoo that reaches a and survey habitat for breeding and has coordinated with tribes and pueblos wide audience, including parties migrating western yellow-billed on projects within the area. However, engaged in conservation activities, is cuckoos, conduct research, and manage overall since listing of the southwestern valuable. However, the southwestern habitat. willow flycatcher as endangered in 1995 willow flycatcher has been listed since Since 2005, the Yavapai-Apache and the western yellow-billed cuckoo in 1995, and western yellow-billed cuckoo Nation has concluded that through 2014 as threatened, formal section 7 has been a candidate species since 2001. implementation of their plan, there has consultations have been rare on tribal As a result the Yavapai-Apache Nation been no net loss of western yellow- lands. Because of how tribes and has been and is currently working with billed cuckoo habitat. Since 2005, no pueblos have chosen to manage and the Service to conserve southwestern cattle grazing has occurred within the conserve their lands and the lack of past willow flycatcher and western yellow- Verde River corridor. If any future section 7 consultation history, we do billed cuckoo habitat, participate in grazing is permitted, it will be not anticipate a noticeable increase in working groups, and exchange conducted appropriately with fences, section 7 consultations in the future, nor management information. These and in a manner to protect western that such consultations would regulatory developments already ensure yellow-billed cuckoo habitat quality. significantly change the current that the Yavapai-Apache Nation and The Nation has also installed management of western yellow-billed others are fully aware of the importance measurement devices to evaluate the cuckoos or its habitat. Therefore, the of listed riparian bird habitat and depth of the Verde River groundwater in effect of a critical habitat designation on conservation. Given that these order to address river flows necessary to these lands is minimized. regulatory actions have already maintain or improve the riparian habitat Were we to designate critical habitat informed the public about the value of quality (Montgomery & Interpreter 2020 on these tribal lands, our section 7 these areas and helped to focus PLC pp. 7–8). Also, no new access roads consultation history indicates that there potential conservation actions, the or recreation sites have been created. may be some, but few, regulatory educational benefits from designating Similarly, any new housing areas have benefits to the western yellow-billed critical habitat would be small.

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Another possible benefit of the yellow-billed cuckoo and its habitat; western yellow-billed cuckoo habitat by designation of critical habitat is that it and (3) the maintenance of effective the Yavapai-Apache Nation likely may also affect the implementation of partnerships with the Tribe and working accomplish greater conservation than Federal laws, such as the Clean Water in collaboration and cooperation to would be available through the Act. These laws require analysis of the promote additional conservation of the implementation of a designation of potential for proposed projects to western yellow-billed cuckoo and their critical habitat on a project-by-project significantly affect the environment. habitat. basis. Critical habitat may signal the presence During the development of the The designation of critical habitat on of sensitive habitat that could otherwise western yellow-billed cuckoo critical Yavapai-Apache Nation lands would be be missed in the review process for habitat proposal (and coordination for expected to have an adverse impact on these other environmental laws. other critical habitat proposals) and our working relationship with the Finally, there is the possible benefit other efforts such as implementing Nation. The designation of critical that additional funding could be measures identified in the Southwestern habitat would be viewed as an intrusion generated for habitat improvement by an Willow Flycatcher Recovery Plan and impact their sovereign abilities to area being designated as critical habitat. (applicable to western yellow-billed manage natural resources in accordance Some funding sources may rank a cuckoos in central Arizona), we have with their own policies, customs, and project higher if the area is designated met and communicated with the laws. These impacts include, but are not as critical habitat. Tribes or pueblos Yavapai-Apache Nation to discuss how limited to: (1) Interfering with the often seek additional sources of funding they might be affected by the regulations sovereign and constitutional rights of in order to conduct wildlife-related associated with listing and designating the Nation to protect and control its conservation activities. Therefore, critical habitat for the western yellow- own resources on the Reservation; (2) having an area designated as critical billed cuckoo. As such, we have undermining the positive and effective habitat could improve the chances of established a beneficial relationship to government-to-government relationship receiving funding for southwestern support western yellow-billed cuckoo between the Nation and the Service—a willow flycatcher and western yellow- conservation. As part of our relationship that serves to protect billed cuckoo habitat-related projects. relationship, we have provided federally listed species and their habitat; However, areas where nesting, technical assistance to the Yavapai- and (3) hampering or confusing the migrating, dispersing, or foraging Apache Nation to develop measures to Nation’s own long-standing protections western yellow-billed cuckoos occur, as conserve the western yellow-billed for the Verde River and its habitat. The is the case here, may also provide cuckoo and their habitat on their lands. perceived restrictions of a critical benefits when projects are evaluated for These measures are contained within habitat designation could have a receipt of funding. the management plan developed by the damaging effect on coordination efforts, Therefore, because of the Yavapai-Apache Nation. We have possibly preventing actions that might development and implementation of a determined that the Yavapai-Apache maintain, improve, or restore habitat for management plan, habitat conservation, Nation should be the governmental the western yellow-billed cuckoo and rare initiation of formal section 7 entity to manage and promote western other species. For these reasons, we consultations, the occurrence of yellow-billed cuckoo conservation on have determined that our working breeding and migrant western yellow- their lands. During our coordination relationships with the Nation would be billed cuckoos on tribal lands, and efforts with the Yavapai-Apache Nation, better maintained if we excluded their overall coordination with tribes on we recognized and endorsed their lands from the designation of western western yellow-billed cuckoo related fundamental right to provide for tribal yellow-billed cuckoo critical habitat. We issues, it is expected that there may be resource management activities, view this as a substantial benefit since some, but limited, benefits from including those relating to riparian we have developed a cooperative including these tribal lands in a western habitat. working relationship with the Yavapai- yellow-billed cuckoo critical habitat As stated above, the Yavapai-Apache Apache Nation for the mutual benefit of designation. The principal benefit of Nation has developed and implemented the western yellow-billed cuckoo and any designated critical habitat is that a management plan specific to western other endangered and threatened activities in and affecting such habitat yellow-billed cuckoo and its habitat. species. require consultation under section 7 of The Yavapai-Apache Nation has In addition, we anticipate future the Act. Such consultation would expressed that their lands, and management plans to include additional ensure that adequate protection is specifically riparian habitat, are conservation efforts for other listed provided to avoid destruction or adverse connected to their cultural and religious species and their habitats may be modification of critical habitat. beliefs, and as a result they have a hampered if critical habitat is strong commitment and reverence designated on tribal lands being Benefits of Exclusion—Yavapai-Apache toward its stewardship and conservation managed for sensitive species Nation Tribal Lands and have common goals with the conservation. We have determined that The benefits of excluding the Service on species and habitat many other tribes and pueblos are Yavapai-Apache Nation lands from conservation. The management plan willing to work cooperatively with us designated critical habitat include: (1) identifies actions to maintain, improve, and others to benefit other listed and Our deference to the Tribe to develop and preserve riparian habitat. The sensitive species, but only if they view and implement conservation and Yavapai-Apache Nation has also the relationship as mutually beneficial. natural resource management plans for implemented a review processes for Consequently, the development of their lands and resources, which activities occurring in riparian zones future voluntarily management actions includes benefits to the western yellow- and restricted or limited certain actions for other listed species may be billed cuckoo and its habitat that might that would impact resources from compromised if these tribal lands are not otherwise occur; (2) the continuance occurring or implement conservation designated as critical habitat for the and strengthening of our effective measures to minimize, or eliminate western yellow-billed cuckoo. Thus, a working relationships with the Tribe to adverse impacts. Overall, the benefit of excluding these lands would promote the conservation of the western commitments toward management of be future conservation efforts that

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would benefit other listed or sensitive designated as critical habitat. As a Unit 22 (AZ–20) Gila River 1; Unit 27 species. result, we have determined that the (AZ–25) Aravaipa Creek; Unit 28 (AZ– 26) Gila River 2; and Unit 17 (AZ–15) Benefits of Exclusion Outweigh the benefits of excluding these tribal lands Benefits of Inclusion—Yavapai-Apache from critical habitat designation Lower San Pedro and Gila Rivers—San Nation Tribal Lands outweigh the benefits of including these Carlos Apache and Gila River Indian areas. Community The benefits of including Yavapai- Apache Nation tribal lands in the Exclusion Will Not Result in We identified approximately 12,533 ac (5,646 ha) for the western yellow- critical habitat designation are limited Extinction—Yavapai-Apache Nation billed cuckoo as critical habitat on San to the incremental benefits gained Tribal Lands through the regulatory requirement to Carlos Apache Tribe lands within Pinal, consult under section 7 and We have determined that exclusion of Gila, and Graham Counties, Arizona in consideration of the need to avoid the Yavapai-Apache Nation tribal lands Unit 22 (10,183 ac (4,121 ha)), Unit 28 adverse modification of critical habitat, from the critical habitat designation will (1,436 ac (581 ha)), and Unit 17 (729 ac agency and educational awareness, not result in the extinction of the (295 ha)). As a results of comments and potential additional grant funding, and western yellow-billed cuckoo. We base coordinating with the Tribe, we the implementation of other law and this determination on several points. received additional land ownership information that identified additional regulations. However, due to the rarity Firstly, as discussed above under Effects lands owned by the San Carlos Apache. of Federal actions resulting in formal of Critical Habitat Designation Section 7 section 7 consultations, the benefits of The revised proposed designation Consultation, if a Federal action or should have identified an additional a critical habitat designation are permitting occurs, the known presence minimized. In addition, the benefits of 185 ac (75 ha) along the Lower San of western yellow-billed cuckoos or Pedro River between Aravaipa Creek consultation are further minimized their habitat would require evaluation because any conservation measures and the Gila River confluence in Unit 17 under the jeopardy standard of section which may have resulted from totaling 914 ac (370 ha). However, due 7 of the Act, even absent the designation consultation are already provided additional revisions of the area through other mechanisms, such as (1) of critical habitat, and thus will protect considered as critical habitat between the conservation benefits to the western the species against extinction. Secondly, the revised proposed rule and this final yellow-billed cuckoo and their habitat the Yavapai-Apache Nation has a long designation, we removed areas upstream from implementation of the Yavapai- term record of conserving species and of Prophyry Gulch on the Gila River Apache Nation management plans; and habitat and is committed to protecting from Unit 17. Therefore, the total area (2) the maintenance of effective and managing southwestern willow of Tribal lands we are excluding in Unit collaboration and cooperation to flycatcher and western yellow-billed 17 is approximately 445 ac (184 ha). promote the conservation of the cuckoo habitat according to their The San Carlos Reservoir and southwestern willow flycatcher and cultural history, management plans, and surrounding land up to elevation 2,535 western yellow-billed cuckoo and their natural resource management objectives. ft (773 m)) is Federal land owned by the habitat. We have determined that this Bureau of Indian Affairs (BIA), which Because the Yavapai-Apache Nation commitment accomplishes greater owns and operates the reservoir and has developed a specific management conservation than would be available Coolidge Dam site. The facilities are plan, has been involved with the critical through the implementation of a operated for storage and delivery of habitat designation process, and is designation of critical habitat on a irrigation water as part of the Central Arizona Water Project. The dam and aware of the value of their lands for project-by-project basis. With the reservoir are surrounded by San Carlos western yellow-billed cuckoo implementation of these conservation conservation, the educational benefits of Apache tribal lands. In our revised measures, based upon strategies a western yellow-billed cuckoo critical proposed rule, we misidentified the BIA habitat designation are also minimized. developed in the management plan, we lands as San Carlos Apache tribal lands. By allowing the Yavapai-Apache have concluded that this exclusion from This ownership issue has been corrected Nation to implement its own resource critical habitat will not result in the in this final rule. conservation programs it gives the extinction of the western yellow-billed Unit 22 (Gila River 1) and Unit 28 Nation the opportunity to manage their cuckoo. Accordingly, we have (Gila River 2) are located upstream of natural resources to benefit riparian determined that the benefits of San Carlos Reservoir on the Gila River habitat for the western yellow-billed excluding the Yavapai-Apache Nation where it enter the reservoir and near cuckoo, without the perception of tribal lands outweighs the benefits of where Eagle Creek enters the river Federal Government intrusion. This their inclusion, and the exclusion of respectively. Unit 17 (Lower San Pedro philosophy is also consistent with our these lands from the designation will and Gila River) is located downstream published policies on Native American not result in the extinction of the of San Carlos Reservoir. Unit 27 natural resource management. The species. As a result, we are excluding (Aravaipa Creek) flows into the lower exclusion of these areas will likely also Yavapai-Apache Nation tribal lands San Pedro River. When at full capacity provide additional benefits to the within Unit 7 (AZ–5) Upper Verde River the San Carlos Reservoir contains western yellow-billed cuckoo and other (191 ac (77 ha)); Unit 9 (AZ–7) Beaver 867,400 ac-ft (1.07 cubic km) of water, listed species that would not otherwise Creek (3 ac (1 ha)); and Unit 10 (AZ–8) making it one of the largest lakes in be available without the Service’s Lower Verde River and West Clear Arizona. However, due to water demand maintaining a cooperative working Creek (43 ac (17 ha)) from this final and the seasonal, flashy nature of river relationships with the Yavapai-Apache designation. flows into the reservoir result in the lake Nation. The actions taken by the Nation rarely fills and its water levels fluctuate to manage and protect habitat needed dramatically (LCR MSCP 2004, p. 12). for western yellow-billed cuckoo are Total dry-up of the reservoir has been above those conservation measures recorded over 21 times with two of which may be required if the area was those times occurring in the last five

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years (LCR MSCP 2004, p. 12; 387). These small parcels are likely records show that no other formal Reclamation 2020b, p. 2). Chronic within the home range of foraging and consultation on western yellow-billed drought since 1999 had also severely breeding western yellow-billed cuckoos. cuckoos has occurred for actions reduced inflows and reduced stored The San Carlos Apache Tribe associated with San Carlos Reservoir or water available to downstream irrigators Recreation and Wildlife Department water operations. As described above, (LCR MSCP 2004, p. 13). Despite these (SCATRWD) administers recreational even with western yellow-billed extreme water fluctuations, normal use permits for nontribal members on cuckoos occurring throughout this water management operations, similar San Carlos Apache tribal lands portion of the Gila River, the frequency to what occurs at other reservoirs including the San Carlos lake bottom of formal section 7 consultations for managed for irrigation and other water (SCATRWD 2009, entire). The western yellow-billed cuckoo has been use, can periodically store and release SCATRWD has identified specific rare. We do not anticipate a noticeable large amounts of water that can mimic numbered areas or units of their land increase in section 7 consultations in riverine flood flows within the lakebed, where their various rules and the future, nor any significant change to regulations apply. The SCATRWD spreading water over a large area and the current management of western administers fishing licenses for San stimulating the growth of vegetation yellow-billed cuckoos or its habitat Carlos Reservoir, but does not include such as willow and cottonwood, and resulting from consultations. helping to create and maintain western Federal land within the conservation yellow-billed cuckoo habitat. Coolidge space of San Carlos Reservoir. Other Another important benefit of Dam and San Carlos Reservoir operation than a store and marina located closer including lands in a critical habitat plays a role in the overall development, toward Coolidge Dam and adjacent to designation is that it can serve to persistence, and recycling of western the reservoir, no paved roads, developed educate landowners, agencies, tribes, yellow-billed cuckoo habitat (Service camping areas, or other designed and the public regarding the potential 2004, pp. 14–19). The San Carlos recreation centers ae located within the conservation value of an area, and may Apache Water Rights Settlement Act of San Carlos Reservoir conservation help focus conservation efforts on areas 1992, allows the San Carlos Apache space. of high value for certain species. Any Tribe to exchange its Central Arizona Benefits of Inclusion—San Carlos information about the western yellow- Project water allocation for irrigation Apache Tribe billed cuckoo that reaches a wide water releases from San Carlos audience, including parties engaged in As discussed above under Effects of Reservoir, and grants the Tribe conservation activities, is valuable. Critical Habitat Designation Section 7 permission to store exchanged water in Consultation, Federal agencies, in However, the southwestern willow the reservoir to maintain a permanent consultation with the Service, must flycatcher has been listed since 1995, pool for fish, wildlife, and recreation ensure that their actions are not likely and western yellow-billed cuckoo has (LCR MSCP 2004, p. 5). Although to jeopardize the continued existence of been a candidate species since 2001. critical habitat is not being designated any listed species or result in the These regulatory developments already on the Gila River Indian Community destruction or adverse modification of ensured that the San Carlos Apache (GRIC) lands, this Tribe is entitled to its any designated critical habitat of such Tribe, GRIC, Reclamation, BIA, State of allocation of water per existing species. The difference in the costs or Arizona and others are fully aware of agreements and exchanges and therefore outcomes of the jeopardy analysis and the importance of San Carlos Reservoir has an interest in San Carlos the adverse modification analysis to listed riparian bird habitat and management. represents the regulatory benefit of conservation due to their involvement The San Carlos Apache Recreation critical habitat. A critical habitat in the water transfer consultations. The and Wildlife Department conduct designation requires Federal agencies to GRIC is made up of members of both the surveys for western yellow-billed consult on whether their activity would Akimel O’odham (Pima) and the Pee- cuckoo, but population size and destroy or adversely modify critical Posh (Maricopa) tribes. The Akimel territory information are the proprietary habitat to the point where recovery O’otham name for the yellow-billed information of the San Carlos Apache could not be achieved. cuckoo is Kathgam. The Pee-Posh Tribe. An unknown number of western The Gila River, Eagle Creek, and San general term for birds is ’chiyer. The yellow-billed cuckoos occur upstream of Carlos Apache parcels are known to be GRIC and the San Carlos Apache Tribe the San Carlos Reservoir on the Gila occupied by western yellow-billed have a long standing record for River and on Eagle Creek within tribal cuckoos, and therefore, if a Federal conserving habitat for sensitive species. boundaries although the habitat appears action or permitting occurs, there is a Given that these regulatory actions have to be suitable. Western yellow-billed nexus for evaluation under section 7 of already informed the public about the cuckoos occur downstream and the Act. In addition, any water delivery value of these areas and helped to focus upstream of the San Carlos Apache or operational activities associated with potential conservation actions, the Reservation on the Gila River. Recent Coolidge Dam by the BIA or educational benefits from designating surveys in 2016 and 2019 confirm Reclamation would also be subject to critical habitat would be small. presence of a breeding western yellow- section 7 consultation for both the billed cuckoos on the Gila River and in listing and critical habitat. For example, Another possible benefit of the Eagle Creek (Andreson 2016b, entire; in 2003, Reclamation initiated designation of critical habitat is that it WestLand Resources, Inc. 2019, entire; consultation under section 7 of the Act, may also affect the implementation of and Cornell Lab of Ornithology 2020 on a proposed water exchange between Federal laws, such as the Clean Water (eBird data)). The San Carlos Apache the San Carlos Apache Tribe and the Act. These laws require analysis of the parcels along lower Aravaipa Creek and Central Arizona Project. We completed potential for proposed projects to the lower San Pedro River between a biological opinion (Service 2004, significantly affect the environment. Aravaipa Creek and the Gila River entire). The only consultation on Eagle Critical habitat may signal the presence confluence are within a riparian Creek (near Unit 28 (Gila River 2)) of sensitive habitat that could otherwise corridor occupied by western yellow- involved an upstream fish barrier and a be missed in the review process for billed cuckoos (Service 2013, pp. 349, BLM grazing plan. However, our recent these other environmental laws.

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Benefits of Exclusion—San Carlos natural resources in accordance with include the importance of our Apache Tribe their own policies, customs, and laws, partnerships and working relationships The benefits of excluding the Gila and in the case of GRIC, a potential with the San Carlos Apache and Gila River Indian Community and the San impact to their federally mandated River Indian Community, as well as our Carlos Apache Tribe lands from water deliveries. The perceived future responsibility to afford reasonable designated critical habitat include: (1) restrictions (whether realized or not) of protection of Native American trust Our deference to the Tribe to develop a critical habitat designation could have assets. While San Carlos Reservoir is and implement conservation and a damaging effect to coordination Federal land, the water resources it natural resource management plans for efforts, possibly preventing actions that supports are essential components to their lands and resources, which might maintain, improve, or restore both the San Carlos Apache Tribe and includes benefits to the western yellow- habitat for the western yellow-billed Gila River Indian Community. These billed cuckoo and its habitat that might cuckoo and other listed species. For tribes play an important partnership not otherwise occur; (2) the continuance these reasons, we have determined that role in managing their lands for western and strengthening of our effective our working relationships with these the yellow-billed cuckoo recovery. Without working relationships with the Tribe to GRIC and San Carlos Apache Tribe their cooperation, land management, promote the conservation of the western would be better maintained if the and ability to share information, yellow-billed cuckoo and its habitat; critical habitat areas identified on tribal achieving western yellow-billed cuckoo lands on the Gila River, Eagle Creek, conservation would be difficult on and (3) the maintenance of effective lower San Pedro River and Federal Tribal lands. Our conservation partnerships with the Tribe and working lands within the San Carlos Reservoir partnership with tribes also includes the in collaboration and cooperation to owned by BIA and managed by the San advancement and support of our Federal promote additional conservation of the Carlos Apache Tribe are excluded from Indian Trust obligations and the western yellow-billed cuckoo and their the final designation. We view this as a maintenance of effective collaboration habitat. The San Carlos Reservoir was substantial benefit since we have and cooperation to promote the acquired by BIA for the purpose of developed a cooperative working conservation of the western yellow- relationship with these tribes for the billed cuckoo and its habitat. In water storage for the Gila River Indian mutual benefit of western yellow-billed conclusion, we find that the benefits of Community and the San Carlos Apache cuckoo conservation and other excluding the Gila River, Eagle Creek, Tribe. Additionally, San Carlos endangered and threatened species. and San Carlos Reservoir Lakebed on Reservoir has become an important part San Carlos Apache Reservation; and San of the San Carlos Apache Tribe society Benefits of Exclusion Outweigh the Carlos Apache parcels on lower San because it generates income through its Benefits of Inclusion—San Carlos Pedro River and Aravaipa Creek from recreational value, and nearby stores, Apache Tribe the final critical habitat designation lodging, and gaming facilities, thereby The benefits of designating the areas outweigh the benefits of including these becoming a significant trust asset to identified as critical habitat within the areas. both Gila River Indian Community and Gila River, Eagle Creek, and Federal the San Carlos Apache Tribe. During the lands at San Carlos Reservoir on the San Exclusion Will Not Result in Extinction development of the southwestern Carlos Apache Reservation; and the San of the Species—San Carlos Apache willow flycatcher and western yellow- Carlos Apache parcels on lower San Tribe billed cuckoo critical habitat Pedro River and Aravaipa Creek are We have determined that exclusion of designations and recovery limited to the incremental benefits critical habitat from the areas identified implementation, we have met and gained through the regulatory on the Gila River, Eagle Creek, and San communicated with the GRIC and San requirement to consult under section 7 Carlos Reservoir Lakebed on San Carlos Carlos Apache Tribe to discuss how and consideration of the need to avoid Apache Reservation and San Carlos they might be affected and measures adverse modification of critical habitat, Apache parcels on lower San Pedro they make take as a result of these as well as agency and educational River and Aravaipa Creek will not result actions. As a result, the San Carlos awareness, and implementation of other in the extinction of the western yellow- Apache Tribe submitted a Flycatcher laws and regulations. However, we have billed cuckoo. We base this Management Plan that is compatible determined that these benefits are determination on several points. Firstly, with western yellow-billed cuckoo minimized because the species is listed as discussed above under Effects of management (San Carlos Apache Tribe as threatened and there is a lack of Critical Habitat Designation Section 7 2005, entire). During our Federal actions occurring within the Consultation, if a Federal action or communication with these tribes, we tribal lands and conservation space of permitting occurs, the known presence recognized and endorsed their San Carlos Reservoir; the operation of of western yellow-billed cuckoos or fundamental right to provide for tribal Coolidge Dam that supports western their habitat would require evaluation resource management activities, yellow-billed cuckoo habitat it under the jeopardy standard of section including those relating to riparian influences; and the limited discretion 7 of the Act, even absent the designation habitat. The designation of critical BIA may have with Coolidge Dam of critical habitat, and thus will protect habitat would be expected to have an operations. Because of this overall the species against extinction. adverse impact on the working awareness by tribal, Federal, and State Secondly, the San Carlos Apache are relationship for conservation that we entities, we have determined that there committed to protecting and managing have developed with the GRIC and the is little educational benefit or support for the western yellow-billed cuckoo San Carlos Apache Tribe. During our for other environmental laws and and its habitat. We have determined that discussions and in the comments we regulations attributable to western this commitment accomplishes greater received from the Tribes on the yellow-billed cuckoo critical habitat conservation than would be available proposed designation of critical habitat, beyond those achieved from listing the through the implementation of a we were informed that critical habitat species under the Act. designation of critical habitat on a would be viewed as an intrusion on The benefits of excluding these areas project-by-project basis. We have their sovereign abilities to manage from designation as critical habitat also determined that excluding these lands

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will not result in the extinction of the project reviews. The review process yellow-billed cuckoo that reaches a western yellow-billed cuckoo and that contains special consideration for any wide audience, including parties these lands should be excluded under project occurring within the habitat for engaged in conservation activities, is subsection 4(b)(2) of the Act because the any special status or listed species and valuable. The Shoshone-Bannock Tribes benefits of exclusion from critical appropriate mitigation of potential are currently working to survey western habitat for the western yellow-billed impacts is developed by the Shoshone- yellow-billed cuckoo habitat, participate cuckoo outweigh the benefits of their Bannock Tribes’ Fish and Wildlife in working groups, and exchange inclusion. As a result, approximately Department. Significant changes in management information. Because the 12,074 ac (4,886 ha) of San Carlos riparian cottonwood habitat conditions Shoshone-Bannock Tribes have Apache Tribal Lands in Unit 22 (AZ–20) on the Fort Hall Reservation have not developed the WMP and are aware of (10,183 ac (4,121 ha)); Unit 28 (AZ–26) occurred over the past decade and the value of their lands for western (1,436 ac (581 ha)); and Unit 17 (AZ–15) existing habitat conditions are not yellow-billed cuckoo conservation, the (455 ac (184 ha)) on the Gila River, Eagle expected to change, except for those educational benefits of a western Creek, and San Carlos Reservoir positive projected habitat programs the yellow-billed cuckoo critical habitat Lakebed on San Carlos Apache Shoshone-Bannock Tribes are designation are minimized. Reservation, and San Carlos Apache undertaking, in the near or long term. Another possible benefit of the parcels on lower San Pedro River and designation of critical habitat is that it Benefits of Inclusion—Tribal Lands on Aravaipa Creek are excluded from the may inform implementation of Federal Fort Hall Reservation final critical habitat designation. laws such as the Clean Water Act (33 Effects of Critical Habitat Designation U.S.C. 1251–1376). These laws require Unit 65 (ID–1) Snake River 1— Section 7 Consultation, Federal analysis of the potential for proposed Shoshone-Bannock Tribal Land agencies, in consultation with the projects to significantly affect the Management Service, must ensure that their actions environment. Critical habitat may signal The Shoshone-Bannock tribal lands are not likely to jeopardize the the presence of sensitive habitat that on the Fort Hall Reservation are located continued existence of any listed could otherwise be missed in the review in Bingham, Bannock, Caribou, and species or result in the destruction or process for these other environmental Power Counties in Idaho, and adverse modification of any designated laws. approximately 2,527 ac (1,023 ha) of critical habitat of such species. The Finally, there is the possible benefit western yellow billed cuckoo critical difference in the outcomes of the that additional funding could be habitat with Unit 65 has been identified jeopardy analysis and the adverse generated for habitat improvement by an on their lands. Riparian cottonwood modification analysis represents the area being designated as critical habitat. forest occurs on approximately 1 regulatory benefit and costs of critical Some funding sources may rank a percent of the Fort Hall Reservation and habitat. A critical habitat designation project higher if the area is designated is primarily found along the Snake River requires Federal agencies to consult on as critical habitat. The Shoshone- in (the area known as) the Fort Hall whether their activity would destroy or Bannock Tribes have coordinated for bottoms. The Shoshone-Bannock Tribes adversely modify critical habitat to the additional sources of funding in order to have a demonstrated track record of point where recovery could not be conduct wildlife-related conservation maintaining these lands for natural achieved. activities. Therefore, having an area resources through implementation of Our section 7 consultation history designated as critical habitat could their Woodland Management Plan within the Shoshone-Bannock Tribes improve the chances of receiving (WMP) and draft Integrated Resource show that since listing in 2014, no funding for western yellow-billed Management Plan (IRMP). formal consultations have occurred for cuckoo habitat-related projects. The WMP was finalized in 2008 and actions conducted on tribal lands. We However, areas where nesting, identifies management guidance for have conducted an informal migrating, dispersing, or foraging specific forest types to maintain long- consultation with Reclamation western yellow-billed cuckoos occur, as term sustainability of woodlands on the implementing actions which affect tribal is the case here, may also provide Fort Hall Reservation. The plan lands; however, overall, since listing in benefits when projects are evaluated for identifies actions that contribute to the 2014, section 7 consultations have been receipt of funding. conservation of cottonwood forest rare on tribal lands. Because of how the Therefore, because of the habitat important to western yellow Shoshone-Bannock Tribes have chosen implementation of the WMP and IRMP billed-cuckoos including reducing the to manage and conserve their lands and conservation, rare initiation of formal risk of wildfire, increasing cottonwood the lack of past section 7 consultation section 7 consultations, the occurrence regeneration, decreasing the spread of history, we do not anticipate that the of western yellow-billed cuckoo on the nonnative plants, and maintaining and Shoshone-Bannock Tribes’ actions Fort Hall Reservation, and overall improving riparian conditions. Specific would change considerably, generate a coordination with the Shoshone- habitat improvements undertaken as the noticeable increase in section 7 Bannock Tribes on western yellow- result of the WMP include fencing consultations, and that the consultations billed cuckoo-related issues, it is riparian areas to exclude them from would significantly change the current expected that there may be some, but livestock grazing and completing management of western yellow-billed limited, benefits from including Fort noxious and invasive weed treatments. cuckoos or their habitat. Hall Reservation tribal lands in a Additionally, the Shoshone-Bannock Another important benefit of western yellow-billed cuckoo critical Tribes are implementing the draft IRMP including lands in a critical habitat habitat designation. The principal which promotes an integrated review designation is that the designation can benefit of any designated critical habitat process for project planning and serve to educate landowners and the is that activities in and affecting such implementation across the tribe’s public regarding the potential habitat require consultation under resource departments. Although still in conservation value of an area, and it section 7 of the Act for adverse draft form, the IRMP has been used may help focus management efforts on modification. Such consultation would regularly with a great deal of success in areas of high value for certain species. still be required due to the species being delivering conservation as part of Any information about the western listed as threatened regardless of the

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designation due to the area being Tribes are where western yellow-billed billed cuckoo critical habitat. We view occupied by the species. However, with cuckoo have been recorded. The this as a substantial benefit since we the Shoshone-Bannock Tribes Shoshone-Bannock Tribes have have developed a cooperative working implementing measures that conserve expressed that their lands, and relationship with the Shoshone- western yellow-billed cuckoo habitat specifically riparian habitat, are Bannock Tribes for the mutual benefit of combined with the rarity of Federal connected to their cultural and religious western yellow-billed cuckoo actions resulting in formal section 7 beliefs, and as a result they have a conservation and other endangered and consultations, the benefits of a critical strong commitment and reverence threatened species. habitat designation are minimized. toward its stewardship and We indicated in the proposed rule Benefits of Exclusion—Tribal Lands on conservation. The WMP and IRMP that our final decision regarding the Fort Hall Reservation identify actions that contribute to the exclusions of tribal lands under 4(b)(2) conservation of cottonwood forest of the Act would consider tribal The benefits of excluding Shoshone- habitat important to western yellow management and the recognition of their Bannock tribal lands on the Fort Hall billed-cuckoo including; reducing the capability to appropriately manage their Reservation from designated critical risk of wildfire, increasing cottonwood own resources, and the government-to- habitat include: (1) Our deference to the regeneration, decreasing the spread of government relationship of the United Tribe to develop and implement nonnative plants, and maintaining and States with tribal entities (85 FR 11458; conservation and natural resource improving riparian conditions. Specific February 27, 2020 p. 11512). We also management plans for their lands and habitat improvements undertaken as the acknowledged our responsibilities to resources, which includes benefits to result of the WMP include fencing work directly with tribes in developing the western yellow-billed cuckoo and its riparian areas to exclude them from programs for healthy ecosystems, that habitat that might not otherwise occur; livestock grazing and completing tribal lands are not subject to the same (2) the continuance and strengthening of noxious and invasive weed treatments. controls as Federal public lands, our our effective working relationships with Through the IRMP the Shoshone- need to remain sensitive to Indian the Tribe to promote the conservation of Bannock Tribes also have project-by- culture, and to make information the western yellow-billed cuckoo and its project review processes in place that available to tribes (85 FR 11458; habitat; and (3) the maintenance of allow evaluation and implementation of February 27, 2020 p. 11504). effective partnerships with the Tribe conservation measures to minimize, or We coordinated and communicated and working in collaboration and eliminate adverse impacts. The cooperation to promote additional with the Shoshone-Bannock Tribes Shoshone-Bannock Tribes have natural conservation of the western yellow- throughout the proposal of western resource departments, which have billed cuckoo and their habitat. yellow-billed cuckoo critical habitat by During the development of the experienced biologists, conduct western providing them information on western yellow-billed cuckoo critical yellow-billed cuckoo surveys, and implementation of section 4(b)(2) of the habitat proposal and in exercise of our maintain databases on the quality of Act; guidance and review; related trust responsibility to the Tribes, we habitat throughout tribal lands and the documents, and public hearings; and have met and communicated with the status and occurrence of western our interest in consulting with them on Shoshone-Bannock Tribes to discuss yellow-billed cuckoo. Having this a government-to-government basis at how they might be affected by the information available to the Shoshone- their request. We also followed up our regulations associated with western Bannock Tribes creates effective correspondence with telephone calls yellow-billed cuckoo management, conservation through any project review and electronic mail to assist with any recovery actions, and the designation of process. The implementation of their questions. During the comment period, critical habitat. As such, we established WMP and IRMP has been coordinated we received input from the Shoshone- relationships specific to western yellow- and approved through appropriate tribal Bannock Tribes expressing the view that billed cuckoo conservation. As part of processes, such as tribal councils. designating western yellow-billed our relationship, we have provided Overall, these commitments toward cuckoo critical habitat on tribal land technical assistance to the Shoshone- management of riparian habitat likely would adversely affect the Service’s Bannock Tribes to conserve the western accomplish greater conservation than working relationship with all tribes. We yellow billed cuckoo and its habitat on would be available through the conclude that our working relationships their lands. The Shoshone-Bannock implementation of a designation of with these tribes on a government-to- Tribes included measures within the critical habitat on a project-by-project government basis have been extremely WMP and IRMP that we have in our basis. beneficial in implementing natural supporting record for this decision. We The designation of critical habitat on resource programs of mutual interest, have determined that the Shoshone- the Shoshone-Bannock Tribes lands and that these productive relationships Bannock Tribes should be the would be expected to have an adverse would be compromised by critical governmental entities to manage and impact on our working relationship habitat designation of these tribal lands. promote western yellow-billed cuckoo with the Shoshone-Bannock Tribes. The We have determined that the conservation on their lands. During our perceived restrictions of a critical Shoshone-Bannock Tribes are willing to communication with the Shoshone- habitat designation could have a work cooperatively with us and others Bannock Tribes, we recognized and damaging effect on coordination efforts, to benefit listed species, but only if they endorsed their fundamental right to possibly preventing actions that might view the relationship as mutually provide for tribal resource management maintain, improve, or restore habitat for beneficial. Consequently, the activities, including those relating to the western yellow-billed cuckoo and development of future voluntarily riparian habitat. other species. For these reasons, we management actions for other listed The Shoshone-Bannock Tribes’ WMP have determined that our working species may be compromised if these and IRMP address western yellow-billed relationships with the Shoshone- tribal lands are designated as critical cuckoo habitat. The proposed critical Bannock Tribes would be better habitat for the western yellow-billed habitat segment we identified on lands maintained if we excluded their lands cuckoo. Thus, a benefit of excluding managed by the Shoshone-Bannock from the designation of western yellow- these lands would be future

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conservation efforts that would benefit would not otherwise be available Velarde reach of the Rio Grande, and other listed species. without the Service’s maintaining a comprises the largest contiguous area of cooperative working relationship with generally intact bosque, as well as the Benefits of Exclusion Outweigh Benefits the Shoshone-Bannock Tribes. The largest riparian area under the control of of Inclusion—Tribal Lands on Fort Hall actions taken by the Shoshone-Bannock a single landowner, within the Velarde Reservation Tribes to manage and protect habitat reach. On Ohkay Owingeh, we are The benefits of including the needed for western yellow-billed excluding 1,313 ac (531 ha) of critical Shoshone-Bannock Tribes lands in the cuckoo are above those conservation habitat. critical habitat designation are limited measures which may be required if the Dating back to 1993, upon observing to the incremental benefits gained area was designated as critical habitat. the presence of the southwestern willow through the regulatory requirement to In conclusion, we find that the benefits flycatcher, the Pueblo began restoring consult under section 7 and of excluding the Fort Hall Reservation the bosque habitat and associated consideration of the need to avoid lands (Shoshone-Bannock Tribes) in wetlands specifically for the adverse modification of critical habitat, Idaho, from critical habitat designation southwestern willow flycatcher. Habitat agency and educational awareness, outweigh the benefits of including these within the Pueblo had been much potential additional grant funding, and areas. degraded relative to historical the implementation of other laws and conditions for two main reasons: (1) regulations. However, due to the rarity Exclusion Will Not Result in River channelization that has caused of Federal actions resulting in formal Extinction—Tribal Lands on Fort Hall floodplain desiccation, cessation of section 7 consultations, the benefits of Reservation overbank flooding, and disruption of a critical habitat designation are We have determined that exclusion of geomorphological processes; and (2) minimized. In addition, the benefits of the Shoshone-Bannock Tribal lands intensive invasion by nonnative trees, consultation are further minimized from the final critical habitat primarily Russian olives. The increasing because any conservation measures designation will not result in the frequency and severity of fires in the Rio which may have resulted from extinction of the western yellow-billed Grande bosque, accompanied by consultation are already provided cuckoo. We base this determination on changes in vegetation and the water through other mechanisms, such as (1) several points. Firstly, as discussed regime, underscores the urgency of the the conservation benefits to the western above under Effects of Critical Habitat restoration needs. yellow-billed cuckoo and their habitat Designation Section 7 Consultation, if a Ohkay Owingeh immediately began from implementation of the Federal action or permitting occurs, the restoration/conservation projects to Reservation’s WMP and IRMP; and (2) known presence of western yellow- benefit the southwestern willow the maintenance of effective billed cuckoos or their habitat would flycatcher in 1994, with restoration/ collaboration and cooperation to require evaluation under the jeopardy conservation occurring over promote the conservation of the western standard of section 7 of the Act, even approximately 4 ac (1.6 ha) of Ohkay yellow-billed cuckoo and its habitat. absent the designation of critical habitat, Owingeh lands. Since 1999, the Pueblo Because the Shoshone-Bannock and thus will protect the species against has initiated or completed a variety of Tribes have developed specific extinction. Secondly, the Shoshone- restoration/conservation projects, management plans, has been involved Bannock Tribes have committed to including further wetland creation and with the critical habitat designation protecting and managing western expansion, southwestern willow process, and is aware of the value of yellow-billed cuckoo habitat according flycatcher habitat enhancement with their lands for western yellow-billed to their WMP and IRMP. We have vegetation and open water, and removal cuckoo conservation, the educational determined that this commitment of non-native vegetation with benefits of a western yellow-billed accomplishes greater conservation than replacement of native vegetation. These cuckoo critical habitat designation are would be available through the projects are funded through various also minimized. implementation of a designation of programs of the Environmental The benefits of excluding these areas critical habitat on a project-by-project Protection Agency, Wildland Urban from being designated as western basis. With the implementation of these Interface/Collaborative Forest yellow-billed cuckoo critical habitat are plans, we have concluded that this Restoration Program, Middle Rio Grande more significant and include exclusion from critical habitat will not Endangered Species Act Collaborative encouraging the continued result in the extinction of the western Program, Service Partners for Fish and implementation of Shoshone-Bannock yellow-billed cuckoo. Accordingly, we Wildlife Program, and the State of New Tribes management and conservation have determined that 2,527 ac (1,023 ha) Mexico; they affect 744 riparian ac (301 measures such as monitoring, survey, of the Fort Hall Reservation tribal lands riparian ha) on the Pueblo with direct habitat management and protection, and are excluded under subsection 4(b)(2) of and indirect benefits to the fire-risk reduction activities that are the Act because the benefits of southwestern willow flycatcher. The planned for the future or are currently excluding these lands from critical project implementations include being implemented. These programs habitat for the western yellow-billed conservation, monitoring, and will allow the Shoshone-Bannock Tribes cuckoo outweigh the benefits of their management for the southwestern to manage their natural resources to inclusion, and the exclusion of these willow flycatcher into the future. These benefit riparian habitat for the western lands from the designation will not efforts contribute to the long term goals yellow-billed cuckoo, without the result in the extinction of the species. of recovery for the southwestern willow perception of Federal Government flycatcher. In addition to the habitat intrusion. This philosophy is also Unit 35 (NM–4) Upper Rio Grande 1— work, the Pueblo supports southwestern consistent with our published policies Ohkay Owingeh, NM willow flycatcher surveys and nest on Native American natural resource Ohkay Owingeh is located just north monitoring on the Pueblo lands. Though management. The exclusion of these of Espanola in Rio Arriba County New past work has targeted southwestern areas will likely also provide additional Mexico, and adjoins the lands of Santa willow flycatchers, restoration efforts benefits to the western yellow-billed Clara Pueblo. The Pueblo includes the also provide benefit to the western cuckoo and other listed species that southern or downstream end of the yellow-billed cuckoos. It is because of

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their historical response to meet the additional benefits beyond those that with their own policies, customs, and needs of listed species as provided in will result from continued consultation laws. To this end, we found that the the example above, that the Service for the presence of the species. Pueblo would prefer to work with us on concludes that Ohkay Owingeh will Another possible benefit of the a Government-to-Government basis. For ensure conservation benefits to the designation of critical habitat is that it these reasons, we have determined that western yellow-billed cuckoo on their may also affect the implementation of our working relationship with the lands. Ohkay Owingeh commented that Federal laws, such as the Clean Water Pueblo would be maintained if they are the western yellow-billed cuckoo will Act. These laws require analysis of the excluded from the designation of critical be incorporated into their Riparian and potential for proposed projects to habitat for the western yellow-billed Bosque Habitat Restoration Management significantly affect the environment. cuckoo. We view this as a substantial Plan, as was done for other listed Critical habitat may signal the presence benefit. species such as the New Mexico of sensitive habitat that could otherwise Proactive voluntary conservation meadow jumping mouse (Zapus be missed in the review process for efforts have and will continue to hudsonius luteus). these other environmental laws. promote the recovery of the western yellow-billed cuckoo. As mentioned Benefits of Exclusion—Ohkay Owingeh Benefits of Inclusion—Ohkay Owingeh above, the Pueblo is an important land As discussed above under Effects of The benefits of excluding the Pueblo manager in the Upper Rio Grande Unit. Critical Habitat Designation Section 7 from designated critical habitat are The consultation history, surveys, and Consultation, Federal agencies, in significant. We have determined that the conservation, restoration and consultation with the Service, must significant benefits that would be management information historically ensure that their actions are not likely realized by foregoing the designation of submitted by the Pueblo documents that to jeopardize the continued existence of critical habitat on this area include: (1) meaningful collaborative and any listed species or result in the Our deference to the Pueblo to develop cooperative work for listed species and destruction or adverse modification of and implement conservation and their habitat will continue within their any designated critical habitat of such natural resource management plans for lands. These commitments demonstrate species. The difference in the outcomes their lands and resources, which the willingness of the Pueblo to work of the jeopardy analysis and the adverse includes benefits to the western yellow- cooperatively with us toward modification analysis represents the billed cuckoo and its habitat that might conservation efforts that will benefit the regulatory benefit and costs of critical not otherwise occur; (2) the continuance western yellow-billed cuckoo. The habitat. A critical habitat designation and strengthening of our effective Pueblo has committed to several requires Federal agencies to consult on working relationships with the Pueblo ongoing or future management, whether their activity would destroy or to promote the conservation of the restoration, enhancement, and survey adversely modify critical habitat to the western yellow-billed cuckoo and its activities that may not occur with point where recovery could not be habitat; and (3) the maintenance of critical habitat designation. Therefore, achieved. effective partnerships with the Pueblo we have determined that the results of Since 1993, the section 7 and working in collaboration and these activities will promote long-term consultations involving Ohkay Owingeh cooperation to promote additional protection and conserve the western for the southwestern willow flycatcher, conservation of the western yellow- yellow-billed cuckoo and its habitat New Mexico meadow jumping mouse, billed cuckoo and their habitat. within the Pueblo lands. The benefits of or western yellow-billed cuckoo have all We have determined that Ohkay excluding this area from critical habitat been informal (with the exception of Owingeh should be the governmental will encourage the continued one formal consultation). Effects to the entity to manage and promote the cooperation and development of data- southwestern willow flycatcher, New conservation of the western yellow- sharing and management plans. If this Mexico meadow jumping mouse, and/or billed cuckoo on their land as indicated area is designated as critical habitat, we western yellow-billed cuckoo from these in Secretarial Order 3206; the have determined that it is unlikely that projects have been insignificant and President’s memorandum of April 29, sharing of information would occur. discountable because conservation 1994, ‘‘Government-to-Government measures have focused on restoration Relations with Native American Tribal Benefits of Exclusion Outweigh the and management for the species and its Governments’’ (59 FR 22951); Executive Benefits of Inclusion—Ohkay Owingeh habitat. Order 13175; and the relevant provision The long-term goal of riparian Another possible benefit is that the of the Departmental Manual of the management on Ohkay Owingeh is to designation of critical habitat can serve Department of the Interior (512 DM 2). make significant additions of wetland to educate the public regarding the We find that other conservation areas for listed species, as well as potential conservation value of an area, benefits are provided to the Upper Rio implement innovative restoration and this may focus and contribute to Grande Unit and the western yellow- techniques, decrease fire hazards by conservation efforts by other parties by billed cuckoo and its habitat by restoring native vegetation, share clearly delineating areas of high excluding the Pueblo from the information with other restoration conservation value for certain species. designation. For example, as part of practitioners, use restoration projects in Any information about the western maintaining a cooperative working the education of the tribal community yellow-billed cuckoo and its habitat that relationship with the Pueblo, and surrounding community, and reaches a wide audience, including conservation benefits, including listed provide a working and training other parties engaged in conservation species’ surveys, nest and/or habitat environment for the people of the activities, would be considered monitoring, and/or habitat restoration Pueblo. valuable. However, the Pueblo is and enhancement have been possible. Based on their traditional beliefs and already working with the Service to Ohkay Owingeh submitted comments ties to the bosque area, the Pueblo address the habitat needs of the species. on October 14, 2014, indicated that continues to protect, conserve, and For these reasons, then, we have critical habitat would be viewed as an restore the riparian species and their determined that designation of critical intrusion on their sovereign abilities to habitat. As is demonstrated through habitat would have few, if any, manage natural resources in accordance their projects, the Pueblo has invested a

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significant amount of ongoing time and found on those lands according to their of high conservation value for certain effort to address the needs and recovery tribal and cultural management plans species. Any information about the of the southwestern willow flycatcher. and natural resource management western yellow-billed cuckoo and its In addition, based on the long term objectives, which provide conservation habitat that reaches a wide audience, goals of restoring additional wetland benefits for the western yellow-billed including other parties engaged in and native habitat, the Pueblo has cuckoo and its habitat. In short, the conservation activities, would be shown that it is managing its resources Pueblo is committed to greater considered valuable. to meet its traditional and cultural conservation measures on their land Another possible benefit of the needs, while addressing the needs of than would be available through the designation of critical habitat is that it listed species. designation of critical habitat. may also affect the implementation of Because the Pueblo has a lengthy Accordingly, we have determined that Federal laws, such as the Clean Water history of managing and restoring the 1,313 ac (531 ha) of Ohkay Owingeh Act. These laws require analysis of the habitat for sensitive species, has been lands be excluded from the final critical potential for proposed projects to involved with the critical habitat habitat under subsection 4(b)(2) of the significantly affect the environment. designation process, and is aware of the Act because the benefits of exclusion Critical habitat may signal the presence value of their lands for western yellow- outweigh the benefits of inclusion and of sensitive habitat that could otherwise billed cuckoo conservation, the will not cause the extinction of the be missed in the review process for educational benefits of a western species. these other environmental laws. yellow-billed cuckoo critical habitat Unit 36 (NM–5) Upper Rio Grande 2— Finally, there is the possible benefit designation are also minimized. that additional funding could be In summary, the benefits of including Santa Clara Pueblo, NM generated for habitat improvement by an the Pueblo in critical habitat are low, On Santa Clara Pueblo, we proposed area being designated as critical habitat. and are limited to insignificant 141 ac (57 ac) of critical habitat within Some funding sources may rank a educational benefits. The benefits of this unit in Rio Arriba County, New project higher if the area is designated excluding these areas from designation Mexico. The entire area is considered as critical habitat. Tribes or Pueblos as critical habitat for the western occupied at the time of listing. The yellow-billed cuckoo are significant, Pueblo has joined with San Ildefonso often seek additional sources of funding and include encouraging the continued Pueblo and Ohkay Owingeh to work in order to conduct wildlife-related development and implementation of with the Corps to complete large scale conservation activities. Therefore, special management measures such as environmental restoration and having an area designated as critical monitoring, surveys, enhancement, and floodplain management on their lands. habitat could improve the chances of restoration activities that the Pueblo As a result, Santa Clara Pueblo is receiving funding for western yellow- plans for the future or is currently already restoring all habitat proposed as billed cuckoo habitat-related projects. implementing. These activities and critical habitat for western yellow-billed Benefits of Exclusion—Santa Clara projects will allow the Pueblo to manage cuckoos with the exception of 4 ac (1.6 Pueblo their natural resources to benefit the ha) which are agricultural lands. We Upper Rio Grande Unit and the western have a productive working relationship The benefits of excluding the Pueblo yellow-billed cuckoo, without the with Santa Clara Pueblo and from designated critical habitat are perception of Federal Government coordinated with them during the significant. The proposed critical habitat intrusion. This philosophy is also critical habitat designation process. designation included areas of riparian consistent with our published policies woodland, or bosque, within the Pueblo Benefits of Inclusion—Santa Clara on Native American natural resource boundaries. We have determined that Pueblo management. The exclusion of this area the significant benefits that would be will likely also provide additional As discussed above under Effects of realized by foregoing the designation of benefits to the species that would not Critical Habitat Designation Section 7 critical habitat on this area include: (1) otherwise be available to encourage and Consultation, Federal agencies, in Our deference to the Pueblo to develop maintain cooperative working consultation with the Service, must and implement conservation and relationships. We find that the benefits ensure that their actions are not likely natural resource management plans for of excluding this area from critical to jeopardize the continued existence of their lands and resources, which habitat designation outweigh the any listed species or result in the includes benefits to the western yellow- benefits of including this area. destruction or adverse modification of billed cuckoo and its habitat that might any designated critical habitat of such not otherwise occur; (2) the continuance Exclusion Will Not Result in Extinction species. The difference in the outcomes and strengthening of our effective of the Species—Ohkay Owingeh of the jeopardy analysis and the adverse working relationships with the Pueblo We have determined that exclusion of modification analysis represents the to promote the conservation of the the Pueblo land will not result in regulatory benefit and costs of critical western yellow-billed cuckoo and its extinction of the species. Firstly, as habitat. A critical habitat designation habitat; and (3) the maintenance of discussed above under Effects of Critical requires Federal agencies to consult on effective partnerships with the Pueblo Habitat Designation Section 7 whether their activity would destroy or and working in collaboration and Consultation, if a Federal action or adversely modify critical habitat to the cooperation to promote additional permitting occurs, the known presence point where recovery could not be conservation of the western yellow- of western yellow-billed cuckoos or achieved. billed cuckoo and their habitat. their habitat would require evaluation Another possible benefit is that the We have determined that Santa Clara under the jeopardy standard of section designation of critical habitat can serve Pueblo should be the governmental 7 of the Act, even absent the designation to educate the landowner and public entity to manage and promote the of critical habitat, and thus will protect regarding the potential conservation conservation of the western yellow- the species against extinction. Secondly, value of an area, and this may focus and billed cuckoo on their land as indicated the Pueblo is committed to protecting contribute to conservation efforts by in Secretarial Order 3206; Executive and managing Pueblo lands and species other parties by clearly delineating areas Order 13175; and the relevant provision

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of the Departmental Manual of the have determined that it is unlikely that implementing. These activities and Department of the Interior (512 DM 2). sharing of information would occur. projects will allow the Pueblo to manage We find that other conservation their natural resources to benefit the Benefits of Exclusion Outweigh the benefits are provided to the Upper Rio Upper Rio Grande Unit and the western Benefits of Inclusion—Santa Clara Grande Unit and the western yellow- yellow-billed cuckoo, without the Pueblo billed cuckoo and its habitat by perception of Federal Government excluding the Pueblo from the The benefits of including Pueblo in intrusion. This philosophy is also designation. For example, the objective the critical habitat designation are consistent with our published policies of Santa Clara Pueblo’s management of limited to the incremental benefits on Native American natural resource their land is to protect, conserve, and gained through the regulatory management. The exclusion of this area promote the well-being of listed species requirement to consult under section 7 will likely also provide additional and their associated habitats within the and consideration of the need to avoid benefits to the species that would not Pueblo’s boundaries. As part of adverse modification of critical habitat, otherwise be available to encourage and maintaining a cooperative working agency and educational awareness, maintain cooperative working relationship with the Pueblo, potential additional grant funding, and relationships. We find that the benefits conservation benefits, including listed the implementation of other law and of excluding this area from critical species’ surveys, nest and/or habitat regulations. However, due to the rarity habitat designation outweigh the monitoring, and/or habitat restoration of Federal actions resulting in formal benefits of including this area. and enhancement have been possible. In section 7 consultations, the benefits of comments submitted by Santa Clara a critical habitat designation are Exclusion Will Not Result in Extinction Pueblo on October 13, 2014, we were minimized. In addition, the Pueblo will of the Species—Santa Clara Pueblo informed that critical habitat would be continue to protect its bosque habitat We have determined that exclusion of viewed as unnecessary and offensive to and does not intend to develop the areas the Pueblo land will not result in impose extra regulatory burdens upon used by western yellow-billed cuckoo as extinction of the species. Firstly, as us when they are voluntarily and critical habitat. Moreover, as part of discussed above under Effects of Critical proactively managing their lands to their history, the Santa Clara Pueblo has Habitat Designation Section 7 provide benefit to the western yellow- conducted a variety of voluntary Consultation, if a Federal action or billed cuckoo. The Pueblo would prefer measures, restoration projects, and permitting occurs, the known presence to work with us on a Government-to- management actions to conserve of western yellow-billed cuckoos or Government basis. For these reasons, we riparian vegetation, including protecting their habitat would require evaluation have determined that our working riparian habitat from fire, maintaining under the jeopardy standard of section relationship with the Pueblo would be native vegetation, and preventing 7 of the Act, even absent the designation maintained if they are excluded from habitat fragmentation. The Pueblo is of critical habitat, and thus will protect the designation of critical habitat for the already working with the Service to the species against extinction. Secondly, western yellow-billed cuckoo. We view address the habitat needs of the species. the Pueblo is committed to protecting this as a substantial benefit. This working relationship will be better and managing Pueblo lands and species Proactive voluntary conservation maintained if Santa Clara Pueblo was found on those lands according to their efforts have and will continue to excluded from the designation. We view tribal and cultural management plans promote the recovery of the western this as a substantial benefit since we and natural resource management yellow-billed cuckoo. As mentioned have developed a cooperative working objectives, which provide conservation above, the Pueblo is an important land relationship for the mutual benefit of benefits for the western yellow-billed manager in the Upper Rio Grande Unit. endangered and threatened species, cuckoo and its habitat. In short, the The consultation conservation, including the western yellow-billed Pueblo is committed to greater restoration and management cuckoo. Because the Pueblo has conservation measures on their land information historically submitted by implemented habitat conservation and than would be available through the the Pueblo documents that meaningful restoration efforts, and is aware of the designation of critical habitat. collaborative and cooperative work for value of their lands for western yellow- Accordingly, we have determined that listed species and their habitat will billed cuckoo conservation, the the 141 ac (57 ha) of Santa Clara Pueblo continue within their lands. These educational benefits of a western lands are excluded under subsection commitments demonstrate the yellow-billed cuckoo critical habitat 4(b)(2) of the Act because the benefits of willingness of the Pueblo to work designation are also minimized. For exclusion outweigh the benefits of cooperatively with us toward these reasons, we have determined that inclusion and will not cause the conservation efforts that will benefit the designation of critical habitat would extinction of the species. western yellow-billed cuckoo. The have few, if any, additional benefits Pueblo has committed to several beyond those that will result from the Unit 36 (NM–5) Upper Rio Grande 2— ongoing or future management, presence of the species. San Ildefonso Pueblo, NM restoration, enhancement, and survey In summary, the benefits of including San Ildefonso Pueblo, is located in activities that may not occur with the Pueblo in critical habitat are low, Rio Arriba County New Mexico, and critical habitat designation. Therefore, and are limited to insignificant adjoins the lands of Santa Clara Pueblo. we have determined that the results of educational benefits. The benefits of On San Ildefonso Pueblo, we proposed these activities will promote long-term excluding these areas from designation 1,032 ac (418 ha) of critical habitat. protection and conserve the western as critical habitat for the western In 2011, an addendum to the Pueblo’s yellow-billed cuckoo and its habitat yellow-billed cuckoo are significant, 2005 Integrated Resource Management within the Pueblo lands. The benefits of and include encouraging the continued Plan (IRMP) was revised and adopted to excluding this area from critical habitat development and implementation of provide for long term management of will encourage the continued special management measures such as the Tribe’s natural resources, including cooperation and development of data- monitoring, surveys, enhancement, and the southwestern willow flycatcher’s sharing and management plans. If this restoration activities that the Pueblo habitat. The addendum to the Pueblo’s area is designated as critical habitat, we plans for the future or is currently IRMP specifically addresses measures to

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protect southwestern willow flycatcher Assessment and consultation number from the designation, because their past habitat based on the Southwestern 02ENNM00–2016–I–0398. and ongoing restoration projects, with Willow Flycatcher Recovery Plan Another possible benefit is that the management goals, provide for (Service 2002, entire). While funding designation of critical habitat can serve conservation benefits above any that specific for IRMP implementation has to educate the public regarding the would be provided by designating not been fully secured unless surplus potential conservation value of an area, critical habitat. For example, the funds are available, the Pueblo has and this may focus and contribute to educational aspects are similar for this committed to the IRMPs conservation efforts by other parties by area if they are not included in the implementation and the Addendum is clearly delineating areas of high designation because the Pueblo will now part of the Pueblo policy in this conservation value for certain species. continue to work cooperatively toward area. The Pueblo de San Ildefonso Any information about the western the conservation of the riparian worked with the Corps to protect the yellow-billed cuckoo and its habitat that ecosystem, and we have determined that southwestern willow flycatcher’s habitat reaches a wide audience, including based on their history of conservation, on tribal lands under agreements in other parties engaged in conservation that this will also benefit the western place to serve that purpose. Though the activities, would be considered yellow-billed cuckoo. western yellow-billed cuckoo has not valuable. The exclusion from critical habitat been included in the IRMP, many Another possible benefit of the will further support and maintain our management practices aid in the designation of critical habitat is that it cooperative working relationship with conservation of the western yellow- may also affect the implementation of the Pueblo, and provide conservation billed cuckoo. These include, but are Federal laws, such as the Clean Water benefits, including implementing not limited to, restoring adequate water- Act. These laws require analysis of the habitat restoration and enhancements related elements to improve and expand potential for proposed projects to above those which have already been the quality, quantity, and distribution of significantly affect the environment. implemented. During past discussions riparian habitat; retaining riparian Critical habitat may signal the presence with the Pueblo, we were informed that vegetation in the floodplain and of sensitive habitat that could otherwise critical habitat would be viewed as an minimizing clearing of vegetation; and, be missed in the review process for intrusion on their sovereign abilities to managing livestock grazing and these other environmental laws. manage natural resources in accordance Finally, there is the possible benefit improving fences to prevent damage to with their own policies, customs, and that additional funding could be riparian areas and increase riparian laws. For these reasons, we have generated for habitat improvement by an habitat quality and quantity. We expect determined that our working area being designated as critical habitat. the Pueblo to continue such relationship with the Pueblo would be Some funding sources may rank a conservation activity for the western maintained if they are excluded from project higher if the area is designated yellow-billed cuckoo based on the the designation of critical habitat for the as critical habitat. Tribes or Pueblos Pueblo’s commitment to natural western yellow-billed cuckoo. We view often seek additional sources of funding resource protection and enhancement this as a substantial benefit. in order to conduct wildlife-related Protection of river and riparian even if the southwestern willow conservation activities. Therefore, habitat resources remains an important flycatcher is delisted. having an area designated as critical component of the Pueblo’s culture and Benefits of Inclusion—San Ildefonso habitat could improve the chances of traditions. The Pueblo will continue to Pueblo receiving funding for western yellow- protect riparian habitat on tribal land billed cuckoo habitat-related projects. through its existing programs and As discussed above under Effects of agreements. Critical Habitat Designation Section 7 Benefits of Exclusion—San Ildefonso The long-term goal of riparian Consultation, Federal agencies, in Pueblo management on San Ildefonso Pueblo is consultation with the Service, must The benefits of excluding the Pueblo to make significant additions of wetland ensure that their actions are not likely from designated critical habitat are areas for breeding southwestern willow to jeopardize the continued existence of significant. We have determined that the flycatchers, as well as implement any listed species or result in the significant benefits that would be innovative restoration techniques, destruction or adverse modification of realized by foregoing the designation of decrease fire hazards by restoring native any designated critical habitat of such critical habitat on this area include: (1) vegetation, share information with other species. The difference in the outcomes Our deference to the Pueblo to develop restoration practitioners, use restoration of the jeopardy analysis and the adverse and implement conservation and projects in the education of the tribal modification analysis represents the natural resource management plans for community and surrounding regulatory benefit and costs of critical their lands and resources, which community, and provide a working and habitat. A critical habitat designation includes benefits to the western yellow- training environment for the people of requires Federal agencies to consult on billed cuckoo and its habitat that might the Pueblo. These efforts will also whether their activity would destroy or not otherwise occur; (2) the continuance provide benefit to the western yellow- adversely modify critical habitat to the and strengthening of our effective billed cuckoo. point where recovery could not be working relationships with the Pueblo Based on their traditional beliefs and achieved. Since listing, one consultation to promote the conservation of the ties to the bosque area, the Pueblo and conference for western yellow- western yellow-billed cuckoo and its continues to protect, conserve, and billed cuckoo occurred in 2016. The habitat; and (3) the maintenance of restore the riparian species and their consultation and conference was with effective partnerships with the Pueblo habitat. The Pueblo has invested Reclamation, who made a ‘‘no effect’’ and working in collaboration and ongoing time and effort to address the determination on the western yellow- cooperation to promote additional needs and recovery of the southwestern billed cuckoo and its proposed critical conservation of the western yellow- willow flycatcher and we have habitat in the Pojoaque Basin Regional billed cuckoo and their habitat. determined that, based on this history, Water System and Associated Educational benefits will be provided that the Pueblo will also invest time and Connected Actions Biological to the Pueblo lands if they are excluded effort in conservation for the western

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yellow-billed cuckoo. In addition, based with the critical habitat designation inclusion and will not cause the on the long term goals of restoring process, and is aware of the value of extinction of the species. additional wetland and native habitat, their lands for western yellow-billed Unit 37: NM–6A) Middle Rio Grande— the Pueblo has shown that it is cuckoo conservation, the educational Santa Ana Pueblo, NM managing its resources to meet its benefits of a western yellow-billed traditional and cultural needs, while cuckoo critical habitat designation are On Santa Ana Pueblo, we proposed addressing the needs of federally listed also minimized. 862 ac (349 ha) of critical habitat within species. The benefits of excluding these areas Sandoval County, New Mexico. The Proactive voluntary conservation from designation as critical habitat for entire area is excluded from the final efforts have and will continue to the western yellow-billed cuckoo are designation. promote the recovery of the western significant, and include encouraging the The Pueblo is an important land yellow-billed cuckoo. As mentioned continued development and manager in the Middle Rio Grande. The above, the Pueblo is an important land implementation of special management Pueblo of Santa Ana has developed and manager in the Upper Rio Grande Unit. measures such as enhancement, and maintained a long standing history of The commitments in the IRMP restoration activities that the Pueblo habitat projects and conservation that demonstrate the willingness of the plans for the future or is currently includes the southwestern willow Pueblo to work cooperatively with us implementing. These activities and flycatcher, Rio Grande silvery minnow, toward conservation efforts that will projects will allow the Pueblo to manage and the western yellow-billed cuckoo. benefit listed species. The Pueblo has their natural resources to benefit the The objective of their management committed to several ongoing or future Upper Rio Grande Unit and the western program is to protect, conserve, and management, restoration, enhancement, yellow-billed cuckoo, without the promote the resources associated with activities that may not occur with perception of Federal Government the southwestern willow flycatcher, critical habitat designation. Therefore, intrusion. This philosophy is also silvery minnow, and western yellow- we have determined that the results of consistent with our published policies billed cuckoo within the Pueblo’s these activities will promote long-term on Native American natural resource boundaries. Over the last 26 years, an protection and conserve the western management. The exclusion of this area estimated 3 formal consultations have yellow-billed cuckoo and its habitat will likely also provide additional occurred and all have been associated within the Pueblo lands. The benefits of benefits to the species that would not with either the Rio Grande silvery excluding this area from critical habitat otherwise be available to encourage and minnow or southwestern willow will encourage the continued maintain cooperative working flycatcher. No consultations for western cooperation and development of data- relationships. We find that the benefits yellow-billed cuckoo have occurred for sharing and management plans. of excluding this area from critical actions on Santa Ana Pueblo lands. The habitat designation outweigh the consultation history, surveys, and Benefits of Exclusion Outweigh the benefits of including this area. conservation, restoration and Benefits of Inclusion—San Ildefonso management information historically Pueblo Exclusion Will Not Result in Extinction submitted by the Pueblo documents that The benefits of including the Pueblo of the Species—San Ildefonso Pueblo meaningful collaborative and in the critical habitat designation are We have determined that exclusion of cooperative work for listed species and limited to the incremental benefits the Pueblo land from the designation of their habitat that have occurred within gained through the regulatory critical habitat will not result in their lands. These commitments requirement to consult under section 7 extinction of the western yellow-billed demonstrate the willingness of the and consideration of the need to avoid cuckoo. We base this determination on Pueblo to work cooperatively with us adverse modification of critical habitat, several points. Firstly, as discussed toward conservation efforts that will agency and educational awareness, above under Effects of Critical Habitat benefit the western yellow-billed potential additional grant funding, and Designation Section 7 Consultation, if a cuckoo. The Pueblo has committed to the implementation of other law and Federal action or permitting occurs, the several ongoing or future management, regulations. The benefits of including known presence of western yellow- restoration, enhancement, and survey the Pueblo in critical habitat are low, billed cuckoos or their habitat would activities that may not occur with and are limited to minor educational require evaluation under the jeopardy critical habitat designation. The Santa benefits. However, due to the rarity of standard of section 7 of the Act, even Ana Pueblo has completed restoration Federal actions resulting in formal absent the designation of critical habitat, and conservation efforts, including a section 7 consultations, the benefits of and thus will protect the species against Safe Harbor Agreement, for the efforts a critical habitat designation are extinction. Secondly, the Pueblo is associated with the southwestern minimized. The benefits of consultation committed to protecting and managing willow flycatcher, and our ongoing are further minimized because any Pueblo lands and species found on conservation partnership. We have conservation measures which may have those lands according to their tribal and determined that the management resulted from consultation are already cultural management plans and natural practices of Santa Ana Pueblo fulfills provided through other mechanisms, resource management objectives, which our criteria for exclusion. such as (1) the conservation benefits to provide conservation benefits for the the western yellow-billed cuckoo and species and its habitat. In short, the Benefits of Inclusion—Santa Ana their habitat from implementation of the Pueblo is committed to greater Pueblo Pueblo’s management plans; and (2) the conservation measures on their land As discussed above under Effects of maintenance of effective collaboration than would be available through the Critical Habitat Designation Section 7 and cooperation to promote the designation of critical habitat. Consultation, Federal agencies, in conservation of the southwestern Accordingly, we have determined that consultation with the Service, must willow flycatcher and western yellow- the 1,032 ac (418 ha) of San Ildefonso ensure that their actions are not likely billed cuckoo and their habitat. Because lands be excluded under subsection to jeopardize the continued existence of the Pueblo has developed a specific 4(b)(2) of the Act because the benefits of any listed species or result in the management plan, has been involved exclusion outweigh the benefits of destruction or adverse modification of

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any designated critical habitat of such cuckoo and its habitat that might not and consideration of the need to avoid species. The difference in the outcomes otherwise occur; (2) the continuance adverse modification of critical habitat, of the jeopardy analysis and the adverse and strengthening of our effective agency and educational awareness, modification analysis represents the working relationships with the Pueblo potential additional grant funding, and regulatory benefit and costs of critical to promote the conservation of the the implementation of other law and habitat. A critical habitat designation western yellow-billed cuckoo and its regulations. However, due to the rarity requires Federal agencies to consult on habitat; and (3) the maintenance of of Federal actions resulting in formal whether their activity would destroy or effective partnerships with the Pueblo section 7 consultations (an estimated 3 adversely modify critical habitat to the and working in collaboration and formal consultations over the last 26 point where recovery could not be cooperation to promote additional years and all associated with either Rio achieved. conservation of the western yellow- Grande silvery minnow or southwestern Another possible benefit is that the billed cuckoo and their habitat. willow flycatcher), the benefits of a designation of critical habitat can serve We have determined that Santa Ana critical habitat designation are to educate the public regarding the Pueblo should be the governmental minimized. In addition, the benefits of potential conservation value of an area, entity to manage and promote the consultation are further minimized and this may focus and contribute to conservation of the western yellow- because any conservation measures conservation efforts by other parties by billed cuckoo on their land. In which may have resulted from clearly delineating areas of high comments submitted on October 21, consultation are already provided conservation value for certain species. 2014, the Santa Ana Pueblo indicated through other mechanisms, such as (1) Any information about the western that they would discourage designation the conservation benefits to the western yellow-billed cuckoo and its habitat that of critical habitat on their lands. During yellow-billed cuckoo and their habitat reaches a wide audience, including our discussions with Santa Ana Pueblo from implementation of the Pueblo’s other parties engaged in conservation in development of this final designation, management plans; and (2) the activities, would be considered it became clear to the Service that a maintenance of effective collaboration valuable. However, the Pueblo is critical habitat designation on Santa and cooperation to promote the already working with the Service to Ana land would be viewed as conservation of the southwestern address the habitat needs of the species. disrespectful and an intrusion on their willow flycatcher and western yellow- For these reasons, then, we have sovereign abilities to manage natural billed cuckoo and their habitat. determined that designation of critical resources in accordance with their own The Pueblo will continue to protect habitat would have few, if any, policies, customs, and laws. The its bosque habitat and does not intend additional benefits beyond those that perceived restrictions of a critical to develop the areas we proposed as will result from continued consultation habitat designation could have a more western yellow-billed cuckoo critical for the presence of the species. damaging effect to coordination efforts, habitat. Moreover, under the historical Another possible benefit of the possibly preventing actions that might and present management program, the designation of critical habitat is that it maintain, improve, or restore habitat for Pueblo has conducted a variety of may also affect the implementation of the western yellow-billed cuckoo and voluntary measures, restoration projects, Federal laws, such as the Clean Water other endangered or threatened species monitoring programs and management Act. These laws require analysis of the like the southwestern willow flycatcher actions to conserve riparian vegetation, potential for proposed projects to and the Rio Grande silvery minnow. including protecting riparian habitat significantly affect the environment. As part of our working relationship from fire, maintaining native vegetation, Critical habitat may signal the presence with the Pueblo, conservation benefits, completing surveys, working with BIA, of sensitive habitat that could otherwise including listed species’ surveys, nest Reclamation, USFS, the State of New be missed in the review process for and/or habitat monitoring, and/or Mexico, and the Service to acquire these other environmental laws. habitat restoration and enhancement funding for restoration projects, and Finally, there is the possible benefit have been possible. By excluding preventing habitat fragmentation. that additional funding could be critical habitat from the Santa Ana For these reasons, we have generated for habitat improvement by an Pueblo, we have determined that our determined that our working area being designated as critical habitat. working relationship with the Pueblo relationship will be better maintained if Some funding sources may rank a would be maintained. We view this as Santa Ana Pueblo was excluded from project higher if the area is designated a substantial benefit. the designation of western yellow-billed as critical habitat. Tribes or pueblos Therefore, we have determined that cuckoo critical habitat. We view this as often seek additional sources of funding the results of these activities will a substantial benefit since we have in order to conduct wildlife-related promote long-term protection and developed a cooperative working conservation activities. Therefore, conserve the western yellow-billed relationship for the mutual benefit of having an area designated as critical cuckoo and its habitat within the Pueblo endangered and threatened species, habitat could improve the chances of lands. The benefits of excluding this including the western yellow-billed receiving funding for western yellow- area from critical habitat will encourage cuckoo. billed cuckoo habitat-related projects. the continued cooperation and In summary, the benefits of including development of data-sharing and the Pueblo in critical habitat are low, Benefits of Exclusion—Santa Ana management plans. and are limited to insignificant Pueblo educational benefits. The benefits of The benefits of excluding the Pueblo Benefits of Exclusion Outweigh the excluding these areas from designation from designated critical habitat are Benefits of Inclusion—Santa Ana as critical habitat for the western significant and include: (1) Our Pueblo yellow-billed cuckoo are significant, deference to the Pueblo to develop and The benefits of including the Pueblo and include encouraging the continued implement conservation and natural in the critical habitat designation are development and implementation of resource management plans for their limited to the incremental benefits special management measures such as lands and resources, which includes gained through the regulatory monitoring, surveys, enhancement, and benefits to the western yellow-billed requirement to consult under section 7 restoration activities that the Pueblo

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plans for the future or is currently restoration of habitat, and working in a be missed in the review process for implementing. These activities and meaningful, collaborative, and these other environmental laws. projects will allow the Pueblo to manage cooperative approach toward listed Finally, there is the possible benefit their natural resources to benefit the species conservation. To document this that additional funding could be Middle Rio Grande Unit and the the Santo Domingo Tribe has developed generated for habitat improvement by an western yellow-billed cuckoo, without a Western Yellow-billed Cuckoo area being designated as critical habitat. the perception of Federal Government Management Plan. We have determined Some funding sources may rank a intrusion. This philosophy is also that the plan fulfills our criteria for project higher if the area is designated consistent with our published policies exclusion. Under the comprehensive as critical habitat. Tribes or pueblos on Native American natural resource Western Yellow-billed Cuckoo often seek additional sources of funding management. The exclusion of this area Management Plan, the Santo Domingo in order to conduct wildlife-related will likely also provide additional Tribe has conducted a variety of conservation activities. Therefore, benefits to the species that would not voluntary measures, restoration projects, having an area designated as critical otherwise be available to encourage and and management actions to conserve habitat could improve the chances of maintain cooperative working riparian vegetation, including native receiving funding for western yellow- relationships. We find that the benefits vegetation enhancement, promotion of billed cuckoo habitat-related projects. of excluding this area from critical overbank flooding, pollution Benefits of Exclusion—Santo Domingo habitat designation outweigh the monitoring, species surveys and Tribe benefits of including this area. creating side channels, oxbows and wetlands. Despite conducting these The benefits of excluding the Tribe Exclusion Will Not Result in Extinction activities, the consultation history with from designated critical habitat include: of the Species—Santa Ana Pueblo the Service has been minimal (1 formal (1) Our deference to the Pueblo to We have determined that exclusion of consultation involving the Rio Grande develop and implement conservation the Pueblo land will not result in silvery minnow dating back to 1995). and natural resource management plans extinction of the species. First, activities for their lands and resources, which on this area that may affect the western Benefits of Inclusion—Santo Domingo includes benefits to the western yellow- yellow-billed cuckoo will require Tribe billed cuckoo and its habitat that might consultation under section 7 of the Act. As discussed above under Effects of not otherwise occur; (2) the continuance Section 7(a)(2) of the Act requires Critical Habitat Designation Section 7 and strengthening of our effective Federal agencies to ensure that activities Consultation, Federal agencies, in working relationships with the Pueblo they authorize, fund, or carry out are not consultation with the Service, must to promote the conservation of the likely to jeopardize the continued ensure that their actions are not likely western yellow-billed cuckoo and its existence of listed species. Therefore, to jeopardize the continued existence of habitat; and (3) the maintenance of even without critical habitat designation any listed species or result in the effective partnerships with the Pueblo on this land, activities that occur on this destruction or adverse modification of and working in collaboration and land cannot jeopardize the continued any designated critical habitat of such cooperation to promote additional existence of the western yellow-billed species. The difference in the outcomes conservation of the western yellow- cuckoo. Second, the Pueblo is of the jeopardy analysis and the adverse billed cuckoo and their habitat. committed to protecting and managing modification analysis represents the We have determined that Santo Pueblo lands and species found on regulatory benefit and costs of critical Domingo Tribe should be the those lands according to their tribal and habitat. A critical habitat designation governmental entity to manage and cultural management plans and natural requires Federal agencies to consult on promote the conservation of the western resource management objectives, which whether their activity would destroy or yellow-billed cuckoo on their land. The provide conservation benefits for the adversely modify critical habitat to the designation of critical habitat on Santo species and its habitat. In short, the point where recovery could not be Domingo would be expected to have an Pueblo is committed to greater achieved. adverse impact on our working conservation measures on their land Another possible benefit is that the relationship. From comments we than would be available through the designation of critical habitat can serve received from Santo Domingo Pueblo on designation of critical habitat. to educate the public regarding the September 16, 2019, on the proposed Accordingly, we have determined that potential conservation value of an area, designation of critical habitat for the the 862 ac (349 ha) of Pueblo lands of and this may focus and contribute to western yellow-billed cuckoo, it became Santa Ana be excluded under conservation efforts by other parties by clear to the Service that critical habitat subsection 4(b)(2) of the Act because the clearly delineating areas of high would be viewed as an intrusion on benefits of exclusion outweigh the conservation value for certain species. their sovereign abilities to manage benefits of inclusion and will not cause Any information about the western natural resources in accordance with the extinction of the species. yellow-billed cuckoo and its habitat that their own policies, customs, and laws. reaches a wide audience, including The perceived restrictions of a critical Unit 37 (NM–6A) Middle Rio Grande— other parties engaged in conservation habitat designation could have a more Santo Domingo Tribe, NM activities, would be considered damaging effect to coordination efforts, On Santo Domingo Tribal Lands, we valuable. possibly preventing actions that might proposed 1,872 ac (758 ha) of critical Another possible benefit of the maintain, improve, or restore habitat for habitat within Sandoval County, New designation of critical habitat is that it the western yellow-billed. Mexico. We are excluding the Santo may also affect the implementation of We find that other conservation Domingo Tribe from this final Federal laws, such as the Clean Water benefits are provided to the Middle Rio designation. The Tribe is an important Act. These laws require analysis of the Grande Unit and the western yellow- land manager in the Middle Rio Grande. potential for proposed projects to billed cuckoo and its habitat by Their history of conservation includes significantly affect the environment. excluding the Tribe from the completing surveys, providing for Critical habitat may signal the presence designation. For example, as part of conservation, management, and of sensitive habitat that could otherwise maintaining a cooperative working

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relationship with the Tribe, agency and educational awareness, Unit 37 (NM–6A) Middle Rio Grande— conservation benefits, including listed potential additional grant funding, and Cochiti Pueblo, NM species’ surveys, nest and/or habitat the implementation of other law and We proposed 1,458 ac (590 ha) of monitoring, and/or habitat restoration regulations. However, due to the rarity Cochiti Pueblo as critical habitat along and enhancement have been possible as of Federal actions resulting in formal the Rio Grande. We excluding all of evidenced by the development of the section 7 consultations (one formal Cochiti Pueblo lands from the final Western Yellow-billed Cuckoo consultation since 1995), the benefits of designation. Management Plan and their history of a critical habitat designation are The Cochiti Pueblo has a completing bird surveys on their tribal minimized. In addition, the benefits of demonstrated productive working lands for more than ten years. The consultation are further minimized relationship with the Service in objective of their Management Plan is to because any conservation measures conservation of listed species and we protect and improve habitat for all avian which may have resulted from are aware of Cochiti Pueblo’s history of species and wildlife on their tribal consultation are already provided conducting a variety of voluntary lands. IN comments submitted on through other mechanisms, such as (1) measures, restoration projects, and September 16, 2019, the Santo Domingo the conservation benefits to the western management actions to conserve Tribe indicated that it opposes the yellow-billed cuckoo and their habitat riparian vegetation, including the designation of critical habitat. The Santo from implementation of the Tribe’s prevention of riparian habitat from fire, Domingo Tribe would like to manage Western Yellow-billed Cuckoo maintaining native vegetation, and natural resources in accordance with Management Plan; and (2) the preventing habitat fragmentation. These their own policies, customs, and laws. measures shows the commitment and For these reasons, we have determined maintenance of effective collaboration history of activities being implemented that our working relationship with the and cooperation to promote the by the Pueblo for meaningful, Tribe would be maintained if they are conservation of the western yellow- excluded from the designation of critical billed cuckoo and its habitat. We view collaborative, and cooperative work for habitat for the western yellow-billed these as substantial benefits since we conservation of listed species. This cuckoo. We view this as a substantial have developed a cooperative working history demonstrates the willingness of benefit. relationship with the Tribe for the the Pueblo to work cooperatively with Proactive voluntary conservation mutual benefit of endangered and us toward conservation efforts that will efforts have and will continue to threatened species, including the benefit the western yellow-billed promote the recovery of the western western yellow-billed cuckoo. We find cuckoo. The Pueblo has committed to yellow-billed cuckoo. As mentioned that the benefits of excluding this area several ongoing or future management, above, the Tribe is an important land from critical habitat designation restoration, enhancement, and survey manager in the Middle Rio Grande Unit. outweigh the benefits of including this activities on their lands. However, The history in completing surveys, area. dating back to 1989, there have been just conservation, restoration and two formal consultations and they were management documents that Exclusion Will Not Result in Extinction associated with the Rio Grande silvery meaningful collaborative and of the Species—Santo Domingo Tribe minnow and Bald eagle (Haliaeetus leucocephalus). cooperative work for listed species and We have determined that exclusion of their habitat will continue within their the Tribal land will not result in Benefits of Inclusion—Cochiti Pueblo lands. These commitments demonstrate extinction of the species. Firstly, as the willingness of the Tribe to work As discussed above under Effects of discussed above under Effects of Critical Critical Habitat Designation Section 7 cooperatively with us toward Habitat Designation Section 7 conservation efforts that will benefit the Consultation, Federal agencies, in Consultation, if a Federal action or consultation with the Service, must western yellow-billed cuckoo. The Tribe permitting occurs, the known presence has committed to several ongoing or ensure that their actions are not likely of western yellow-billed cuckoos or future management, restoration, to jeopardize the continued existence of their habitat would require evaluation enhancement, and survey activities that any listed species or result in the under the jeopardy standard of section may not occur with critical habitat destruction or adverse modification of 7 of the Act, even absent the designation designation. Therefore, we have any designated critical habitat of such determined that the results of these of critical habitat, and thus will protect species. The difference in the outcomes activities will promote long-term the species against extinction. Secondly, of the jeopardy analysis and the adverse protection and conserve the western the Tribe is committed to protecting and modification analysis represents the yellow-billed cuckoo and its habitat managing Tribal lands and species regulatory benefit and costs of critical within the Tribal lands. The benefits of found on those lands according to their habitat. A critical habitat designation excluding this area from critical habitat tribal and cultural management plans requires Federal agencies to consult on will encourage the continued and natural resource management whether their activity would destroy or cooperation and development of data- objectives, which provide conservation adversely modify critical habitat to the sharing and management plans. benefits for the species and its habitat. point where recovery could not be In short, the Tribe is committed to achieved. Benefits of Exclusion Outweigh the greater conservation measures on their Another possible benefit is that the Benefits of Inclusion—Santo Domingo land than would be available through designation of critical habitat can serve Tribe the designation of critical habitat. to educate the public regarding the The benefits of including the Tribe in Accordingly, we have determined that potential conservation value of an area, the critical habitat designation are the 1,872 ac (758 ha) of Tribal lands of and this may focus and contribute to limited to the incremental benefits Santo Domingo are excluded under conservation efforts by other parties by gained through the regulatory subsection 4(b)(2) of the Act because the clearly delineating areas of high requirement to consult under section 7 benefits of exclusion outweigh the conservation value for certain species. and consideration of the need to avoid benefits of inclusion and will not cause Any information about the western adverse modification of critical habitat, the extinction of the species. yellow-billed cuckoo and its habitat that

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reaches a wide audience, including we were informed that the Pueblo involved with the critical habitat other parties engaged in conservation prefers exclusion of its lands from designation process, and is aware of the activities, would be considered critical habitat and the ability to manage value of their lands for western yellow- valuable. However, Cochiti Pueblo is their lands as appropriate for their billed cuckoo conservation, the already working with the Service to cultural needs and traditional values. educational benefits of a western address the habitat needs of the species. Proactive voluntary conservation efforts yellow-billed cuckoo critical habitat For these reasons, then, we have have and will continue to promote the designation are also minimized. determined that designation of critical recovery of the western yellow-billed By allowing the Pueblo to implement habitat would have few, if any, cuckoo. As mentioned above, the Pueblo its own resource conservation programs, additional benefits beyond those that is an important land manager in the it gives the Pueblo the opportunity to will result from continued consultation Middle Rio Grande Unit and historically manage their natural resources to for the presence of the species due to has provided for conservation of listed benefit riparian habitat for the western the implementation of the Pueblo’s species including the western yellow- yellow-billed cuckoo, without the voluntary conservation measures, billed cuckoo. The Pueblo has perception of Federal Government restoration projects, and management. committed to several ongoing or future intrusion. The exclusion of these areas Another possible benefit of the management, restoration, enhancement, will likely also provide additional designation of critical habitat is that it and survey activities that may not occur benefits to the western yellow-billed may also affect the implementation of with critical habitat designation. cuckoo and other listed species that Federal laws, such as the Clean Water Therefore, we have determined that the would not otherwise be available Act. These laws require analysis of the results of these activities will promote without the Service’s maintaining a potential for proposed projects to long-term protection and conserve the cooperative working relationships with significantly affect the environment. western yellow-billed cuckoo and its the Pueblo. The actions taken by the Critical habitat may signal the presence habitat within the Pueblo lands. The Pueblo to manage and protect habitat of sensitive habitat that could otherwise benefits of excluding this area from needed for western yellow-billed be missed in the review process for critical habitat will encourage the cuckoo are above those conservation these other environmental laws. continued cooperation and development measures which may be required if the Finally, there is the possible benefit of data-sharing and management plans. area was designated as critical habitat. that additional funding could be We view this as a substantial benefit. As a result, we have determined that the generated for habitat improvement by an benefits of excluding these tribal lands area being designated as critical habitat. Benefits of Exclusion Outweigh the from critical habitat designation Some funding sources may rank a Benefits of Inclusion—Cochiti Pueblo outweigh the benefits of including these project higher if the area is designated The benefits of including the Pueblo areas. We find that the benefits of as critical habitat. Tribes or pueblos in the critical habitat designation are excluding this area from critical habitat often seek additional sources of funding limited to the incremental benefits designation outweigh the benefits of in order to conduct wildlife-related gained through the regulatory including this area. conservation activities. Therefore, requirement to consult under section 7 having an area designated as critical and consideration of the need to avoid Exclusion Will Not Result in Extinction habitat could improve the chances of adverse modification of critical habitat, of the Species—Cochiti Pueblo receiving funding for western yellow- agency and educational awareness, We have determined that exclusion of billed cuckoo habitat-related projects. potential additional grant funding, and the Pueblo land will not result in the implementation of other law and extinction of the species. We base this Benefits of Exclusion—Cochiti Pueblo regulations. However, due to the rarity determination on several points. Firstly, The benefits of excluding Cochiti of Federal actions resulting in formal as discussed above under Effects of Pueblo from designated critical habitat section 7 consultations (two formal Critical Habitat Designation Section 7 include: (1) Our deference to the Pueblo consultations since 1989), the benefits Consultation, if a Federal action or to develop and implement conservation of a critical habitat designation are permitting occurs, the known presence and natural resource management plans minimized. In addition, the benefits of of western yellow-billed cuckoos or for their lands and resources, which consultation are further minimized their habitat would require evaluation includes benefits to the western yellow- because any conservation measures under the jeopardy standard of section billed cuckoo and its habitat that might which may have resulted from 7 of the Act, even absent the designation not otherwise occur; (2) the continuance consultation are already provided of critical habitat, and thus will protect and strengthening of our effective through other mechanisms, such as (1) the species against extinction. Second, working relationships with the Pueblo the conservation benefits to the western the Pueblo is committed to protecting to promote the conservation of the yellow-billed cuckoo and their habitat and managing Pueblo lands and the western yellow-billed cuckoo and its from actions being implemented by the species found on those lands according habitat; and (3) the maintenance of Pueblo; and (2) the maintenance of to their tribal, cultural, and natural effective partnerships with the Pueblo effective collaboration and cooperation resource management history, which and working in collaboration and to promote the conservation of the provide conservation benefits for the cooperation to promote additional western yellow-billed cuckoo and its species and its habitat. conservation of the western yellow- habitat. We view these as substantial In short, Cochiti Pueblo is committed billed cuckoo and their habitat. benefits since we have developed a to greater conservation measures on We have determined that Cochiti cooperative working relationship with their land than would be available Pueblo should be the governmental the Pueblo for the mutual benefit of through the designation of critical entity to manage and promote the endangered and threatened species, habitat. We have determined that this conservation of the western yellow- including the western yellow-billed commitment accomplishes greater billed cuckoo on their land. During our cuckoo. conservation than would be available coordination with Cochiti Pueblo on Because the Pueblo has developed a through the implementation of a February 25, 2020, during the history of conservation activities for the designation of critical habitat on a development of this final designation, western yellow-billed cuckoo, has been project-by-project basis. Accordingly,

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we have determined that 1,458 ac (590 yellow-billed cuckoo and its habitat that excluding the Pueblo from the ha) of the Cochiti Pueblo lands be reaches a wide audience, including designation. Comments submitted by excluded from the final designation other parties engaged in conservation San Felipe Pueblo on December 19, under subsection 4(b)(2) of the Act activities, would be considered 2014, informed us that a critical habitat because the benefits of exclusion valuable. However, the Pueblo is designation would limit the ability of outweigh the benefits of inclusion and already working with the Service to the Pueblo to manage their lands and will not cause the extinction of the address the habitat needs of the species. restrict their cultural needs and species. For these reasons, then, we have traditional values, and recommended determined that designation of critical exclusion. For these reasons, we have Unit 37 (NM–6A) Middle Rio Grande— habitat would have few, if any, determined that our working San Felipe Pueblo, NM additional benefits beyond those that relationship with the Pueblo would be On San Felipe Pueblo, we proposed will result from continued consultation better maintained if they are excluded 2,368 ac (958 ha) of critical habitat for the presence of the species. from the designation of critical habitat within Sandoval County, New Mexico. Another possible benefit of the for the western yellow-billed cuckoo. We are excluding the entire area from designation of critical habitat is that it We view this as a substantial benefit. the final designation of critical habitat. may also affect the implementation of The perceived restrictions of a critical The San Felipe Pueblo has a Federal laws, such as the Clean Water habitat designation could have a more demonstrated productive working Act. These laws require analysis of the damaging effect to coordination efforts, relationship with the Service in potential for proposed projects to possibly preventing actions that might conservation of listed species and we significantly affect the environment. maintain, improve, or restore habitat for are aware of San Felipe Pueblo’s history Critical habitat may signal the presence the western yellow-billed cuckoo and of conducting a variety of voluntary of sensitive habitat that could otherwise other endangered or threatened species measures, restoration projects, and be missed in the review process for like the southwestern willow flycatcher. management actions to conserve these other environmental laws. Proactive voluntary conservation riparian vegetation, including Finally, there is the possible benefit efforts have and will continue to conducting listed species’ surveys, nest that additional funding could be promote the recovery of the western and habitat monitoring, and habitat generated for habitat improvement by an yellow-billed cuckoo. As mentioned restoration and enhancement through area being designated as critical habitat. above, the Pueblo is an important land the Pueblo’s development and Some funding sources may rank a manager in the Middle Rio Grande Unit. implementation of their Wildlife project higher if the area is designated The consultation history, surveys, and Management Plan specific to the as critical habitat. Tribes or pueblos conservation, restoration and western yellow-billed cuckoo. The often seek additional sources of funding management information historically objective of this plan is to protect, in order to conduct wildlife-related submitted by the Pueblo documents that conserve, and promote the management conservation activities. Therefore, meaningful collaborative and of the western yellow-billed cuckoo and having an area designated as critical cooperative work for listed species and their associated habitats within the habitat could improve the chances of their habitat will continue within their Pueblo’s boundaries. The development receiving funding for western yellow- lands. These commitments demonstrate and implementation of the plan billed cuckoo habitat-related projects. the willingness of the Pueblo to work demonstrates the Pueblo’s willingness Benefits of Exclusion—San Felipe cooperatively with us toward to work cooperatively with the Service Pueblo conservation efforts that will benefit the and other partners on conservation western yellow-billed cuckoo. Overall, efforts that will benefit the western We have determined that significant the commitments toward management yellow-billed cuckoo. benefits would be realized by foregoing of western yellow-billed cuckoo habitat the designation of critical habitat. These by the Pueblo likely accomplish greater Benefits of Inclusion—San Felipe benefits include: (1) Our deference to conservation than would be available Pueblo the Pueblo to develop and implement through the implementation of a As discussed above under Effects of conservation and natural resource designation of critical habitat on a Critical Habitat Designation Section 7 management plans for their lands and project-by-project basis. Consultation, Federal agencies, in resources, which includes benefits to The Pueblo has committed to several consultation with the Service, must the western yellow-billed cuckoo and its ongoing or future management, ensure that their actions are not likely habitat that might not otherwise occur; restoration, enhancement, and survey to jeopardize the continued existence of (2) the continuance and strengthening of activities that may not occur with any listed species or result in the our effective working relationships with critical habitat designation. Therefore, destruction or adverse modification of the Pueblo to promote the conservation we have determined that the results of any designated critical habitat of such of the western yellow-billed cuckoo and these activities will promote long-term species. The difference in the outcomes its habitat; and (3) the maintenance of protection and conserve the western of the jeopardy analysis and the adverse effective partnerships with the Pueblo yellow-billed cuckoo and its habitat modification analysis represents the and working in collaboration and within the Pueblo lands. The benefits of regulatory benefit and costs of critical cooperation to promote additional excluding this area from critical habitat habitat. conservation of the western yellow- will encourage the continued Another possible benefit is that the billed cuckoo and their habitat. cooperation and development of data- designation of critical habitat can serve We have determined that San Felipe sharing and management plans. to educate the public regarding the Pueblo should be the governmental potential conservation value of an area, entity to manage and promote the Benefits of Exclusion Outweigh the and this may focus and contribute to conservation of the western yellow- Benefits of Inclusion—San Felipe conservation efforts by other parties by billed cuckoo on their land due to the Pueblo clearly delineating areas of high additional conservation benefits that The benefits of including the Pueblo conservation value for certain species. would be provided for the western in the critical habitat designation are Any information about the western yellow-billed cuckoo and its habitat by limited to the incremental benefits

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gained through the regulatory of excluding this area from critical ensure that their actions are not likely requirement to consult under section 7 habitat designation outweigh the to jeopardize the continued existence of and consideration of the need to avoid benefits of including this area. any listed species or result in the adverse modification of critical habitat, destruction or adverse modification of Exclusion Will Not Result in Extinction agency and educational awareness, any designated critical habitat of such of the Species—San Felipe Pueblo potential additional grant funding, and species. The difference in the outcomes the implementation of other law and We have determined that exclusion of of the jeopardy analysis and the adverse regulations. However, as discussed the Pueblo land will not result in modification analysis represents the above, we have determined that these extinction of the species. Firstly, as regulatory benefit and costs of critical benefits are minimized because they are discussed above under Effects of Critical habitat. A critical habitat designation provided through other mechanisms, Habitat Designation Section 7 requires Federal agencies to consult on such as (1) the conservation benefits to Consultation, if a Federal action or whether their activity would destroy or the western yellow-billed cuckoo and permitting occurs, the known presence adversely modify critical habitat to the their habitat from implementation the of western yellow-billed cuckoos or point where recovery could not be Pueblo’s Wildlife Management Plan; their habitat would require evaluation achieved. Another possible benefit is and (2) the maintenance of effective under the jeopardy standard of section that the designation of critical habitat collaboration and cooperation to 7 of the Act, even absent the designation can serve to educate the public promote the conservation of the western of critical habitat, and thus will protect regarding the potential conservation yellow-billed cuckoo and their habitat. the species against extinction. Secondly, value of an area, and this may focus and The Pueblo will continue to protect its the Pueblo is committed to protecting contribute to conservation efforts by bosque habitat and does not intend to and managing Pueblo lands and species other parties by clearly delineating areas develop the areas we proposed as found on those lands according to their of high conservation value for certain western yellow-billed cuckoo critical tribal and cultural management plans species. Any information about the habitat. Moreover, under the and natural resource management western yellow-billed cuckoo and its comprehensive Wildlife Management objectives, which provide conservation habitat that reaches a wide audience, Plan, San Felipe Pueblo has conducted benefits for the species and its habitat. including other parties engaged in a variety of voluntary measures, In short, the Pueblo is committed to conservation activities, would be restoration projects, and management greater conservation measures on their considered valuable. However, the actions to conserve riparian vegetation, land than would be available through Pueblo is already working with the including the prevention of riparian the designation of critical habitat. Service to address the habitat needs of habitat from fire, maintaining native Accordingly, we have determined that the species. For these reasons, then, we vegetation, and preventing habitat the Pueblo lands of San Felipe should have determined that designation of fragmentation. be excluded under subsection 4(b)(2) of critical habitat would have few, if any, We have determined that our working the Act because the benefits of additional benefits beyond those that relationship will be better maintained if exclusion outweigh the benefits of will result from continued consultation San Felipe Pueblo was excluded from inclusion and will not cause the for the presence of the species. the designation of western yellow-billed extinction of the species. Therefore, we Another possible benefit of the cuckoo critical habitat. We view this as are excluding the 2,368 ac (958 ha) of designation of critical habitat is that it a substantial benefit since we have Pueblo lands of San Felipe of Unit 37 may also affect the implementation of developed a cooperative working NM–6A from the final critical habitat Federal laws, such as the Clean Water relationship for the mutual benefit of designation. Act. These laws require analysis of the endangered and threatened species, potential for proposed projects to including the western yellow-billed Unit 37 (NM–6B) Middle Rio Grande— significantly affect the environment. cuckoo. Isleta Pueblo, NM Critical habitat may signal the presence In summary, the benefits of including On Isleta Pueblo, approximately 2,165 of sensitive habitat that could otherwise the Pueblo in critical habitat are low, ac (876 ha) of critical habitat was be missed in the review process for and are limited to insignificant identified within Bernalillo County, these other environmental laws. educational benefits. The benefits of New Mexico. We are excluding the Finally, there is the possible benefit excluding these areas from designation entire area from critical habitat. The that additional funding could be as critical habitat for the western Isleta Pueblo have developed and generated for habitat improvement by an yellow-billed cuckoo are significant, implemented a Riverine Management area being designated as critical habitat. and include encouraging the continued Plan for conservation of riparian Some funding sources may rank a development and implementation of resources on their lands (Isleta Pueblo project higher if the area is designated special management measures such as 2015, entire). We have determined that as critical habitat. Tribes or pueblos monitoring, surveys, enhancement, and the Isleta Riverine Management Plan often seek additional sources of funding restoration activities that the Pueblo fulfills our criteria for exclusion and in order to conduct wildlife-related plans for the future or is currently includes measures to maintain, conservation activities. Therefore, implementing. These activities and improve, or restore habitat for the having an area designated as critical projects will allow the Pueblo to manage western yellow-billed cuckoo and other habitat could improve the chances of their natural resources to benefit the endangered or threatened species like receiving funding for western yellow- Middle Rio Grande Unit and the the southwestern willow flycatcher, billed cuckoo habitat-related projects. western yellow-billed cuckoo, without silvery minnow, and New Mexico Benefits of Exclusion—Isleta Pueblo the perception of Federal Government meadow jumping mouse. intrusion. The exclusion of this area The benefits of excluding the Pueblo will likely also provide additional Benefits of Inclusion—Isleta Pueblo from designated critical habitat are benefits to the species that would not As discussed above under Effects of significant and include: (1) Our otherwise be available to encourage and Critical Habitat Designation Section 7 deference to the Pueblo to develop and maintain cooperative working Consultation, Federal agencies, in implement conservation and natural relationships. We find that the benefits consultation with the Service, must resource management plans for their

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lands and resources, which includes their associated habitats within the vegetation, and preventing habitat benefits to the western yellow-billed Pueblo’s boundaries. As mentioned fragmentation. For these reasons, we cuckoo and its habitat that might not above, the Pueblo is an important land have determined that our working otherwise occur; (2) the continuance manager in the Middle Rio Grande Unit. relationship will be better maintained if and strengthening of our effective The consultation history, surveys, and Isleta Pueblo was excluded from the working relationships with the Pueblo conservation, restoration and designation of western yellow-billed to promote the conservation of the management information historically cuckoo critical habitat. We view this as western yellow-billed cuckoo and its submitted by the Pueblo documents that a substantial benefit since we have habitat; and (3) the maintenance of meaningful collaborative and developed a cooperative working effective partnerships with the Pueblo cooperative work for listed species and relationship for the mutual benefit of and working in collaboration and their habitat will continue within their endangered and threatened species, cooperation to promote additional lands. These commitments demonstrate including the western yellow-billed conservation of the western yellow- the willingness of the Pueblo to work cuckoo. billed cuckoo and their habitat. cooperatively with us toward In summary, the benefits of including We have determined that Isleta conservation efforts that will benefit the the Pueblo in critical habitat are low, Pueblo should be the governmental western yellow-billed cuckoo. The and are limited to insignificant entity to manage and promote the Pueblo has committed to several educational benefits. The benefits of conservation of the western yellow- ongoing or future management, excluding these areas from designation billed cuckoo on their land due to the restoration, enhancement, and survey as critical habitat for the western additional conservation benefits that activities that may not occur with yellow-billed cuckoo are significant, would be provided for the western critical habitat designation. Therefore, and include encouraging the continued yellow-billed cuckoo and its habitat by we have determined that the results of development and implementation of excluding the Pueblo from the these activities will promote long-term special management measures such as designation. In comments received from protection and conserve the western monitoring, surveys, enhancement, and the Isleta Pueblo on January 14, 2015, yellow-billed cuckoo and its habitat restoration activities that the Pueblo and July 17, 2020, we were informed within the Pueblo lands. The benefits of plans for the future or is currently that critical habitat would be viewed as excluding this area from critical habitat implementing. These activities and an intrusion on their sovereign abilities will encourage the continued projects will allow the Pueblo to manage to manage natural resources in cooperation and development of data- their natural resources to benefit the accordance with their own policies, sharing and management plans. Middle Rio Grande Unit and the customs, and laws. During our western yellow-billed cuckoo, without discussions with Isleta Pueblo, they Benefits of Exclusion Outweigh the the perception of Federal Government informed us that their perceived Benefits of Inclusion—Isleta Pueblo intrusion. This philosophy is also restrictions of a critical habitat The benefits of including Pueblo consistent with our published policies designation could have a damaging lands in the critical habitat designation on Native American natural resource effect to coordination efforts, possibly are limited to the incremental benefits management. The exclusion of this area preventing actions that might maintain, gained through the regulatory will likely also provide additional improve, or restore habitat for the requirement to consult under section 7 benefits to the species that would not western yellow-billed cuckoo and other and consideration of the need to avoid otherwise be available to encourage and endangered or threatened species. For adverse modification of critical habitat, maintain cooperative working these reasons, we have determined that agency and educational awareness, relationships. We find that the benefits our working relationship with the potential additional grant funding, and of excluding this area from critical Pueblo would be better maintained if the implementation of other law and habitat designation outweigh the they are excluded from the designation regulations. However, as discussed in benefits of including this area. of critical habitat for the western detail above, we have determined that Exclusion Will Not Result in Extinction yellow-billed cuckoo. For example, as these benefits are minimized because of the Species—Isleta Pueblo part of maintaining a cooperative they are provided through other working relationship with the Pueblo, mechanisms, such as (1) the We have determined that exclusion of conservation benefits, including listed conservation benefits to the western the Pueblo land will not result in species’ surveys, nest and/or habitat yellow-billed cuckoo and their habitat extinction of the species. Firstly, as monitoring, and/or habitat restoration from implementation of the Pueblo’s discussed above under Effects of Critical and enhancement have been possible. management plans; and (2) the Habitat Designation Section 7 We view this as a substantial benefit. maintenance of effective collaboration Consultation, if a Federal action or Proactive voluntary conservation and cooperation to promote the permitting occurs, the known presence efforts have and will continue to conservation of the western yellow- of western yellow-billed cuckoos or promote the recovery of the western billed cuckoo and their habitat. their habitat would require evaluation yellow-billed cuckoo. The Pueblo of The Pueblo will continue to protect under the jeopardy standard of section Isleta has developed and maintained a its bosque habitat and does not intend 7 of the Act, even absent the designation Riverine Management Plan that includes to develop the areas we proposed as of critical habitat, and thus will protect the southwestern willow flycatcher, Rio western yellow-billed cuckoo critical the species against extinction. Secondly, Grande silvery minnow, New Mexico habitat. Moreover, under the the Pueblo is committed to protecting meadow jumping mouse, and now comprehensive Riverine Management and managing Pueblo lands and species contains an amendment to include the Plan, the Isleta Pueblo has conducted a found on those lands according to their western yellow-billed cuckoo. The variety of voluntary measures, tribal and cultural management plans objective of this plan is to protect, restoration projects, and management and natural resource management conserve, and promote the management actions to conserve riparian vegetation, objectives, which provide conservation of the southwestern willow flycatcher, including not allowing cattle to graze benefits for the species and its habitat. Rio Grande silvery minnow, and New within the bosque, protecting riparian In short, the Pueblo is committed to Mexico meadow jumping mouse and habitat from fire, maintaining native greater conservation measures on their

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land than would be available through Benefits of Inclusion—Uintah and Federal laws, such as the Clean Water the designation of critical habitat. Ouray Indian Reservation Lands Act. These laws require analysis of the Accordingly, we have determined that As discussed above under Effects of potential for proposed projects to the 2,165 ac (876 ha) of Isleta Pueblo be Critical Habitat Designation Section 7 significantly affect the environment. excluded under subsection 4(b)(2) of the Consultation, Federal agencies, in Critical habitat may signal the presence Act because the benefits of exclusion consultation with the Service, must of sensitive habitat that could otherwise outweigh the benefits of inclusion and ensure that their actions are not likely be missed in the review process for will not cause the extinction of the to jeopardize the continued existence of these other environmental laws. Finally, there is the possible benefit species. any listed species or result in the that additional funding could be destruction or adverse modification of Unit 70 (UT–1) Green River 1—Uintah generated for habitat improvement by an any designated critical habitat of such and Ouray Indian Reservation Lands area being designated as critical habitat. species. The difference in the outcomes The Ute Tribe of the Uintah and Some funding sources may rank a of the jeopardy analysis and the adverse Ouray Indian Reservation (Ute Tribe) project higher if the area is designated modification analysis represents the owns and manages lands along the as critical habitat. Tribes or pueblos Green and Duchene Rivers in Uintah regulatory benefit and costs of critical often seek additional sources of funding and Duchesne Counties, Utah within habitat. A critical habitat designation in order to conduct wildlife-related Unit 70 for the western yellow-billed requires Federal agencies to consult on conservation activities. Therefore, cuckoo. Since at least 2016, the Ute whether their activity would destroy or having an area designated as critical Tribe has conducted conservation adversely modify critical habitat to the habitat could improve the chances of actions for the western yellow-billed point where recovery could not be receiving funding for western yellow- cuckoo and its habitat on their lands achieved. Designation of critical habitat billed cuckoo habitat-related projects. and lands they manage, as described in on the Ute Tribal portion of Unit 70 the Ute Tribe’s Conservation Strategy for could potentially benefit the western Benefits of Exclusion—Uintah and the Western Yellow-billed Cuckoo on yellow-billed cuckoo because it Ouray Indian Reservation Lands the Uintah and Ouray Indian provides habitat for the western yellow- The benefits of excluding the Uintah Reservation ((Conservation Strategy) billed cuckoo, is relatively undisturbed and Ouray Indian Reservation lands Sinclear and Simpson 2016, pp. i–20). by human activity, encompasses from designated critical habitat are The Conservation Strategy outlines features essential to conservation of the significant and include: (1) Our conservation measures being species, and is occupied by the species. deference to the Tribe to develop and implemented by the Ute Tribe including The most likely Federal nexuses would implement conservation and natural limiting development within 0.5 mi (0.8 be associated with Federal funding resource management plans for their ha) of western yellow-billed cuckoo through the Bureau of Indian Affairs, lands and resources, which includes habitat; ensuring that there is no net loss permitting from the Corps if work benefits to the western yellow-billed of riparian and wetland areas on Ute involves activities in riparian or cuckoo and its habitat that might not Tribal lands; supporting the restoration wetland areas, and Reclamation in their otherwise occur; (2) the continuance and enhancement of riparian and assistance to the Utah Reclamation and strengthening of our effective wetland areas; establishing a Mitigation and Conservation working relationships with the Tribe to conservation mitigation fund; and Commission (Mitigation Commission) in promote the conservation of the western designating western yellow-billed acquiring lands for the Lower Duchesne yellow-billed cuckoo and its habitat; cuckoo refuge areas. We coordinated Wetlands Mitigation Project. However, and (3) the maintenance of effective with and assisted the Ute Tribe in the since the listing of the western yellow- partnerships with the Tribe and working development of the Conservation billed cuckoo in 2014, only one section in collaboration and cooperation to Strategy in 2016. Due to implementation 7 consultation involving the species has promote additional conservation of the of the Conservation Strategy, we occurred on Ute Tribal lands, and we do western yellow-billed cuckoo and their identified approximately 14,611 ac not expect this trend to increase for habitat. (5,913 ha) of Ute Tribal lands for future activities. As previously In working with the Ute Tribe, we exclusion in the revised proposed rule. described, the Ute Tribe has have found that fish, wildlife, and other During the public comment period, we implemented their Conservation natural resources on tribal lands are received additional land ownership Strategy for the species and its better managed under tribal authorities, information from Duchesne County conservation actions will be coordinated policies, and programs than through regarding Tribal and other acquired land with all future projects to minimize Federal regulation wherever possible under tribal management. The acquired negative effects to the species. and practicable. Additionally, critical lands are lands purchased by the Utah Therefore, we would not expect any habitat designations may be viewed by Reclamation Mitigation and additional conservation benefits through tribes as an unwanted intrusion into Conservation Commission (Mitigation the section 7 process from the inclusion tribal self-governance, thus Commission) for the Lower Duchesne of Ute Tribal land in the final critical compromising our working relationship Wetlands Mitigation Project, a project habitat designation. with the Tribe which is essential to implemented due to impacts resulting Another important benefit of achieving our mutual goals of managing from construction and operation of the including lands in a critical habitat for healthy ecosystems upon which the Central Utah Project (Utah Reclamation designation is that the designation can viability of threatened and endangered Mitigation and Conservation serve to educate landowners and the species populations depend. Commission et al. 2008, p. S–1). As a public regarding the potential The Ute Tribe in coordination with result, we adjusted the area we are conservation value of an area, and it the Service created the Conservation excluding to approximately 15,017 ac may help focus management efforts on Strategy to addresses threats specific to (6,077 ha). A portion are owned by the areas of high value for certain species. the western yellow-billed cuckoo, and Ute Tribe and a portion are federally Another possible benefit of the to provide protective management for acquired lands being managed by the designation of critical habitat is that it the species on Ute Tribal lands. Within Ute Tribe. may also affect the implementation of their strategy, the Ute Tribe developed

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a set of conservation actions which to western yellow-billed cuckoo habitat, known presence of western yellow- benefit the western yellow-billed and has provided protection through billed cuckoos or their habitat would cuckoo. These actions include commitments to restore and enhance require evaluation under the jeopardy identification, protection, and retention riparian areas on Ute Tribal lands. standard of section 7 of the Act, even of suitable habitat; management of We have found that the Ute Tribe’s absent the designation of critical habitat, livestock activities and invasive weeds; Conservation Strategy provides greater and thus will protect the species against restriction of motorized vehicles; and protection than critical habitat extinction. Secondly, the Ute Tribes avoiding development in western designation would provide because it is have a long term record of conserving a comprehensive conservation plan that yellow-billed cuckoo occupied habitat species and habitat and is committed to is specific to western yellow-billed areas. The Conservation Strategy protecting and managing western provides recommended measures for cuckoo conservation needs on Ute yellow-billed cuckoo habitat according best management practices to avoid and Tribal lands. The Ute Tribe developed minimize impacts to the western the Conservation Strategy partially in to their cultural history, management yellow-billed cuckoo and surrounding response to the initial proposed plans, and natural resource management habitat within a half mile designation of critical habitat for the objectives. We have determined that this (approximately 2,624 ft (800 m)) of western yellow-billed cuckoo for the commitment accomplishes greater suitable habitat. In addition, the purpose of maintaining management conservation than would be available Conservation Strategy identifies and conservation authority, and thus through the implementation of a opportunities for and recommends having a final critical habitat designation of critical habitat on a participation in recovery efforts and designation removed. Therefore, it is project-by-project basis. With the research. The Ute Tribe’s Conservation likely that the exclusion of Ute Tribal implementation of these conservation Strategy is consistent with their past land as designated critical habitat will measures, based upon strategies record of conservation, restoration, and foster a better partnership and working developed in the management plan, we management actions for listed species relationship with the Tribe and have concluded that this exclusion from and their habitat, and provides their implement coordinated efforts to critical habitat will not result in the commitment to continue implementing continue conservation of western extinction of the western yellow-billed important conservation actions on their yellow-billed cuckoo and its habitat. cuckoo. Although the exclusion of Because the Ute Tribe has conserved lands in the future. approximately 15,017 ac (6,077 ha) of western yellow-billed cuckoos on their Ute Tribal lands equals approximately Benefits of Exclusion Outweigh Benefits lands with implementation of the of Inclusion—Uintah and Ouray Indian Conservation Strategy, and will 50 percent of the area of proposed as Reservation Lands continue to do so, we see no additional critical habitat for western yellow-billed The benefits of including Ute Tribe’s benefits to the inclusion of Ute Tribal cuckoo in Utah, the exclusion totals just lands in the critical habitat designation land in a final critical habitat rule. We 5 percent of the total area identified in are limited to the incremental benefits have determined that conservation of the proposed rule. Significant portions gained through the regulatory the western yellow-billed cuckoo will of land adjacent to the excluded areas requirement to consult under section 7 continue to be achieved by the Ute Tribe are still within the final designation. In and consideration of the need to avoid as has been demonstrated by the addition, management and conservation adverse modification of critical habitat, proactive conservation from their of habitat for the western yellow-billed agency and educational awareness, Conservation Strategy. Given the cuckoo on these excluded lands will potential additional grant funding, and importance of the Ute Tribe’s continue based on existing management the implementation of other law and Conservation Strategy to the current and of the area by the Ute Tribe and benefit regulations. However, as discussed in future conservation of the western of the species pursuant to the Ute detail above, we have determined that yellow-billed cuckoo and our working Tribe’s Conservation Strategy. these benefits are minimized because relationship with the Ute Tribe, the they are provided through other benefit of excluding Ute Tribal lands As explained above, we find that mechanisms, such as (1) the outweighs the benefit of including them including western yellow-billed cuckoo conservation benefits to the western in proposed designated critical habitat. critical habitat on Ute Tribal land would yellow-billed cuckoo and their habitat Therefore, we would not expect any result in minimal additional benefits to from implementation of the Ute Tribe’s additional conservation benefits from the species. We also find that the management plans; and (2) the the inclusion of Ute Tribal land in a exclusion of these lands will not lead to maintenance of effective collaboration final critical habitat designation, and the extinction of the western yellow- and cooperation to promote the Ute Tribal lands have been excluded billed cuckoo, nor hinder its recovery conservation of the western yellow- from designation as final critical habitat because of the Ute Tribe’s emphasis to billed cuckoo and their habitat. under section 4(b)(2) of the Act for the protect and enhance riparian habitat for The Ute Tribe’s Conservation Strategy western yellow-billed cuckoo. the western yellow-billed cuckoo. This is expected to provide conservation and emphasis on conserving riparian habitat Exclusion Will Not Result in Extinction long-term management for the western on Ute Tribal lands will ensure the long- yellow-billed cuckoo outside of the of the Species—Uintah and Ouray Indian Reservation Lands term conservation of the western section 7 consultation process and yellow-billed cuckoo and contribute to through covering a broader area for the We have determined that exclusion of the species’ recovery. Accordingly, we species. We have found that there the Ute Tribal lands from the critical have determined that 15,017 ac (6,077 would be little additional educational habitat designation will not result in the ha) of Uintah and Ouray Indian benefit gained from designating these extinction of the western yellow-billed Reservation lands be excluded under Ute Tribal lands as critical habitat cuckoo. We base this determination on subsection 4(b)(2) of the Act because the because the Ute Tribe is well aware of several points. Firstly, as discussed the species’ presence, has developed above under Effects of Critical Habitat benefits of exclusion outweigh the conservation measures and mitigation Designation Section 7 Consultation, if a benefits of inclusion and will not cause methods to minimize development close Federal action or permitting occurs, the the extinction of the species.

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Federal Lands requires Federal agencies to consult on Benefits of Exclusion—American Falls whether their activity would destroy or Reservoir Unit 65 (ID–1) Snake River 1—American adversely modify critical habitat to the Falls Reservoir The main benefit of excluding point where recovery could not be Reclamation managed lands associated We have identified approximately achieved. with the American Falls Reservoir from 1,352 ac (547 ha) of federally owned, Our section 7 consultation history withdrawn, or easement lands designated critical habitat is to remove within Reclamation lands being any potential conflict with the associated with the full-pool elevation considered for exclusion, shows that for the American Falls Reservoir for Congressionally authorized project since listing in 2014, no formal purposes of the American Fall Reservoir exclusion from the final critical habitat. consultations have occurred for actions The land is comprised of several large Federal Water Resource Project. We conducted on those lands. We have have already developed an effective parcels of land which were either conducted an informal consultation for acquired by Reclamation under fee title, approach to conservation of the western the operation and maintenance of yellow-billed cuckoo, its habitat, and withdrawn from public domain for Reclamation resources on the Snake Reclamation purposes, or granted under other species in this area. River; however, overall, since listing in During the development of the prescriptive easement to Reclamation at 2014, section 7 consultations have been the time of the construction of American western yellow-billed cuckoo critical rare on this area of Reclamation lands. habitat proposal, we have Falls Dam and Reservoir. American Because of how Reclamation have Falls Dam and Reservoir comprise a communicated with Reclamation to chosen to manage and conserve their discuss how they might be affected by multipurpose facility constructed for the lands and the lack of past section 7 Congressionally-authorized purposes of the regulations associated with western consultation history, we do not yellow-billed cuckoo management, irrigation and power generation and is anticipate that Reclamation actions part of the larger Minidoka Project. The western yellow-billed cuckoo recovery, would considerably change in the and the designation of critical habitat. land is located at the northeastern end future, generating a noticeable increase of American Falls Reservoir where both As part of these discussions, we have in section 7 consultations or that the Snake River and McTucker Creek provided technical assistance to consultation would cause significant enter the reservoir in Bingham County, Reclamation to conserve the western changes to the current management of Idaho. The area is vegetated to varying yellow-billed cuckoo and its habitat on western yellow-billed cuckoo and its degrees by a shifting mosaic of riparian their lands. Reclamation implemented habitat. communities, including suitable nesting the EBSM and included measures taken habitat for the yellow-billed cuckoo. Another important benefit of in efforts to conserve western yellow- Reclamation has demonstrated a track including lands in a critical habitat billed cuckoo habitat that we have in record of maintaining these lands for designation is that the designation can our supporting record for this decision. natural resources through the serve to educate landowners and the Reclamation, through their EBSM, implementation of their Ecologically public regarding the potential address western yellow-billed cuckoo Based System Management (EBSM) conservation value of an area, and it habitat. The proposed critical habitat approach to the operation of the may help focus management efforts on segment we identified on lands upstream Palisades Dam, conservation areas of high value for certain species. managed by Reclamation are where efforts to reduce impacts from livestock Any information about the western western yellow-billed cuckoo have been grazing, annual planting efforts, and yellow-billed cuckoo that reaches a recorded (or are expected to occur). annual noxious weed treatments. The wide audience, including parties Reclamation have demonstrated that EBSM was implemented in 2004, and engaged in conservation activities, is maintaining western yellow-billed mimics historical hydrographs to the valuable. Reclamation are currently cuckoo habitat, while meeting their greatest extent feasible. Significant working to maintain and improve regulatory obligations is a priority. changes in riparian cottonwood habitat western yellow-billed cuckoo habitat, Reclamation, through their previous conditions in the area adjacent to the participating in working groups, and management actions and the full-pool have not occurred over the exchanging management information. implementation of the EBSM, have a past decade and existing habitat Another possible benefit of the demonstrated record of their conditions are not expected to change, designation of critical habitat is that it commitment to the conservation of expect for those positive projected may also affect the implementation of cottonwood forest habitat important to habitat projects Reclamation are Federal laws, such as the Clean Water western yellow billed-cuckoo including; undertaking, in the near or long term. Act. These laws require analysis of the reducing impacts from livestock grazing, potential for proposed projects to increasing cottonwood regeneration, Benefits of Inclusion—American Falls significantly affect the environment. decreasing the spread of nonnative Reservoir Critical habitat may signal the presence plants, and maintaining and improving As discussed above under Effects of of sensitive habitat that could otherwise riparian conditions. Specific habitat Critical Habitat Designation Section 7 be missed in the review process for improvements previously carried out Consultation, Federal agencies, in these other environmental laws. within this inundation zone include the consultation with the Service, must Finally, there is the possible benefit termination of a 500-unit livestock ensure that their actions are not likely that additional funding could be grazing lease, repairing riparian fencing, to jeopardize the continued existence of generated for habitat improvement by an the establishment of close working any listed species or result in the area being designated as critical habitat. partnerships with adjacent landowners destruction or adverse modification of Some funding sources may rank a to support exclusion efforts, and any designated critical habitat of such project higher if the area is designated completing annual noxious and invasive species. The difference in the outcomes as critical habitat. Therefore, having an weed treatments. Lastly, Reclamation of the jeopardy analysis and the adverse area designated as critical habitat could precludes construction of permanent modification analysis represents the improve the chances of receiving structures in this area. Overall, these regulatory benefit and costs of critical funding for western yellow-billed actions commit to management of habitat. A critical habitat designation cuckoo habitat-related projects. riparian habitat that likely accomplishes

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greater conservation than would be aware of the value of their lands for are excluded under subsection 4(b)(2) of available through the implementation of western yellow-billed cuckoo the Act because the benefits of a designation of critical habitat on a conservation, the conservation and excluding these lands from critical project-by-project basis. educational benefits of a western habitat for the western yellow-billed The designation of critical habitat on yellow-billed cuckoo critical habitat cuckoo outweigh the benefits of their Reclamation lands associated with the designation are minimized. inclusion, and the exclusion of these full-pool of American Falls Reservoir The benefits of excluding these areas lands from the designation will not may potentially impact the from being designated as western result in the extinction of the species. Congressionally authorized operation yellow-billed cuckoo critical habitat are and maintenance of the Federal Water more significant and include avoiding Unit 37 (NM–6B) Middle Rio Grande Resource Project. As such, exclusion conflict with Congressionally and Unit 39 (NM–8AB) Caballo Delta— would reduce the potential conflict and authorized purposes of the reservoir, Bureau of Reclamation Yellow-Billed ensure that the Federal Water Resource and encouraging the continued Cuckoo Management Plan Project would continue to operate implementation of the EBSM and The Elephant Butte and Caballo unobstructed. This would further help conservation measures such as habitat Reservoirs (Reservoirs) near Truth or to maintain our working relationship management and protection, reduction Consequences, in Sierra County, New with Reclamation. of livestock impacts, and annul riparian Mexico are owned and operated by The designation of critical habitat on planting efforts. The exclusion of these Reclamation. We are excluding portions Reclamation lands would be expected to areas will likely also provide additional of the upper reaches of Elephant Butte indirectly impact our working benefits to the western yellow-billed Reservoir (Unit 37 NM–6B 8,091 ac relationship with other water users, cuckoo and other listed species that (3.274 ha)) and the entire Caballo since the American River Falls would not otherwise be available Reservoir (Unit 39 NM–8A and 8B (245 Reservoir is closely tied to water users without the Service’s maintaining a ac (120 ha)) from critical habitat. in Idaho. The perceived restrictions of a cooperative working relationship with Reclamation has a Congressionally critical habitat designation could have a Reclamation. In conclusion, we find that authorized purpose of managing these damaging effect on coordination efforts, the benefits of excluding Reclamation reservoirs and delivering water to possibly preventing actions that might lands associated with the full-pool of downstream users. Through their maintain, improve, or restore habitat for American Falls Reservoir in Idaho, from historical conservation efforts and the western yellow-billed cuckoo and critical habitat designation outweigh the consultation history, Reclamation has other species. For these reasons, we benefits of including these areas. demonstrated a commitment to have determined that our working management practices within both relationships with water users would be Exclusion Will Not Result in Reservoirs that have benefited the better maintained if we excluded the Extinction—American Falls Reservoir western yellow-billed cuckoo American River Falls Reservoir from the We have determined that exclusion of population over the past decade and a designation of western yellow-billed Reclamation lands associated with the half while still meeting their cuckoo critical habitat. We view this as full-pool of American Falls Reservoir Congressionally authorized a substantial benefit since we have from the critical habitat designation are responsibilities. The riparian habitat developed a cooperative working significant and will not result in the within these Reservoirs now supports a relationship with Reclamation for the extinction of the western yellow-billed large number of nesting western yellow- mutual benefit of western yellow-billed cuckoo. We base this determination on billed cuckoos. In both these Reservoirs, cuckoo conservation and other several points. Firstly, as discussed the filling and draw-down of surface endangered and threatened species above under Effects of Critical Habitat water mimics the flooding and drying using this area. Designation Section 7 Consultation, if a events associated with intact riparian Federal action or permitting occurs, the woodland habitat and river systems Benefits of Exclusion Outweigh Benefits known presence of western yellow- providing habitat for the western of Inclusion—American Falls Reservoir billed cuckoos or their habitat would yellow-billed cuckoo. However, these The benefits of including Reclamation require evaluation under the jeopardy areas could also be completely lands in the critical habitat designation standard of section 7 of the Act, even inundated with surface water on are limited to the incremental benefits absent the designation of critical habitat, occasion and thus, provide no habitat gained through the regulatory and thus will protect the species against other than what is available in adjacent requirement to consult under section 7 extinction. Secondly, Reclamation have areas. For Elephant Butte Reservoir, we and consideration of the need to avoid committed to protecting and managing identified the area from the dam at adverse modification of critical habitat, western yellow-billed cuckoo habitat Elephant Butte Reservoir upstream to agency and educational awareness, and through their EBSM approach and RM 54 as the active reservoir pool (as potential additional grant funding. implementation of conservation actions. opposed to the full pool location of However, we have determined that We have determined that this approximately RM 62). From a these benefits are minimized because commitment accomplishes greater practicality standpoint, RM 54 is as far they are provided for through other conservation than would be available upstream as the reservoir has been mechanisms, such as (1) the through the implementation of a modeled to receive surface water over conservation benefits to the western designation of critical habitat on a the next 30 years in a scenario providing yellow-billed cuckoo and its habitat project-by-project basis. With the the wettest conditions (Reclamation from implementation of EBSM and implementation of these plans, we have 2015, entire; Service 2016b, entire). In other conservation actions; and (2) the concluded that this exclusion from the model, the reservoir would reach maintenance of effective collaboration critical habitat will not result in the RM 54 for short intervals of time in 3 and cooperation to promote the extinction of the western yellow-billed separate events. conservation of the western yellow- cuckoo. Accordingly, we have Reclamation has supported collecting billed cuckoo and its habitat. determined that 1,352 ac (547 ha) of annual western yellow-billed cuckoo Because Reclamation has developed Reclamation lands associated with the population data since 2006 at Elephant and implemented the EBSM and are full-pool of American Falls Reservoir Butte Reservoir (even prior to the

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species’ listing and prior to the destruction or adverse modification of conservation for the western yellow- establishment of a formal survey any designated critical habitat of such billed cuckoo. As mentioned above, protocol). Over the last decade and a species. The difference in the outcomes Reclamation is an important land half, Reclamation has assisted in the of the jeopardy analysis and the adverse manager in the Middle and Lower Rio development of the formal survey modification analysis represents the Grande. The surveys, conservation, protocol and has also instructed training regulatory benefit and costs of critical restoration and management courses. The ongoing survey effort habitat. A critical habitat designation information submitted by Reclamation within Elephant Butte and Caballo requires Federal agencies to consult on within their Southwestern Willow Reservoirs indicate that the western whether their activity would destroy or Flycatcher and Yellow-billed Cuckoo yellow-billed cuckoo is a common adversely modify critical habitat to the Management Plan document that summer resident. point where recovery could not be meaningful collaborative and Through these efforts, and the recent achieved. cooperative work for the western development in including the western Another possible benefit is that the yellow-billed cuckoo and its habitat will yellow-billed cuckoo within their designation of critical habitat can serve continue within Elephant Butte and Management Plan, Reclamation has to educate landowners and the public Caballo Reservoirs. We have determined demonstrated a commitment to regarding the potential conservation that the results of these activities management practices within their value of an area, and this may focus and promote long-term protection and Reservoirs that have conserved and contribute to conservation efforts by conserve the western yellow-billed benefited the western yellow-billed other parties by clearly delineating areas cuckoo and its habitat within Elephant cuckoo population in that area over the of high conservation value for certain Butte and Caballo Reservoirs, as well as past decade and a half. In addition, species. Any information about the the riparian habitat in surrounding Reclamation funded scientific research western yellow-billed cuckoo and its areas. Reclamation, through their within Elephant Butte Reservoir and habitat that reaches a wide audience, historical efforts and inclusion of the surrounding areas that has contributed including other parties engaged in western yellow-billed cuckoo within to the understanding of habitat selection conservation activities, would be their management plan has committed and distribution of the western yellow- considered valuable. to development of habitat to support billed cuckoo such as telemetry and Another possible benefit of the nesting activity of the species outside home range studies, and geolocator designation of critical habitat is that it the reservoir pools, this includes items studies to better understand migration may also affect the implementation of such as realigning approximately 8 mi patterns. Considering the past and Federal laws, such as the Clean Water (12.8 km) of river to mimic the dynamic ongoing efforts of management and Act. These laws require analysis of the process of river movement to an area of research to benefit the western yellow- potential for proposed projects to a lower elevation which will result in billed cuckoo, done in coordination and significantly affect the environment. roughly 800 ac (324 ha) of potential cooperation with the Service, we find Critical habitat may signal the presence western yellow-billed cuckoo habitat, as the benefits of excluding areas more of sensitive habitat that could otherwise well as roughly 2,000 ac (809 ha) of prone to surface water inundation be missed in the review process for potential habitat restoration after the within Elephant Butte Reservoir in the these other environmental laws. Finally, large Tiffany Fire in 2017. In all, as a Middle Rio Grande Unit and Caballo there is the possible benefit that result of the commitments associated Delta Units outweigh the benefits of additional funding could be generated with Reclamations’ Southwestern including it in critical habitat. for habitat improvement by an area Willow Flycatcher and Yellow-billed In addition to the conservation effort being designated as critical habitat. Cuckoo Management Plan, a potential of described above, Reclamation works Some funding sources may rank a approximately 5,500 ac (2,226 ha) of with BLM to ensure grazing is project higher if the area is designated habitat is expected to benefit the minimized during the breeding season as critical habitat. Therefore, having an western yellow-billed cuckoo. for the western yellow-billed cuckoo. area designated as critical habitat could The benefits of excluding areas within They also map habitat characteristics of improve the chances of receiving Elephant Butte and Caballo Reservoirs the riparian habitat in intervals less than funding for western yellow-billed from critical habitat will give 5 years to ensure that suitable habitat for cuckoo habitat-related projects. Reclamation management flexibility to the western yellow-billed cuckoo is not Benefits of Exclusion—Bureau of meet its Congressionally authorized a limiting factor. These long practiced Reclamation Yellow-Billed Cuckoo obligations and provide for better flexible and adaptive management conservation than would be achieved Management Plan practices are provided as examples from case-by-case section 7 which have resulted in the expansion, We have determined that significant consultations. protection, and successful continuance benefits would be realized by excluding Benefits of Exclusion Outweigh the of a western yellow-billed cuckoo areas within Elephant Butte and Caballo Benefits of Inclusion—Bureau of population, and have also provided Reservoirs. Our reasoning for our Reclamation Yellow-Billed Cuckoo benefit to other listed species such as determination includes: (1) The Management Plan the southwestern willow flycatcher. management regime and commitments by Reclamation provide a more holistic The benefits of including the areas Benefits of Inclusion—Bureau of approach toward implementing within the Middle Rio Grande and Reclamation Yellow-Billed Cuckoo conservation actions to protect and Caballo Delta Units In the critical Management Plan enhance western yellow-billed cuckoos habitat designation are limited to the As discussed above under Effects of and their habitat than a case-by-case incremental benefits gained through the Critical Habitat Designation Section 7 section 7 consultation process would regulatory requirement to consult under Consultation, Federal agencies, in provide; and (2) an exclusion would section 7 and consideration of the need consultation with the Service, must give Reclamation better flexibility to to avoid adverse modification of critical ensure that their actions are not likely meet its Congressionally authorized habitat, agency and educational to jeopardize the continued existence of responsibilities for water storage and awareness, potential additional grant any listed species or result in the delivery while still providing funding, and the implementation of

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other law and regulations. However, as and because Reclamation is committed to require Federal agencies to provide a discussed above, we have determined to greater conservation measures within certification statement of the factual that these benefits are minimized and/or adjacent to their Reservoirs than basis for certifying that the rule will not because: (1) The current management would be available through the have a significant economic impact on regime and commitments by designation of critical habitat. a substantial number of small entities. Reclamation provide a more holistic Accordingly, we have determined that According to the Small Business approach toward implementing areas of Elephant Butte (NM–6B) (8,091 Administration, small entities include conservation actions to protect and ac (3,274 ha)) and Caballo Reservoirs small organizations such as enhance western yellow-billed cuckoos (Unit NM–8AB) (245 ac (120 ha)) are independent nonprofit organizations; and their habitat than a case-by-case excluded under subsection 4(b)(2) of the small governmental jurisdictions, section 7 consultation process would Act because the benefits of exclusion including school boards and city and provide; and (2) the conservation outweigh the benefits of inclusion and town governments that serve fewer than benefits to the western yellow-billed will not cause the extinction of the 50,000 residents; and small businesses cuckoo and its habitat from species. (13 CFR 121.201). Small businesses implementation of Reclamation’s include manufacturing and mining Western Yellow-billed Cuckoo Required Determinations concerns with fewer than 500 Management Plan. Regulatory Planning and Review employees, wholesale trade entities The benefits of excluding this area (Executive Orders 12866 and 13563) with fewer than 100 employees, retail from designation as critical habitat for and service businesses with less than $5 the western yellow-billed cuckoo are Executive Order (E.O.) 12866 provides million in annual sales, general and significant, and include allowing that the Office of Information and heavy construction businesses with less Reclamation the flexibility to store and Regulatory Affairs (OIRA) will review than $27.5 million in annual business, deliver water for this area and all significant rules. The Office of special trade contractors doing less than encouraging the continuation of Information and Regulatory Affairs has $11.5 million in annual business, and adaptive management measures such as determined that this rule is significant. agricultural businesses with annual monitoring, surveys, research, Executive Order 13563 reaffirms the sales less than $750,000. To determine enhancement, and restoration activities principles of E.O. 12866 while calling if potential economic impacts to these that Reclamation currently implements for improvements in the nation’s small entities are significant, we and plans for the future. The exclusion regulatory system to promote considered the types of activities that of this area will likely also provide predictability, to reduce uncertainty, might trigger regulatory impacts under additional benefits to the species by and to use the best, most innovative, this designation as well as types of encouraging and maintaining a and least burdensome tools for project modifications that may result. In cooperative working relationship with achieving regulatory ends. The general, the term ‘‘significant economic stakeholders associated with water Executive order directs agencies to impact’’ is meant to apply to a typical storage and delivery. The actions taken consider regulatory approaches that small business firm’s business by Reclamation to manage and protect reduce burdens and maintain flexibility operations. habitat needed for western yellow-billed and freedom of choice for the public Under the RFA, as amended, and cuckoo are above those conservation where these approaches are relevant, consistent with recent court decisions, measures which may be required if the feasible, and consistent with regulatory Federal agencies are required to area was designated as critical habitat. objectives. E.O. 13563 emphasizes evaluate the potential incremental As a result, we find that the benefits of further that regulations must be based impacts of rulemaking only on those excluding these areas from critical on the best available science and that entities directly regulated by the habitat designation outweigh the the rulemaking process must allow for rulemaking itself and, therefore, are not benefits of including these areas. public participation and an open required to evaluate the potential exchange of ideas. We have developed impacts to indirectly regulated entities. Exclusion Will Not Result in Extinction this rule in a manner consistent with The regulatory mechanism through of the Species—Bureau of Reclamation these requirements. which critical habitat protections are Yellow-Billed Cuckoo Management Plan Regulatory Flexibility Act (5 U.S.C. 601 realized is section 7 of the Act, which We have determined that exclusion of requires Federal agencies, in et seq.) the Reclamation lands at Elephant Butte consultation with the Service, to ensure and Caballo Reservoirs from the critical Under the Regulatory Flexibility Act that any action authorized, funded, or habitat designation will not result in the (RFA; 5 U.S.C. 601 et seq.), as amended carried out by the agency is not likely extinction of the western yellow-billed by the Small Business Regulatory to destroy or adversely modify critical cuckoo. We base this determination on Enforcement Fairness Act of 1996 habitat. Therefore, under section 7, only several points. Firstly, as discussed (SBREFA; 5 U.S.C. 801 et seq.), Federal action agencies are directly above under Effects of Critical Habitat whenever an agency is required to subject to the specific regulatory Designation Section 7 Consultation, if a publish a notice of rulemaking for any requirement (avoiding destruction and Federal action or permitting occurs, the proposed or final rule, it must prepare adverse modification) imposed by known presence of western yellow- and make available for public comment critical habitat designation. billed cuckoos or their habitat would a regulatory flexibility analysis that Consequently, it is our position that require evaluation under the jeopardy describes the effects of the rule on small only Federal action agencies would be standard of section 7 of the Act, even entities (i.e., small businesses, small directly regulated if we adopt the absent the designation of critical habitat, organizations, and small government proposed critical habitat designation. and thus will protect the species against jurisdictions). However, no regulatory There is no requirement under the RFA extinction. Secondly, Reclamation’s flexibility analysis is required if the to evaluate the potential impacts to management of the areas will ensure the head of the agency certifies the rule will entities not directly regulated. long-term persistence and protection of not have a significant economic impact Moreover, Federal agencies are not western yellow-billed cuckoo habitat on a substantial number of small small entities. Therefore, because no within and/or adjacent to the Reservoirs entities. The SBREFA amended the RFA small entities would be directly

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regulated by this rulemaking, the tribal governments under entitlement government entities. As such, a Small Service certifies that the final critical authority,’’ if the provision would Government Agency Plan is not habitat designation will not have a ‘‘increase the stringency of conditions of required. significant economic impact on a assistance’’ or ‘‘place caps upon, or Takings—Executive Order 12630 substantial number of small entities. otherwise decrease, the Federal During the development of this final Government’s responsibility to provide In accordance with E.O. 12630 rule we reviewed and evaluated all funding,’’ and the State, local, or tribal (Government Actions and Interference information submitted during the governments ‘‘lack authority’’ to adjust with Constitutionally Protected Private comment period that may pertain to our accordingly. At the time of enactment, Property Rights), we have analyzed the consideration of the probable these entitlement programs were: potential takings implications of incremental economic impacts of this Medicaid; Aid to Families with designating critical habitat for western critical habitat designation. Based on Dependent Children work programs; yellow-billed cuckoo in a takings this information, we affirm our Child Nutrition; Food Stamps; Social implications assessment. The Act does certification that this final critical Services Block Grants; Vocational not authorize the Service to regulate habitat designation will not have a Rehabilitation State Grants; Foster Care, private actions on private lands or significant economic impact on a Adoption Assistance, and Independent confiscate private property as a result of substantial number of small entities. Living; Family Support Welfare critical habitat designation. Designation Services; and Child Support of critical habitat does not affect land Energy Supply, Distribution, or Use— ownership, or establish any closures, or Executive Order 13211 Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that restrictions on use of or access to the Executive Order 13211 (Actions ‘‘would impose an enforceable duty designated areas. Furthermore, the Concerning Regulations That upon the private sector, except (i) a designation of critical habitat does not Significantly Affect Energy Supply, condition of Federal assistance or (ii) a affect landowner actions that do not Distribution, or Use) requires agencies duty arising from participation in a require Federal funding or permits, nor to prepare Statements of Energy Effects voluntary Federal program.’’ does it preclude development of habitat when undertaking certain actions. We The designation of critical habitat conservation programs or issuance of do not find that this critical habitat does not impose a legally binding duty incidental take permits to permit actions designation would significantly affect on non-Federal Government entities or that do require Federal funding or energy supplies, distribution, or use, as private parties. Under the Act, the only permits to go forward. However, Federal the areas identified as critical habitat are regulatory effect is that Federal agencies agencies are prohibited from carrying along riparian corridors in mostly must ensure that their actions do not out, funding, or authorizing actions that remote areas with little energy supplies, destroy or adversely modify critical would destroy or adversely modify distribution, or infrastructure in place. habitat under section 7. While non- critical habitat. A takings implications Moreover, the Administrator of the Federal entities that receive Federal assessment has been completed and Office of Information and Regulatory funding, assistance, or permits, or that concludes that this designation of Affairs did not otherwise designate this otherwise require approval or critical habitat does not pose significant action as a significant energy action authorization from a Federal agency for takings implications for lands within or pursuant to the Executive order. an action, may be indirectly impacted affected by the designation. Therefore, this action is not a significant by the designation of critical habitat, the Federalism—Executive Order 13132 energy action, and no Statement of legally binding duty to avoid Energy Effects is required. destruction or adverse modification of In accordance with E.O. 13132 (Federalism), this final rule does not Unfunded Mandates Reform Act (2 critical habitat rests squarely on the Federal agency. Furthermore, to the have significant federalism effects. A U.S.C. 1501 et seq.) extent that non-Federal entities are federalism summary impact statement is In accordance with the Unfunded indirectly impacted because they not required. In keeping with Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate Department of the Interior and seq.), we make the following finding: in a voluntary Federal aid program, the Department of Commerce policy, we (1) This rule would not produce a Unfunded Mandates Reform Act would requested information from, and Federal mandate. In general, a Federal not apply, nor would critical habitat coordinated development of this final mandate is a provision in legislation, shift the costs of the large entitlement critical habitat designation with, statute, or regulation that would impose programs listed above onto State appropriate State resource agencies in an enforceable duty upon State, local, or governments. Arizona, California, Colorado, Idaho, tribal governments, or the private sector, (2) We have determined that this rule New Mexico, Texas, and Utah. From a and includes both ‘‘Federal will not significantly or uniquely affect federalism perspective, the designation intergovernmental mandates’’ and small governments because it would not of critical habitat directly affects only ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 the responsibilities of Federal agencies. These terms are defined in 2 U.S.C. million or greater in any year; that is, it The Act imposes no other duties with 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ respect to critical habitat, either for mandate’’ includes a regulation that under the Unfunded Mandates Reform States and local governments, or for ‘‘would impose an enforceable duty Act. The designation of critical habitat anyone else. As a result, the final rule upon State, local, or tribal governments’’ imposes no obligations on State or local does not have substantial direct effects with two exceptions. It excludes ‘‘a governments. By definition, Federal either on the States, or on the condition of Federal assistance.’’ It also agencies are not considered small relationship between the National excludes ‘‘a duty arising from entities, although the activities they Government and the States, or on the participation in a voluntary Federal fund or permit may be proposed or distribution of powers and program,’’ unless the regulation ‘‘relates carried out by small entities. responsibilities among the various to a then-existing Federal program Consequently, we have determined that levels of government. The designation under which $500,000,000 or more is the critical habitat designation would may have some benefit to these provided annually to State, local, and not significantly or uniquely affect small governments because the areas that

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contain the features essential to the prepare environmental analyses our responsibilities to work directly conservation of the species are more pursuant to the National Environmental with Tribes in developing programs for clearly defined, and the physical or Policy Act (NEPA; 42 U.S.C. 4321 et healthy ecosystems, to acknowledge that biological features of the habitat seq.) in connection with designating Tribal lands are not subject to the same necessary for the conservation of the critical habitat under the Act. We controls as Federal public lands, to species are specifically identified. This published a notice outlining our reasons remain sensitive to Indian culture, and information does not alter where and for this determination in the Federal to make information available to Tribes. what federally sponsored activities may Register on October 25, 1983 (48 FR The following Tribes were contacted occur. However, it may assist State and 49244). This position was upheld by the directly during the proposed and final local governments in long-range U.S. Court of Appeals for the Ninth planning because they no longer have to Circuit (Douglas County v. Babbitt, 48 rule process: Ak-Chin Indian wait for case-by-case section 7 F.3d 1495 (9th Cir. 1995)). However, Community; Fort Mojave Indian Tribe; consultations to occur. when the range of the species includes Colorado River Indian Reservation; Fort Where State and local governments States within the Tenth Circuit, such as Yuma Indian Reservation; Cocopah require approval or authorization from a that of the western yellow-billed Indian Tribe; Chemehuevi Indian Tribe; Federal agency for actions that may cuckoo, under the Tenth Circuit ruling Fort McDowell Yavapai Nation; affect critical habitat, consultation in Catron County Board of Yavapai-Apache Nation; Yavapi- under section 7(a)(2) of the Act would Commissioners v. U.S. Fish and Wildlife Prescott Indian Tribe; Tohono O’odham be required. While non-Federal entities Service, 75 F.3d 1429 (10th Cir. 1996), Nation; Tonto Apache Tribe; Havasupai that receive Federal funding, assistance, we undertake a NEPA analysis for Tribe; Hualapai Indian Tribe; Hopi or permits, or that otherwise require critical habitat designations. Tribe; Pasua Yaqui Tribe; San Carlos approval or authorization from a Federal We invited the public to comment on Apache Tribe; Gila River Indian agency for an action, may be indirectly our draft environmental assessment Community; Salt River Pima-Maricopa impacted by the designation of critical (Service 2019d, entire) and whether the Indian Community; White Mountain habitat, the legally binding duty to proposed regulation may have a Apache Tribe; Navajo Nation; Santa avoid destruction or adverse significant impact on the human Clara, Ohkay Owingeh, and San modification of critical habitat rests environment, or fall within one of the Ildefonso Pueblos; Cochiti, Santo squarely on the Federal agency. categorical exclusions for actions that Domingo, San Felipe, Sandia, Santa Ana have no individual or cumulative effect and Isleta Pueblos; Shoshone-Bannock, Civil Justice Reform—Executive Order on the quality of the human Fort Hall Reservation; the Cachil DeHe 12988 environment. We did not receive any Band of Wintun Indians; and the Ute In accordance with Executive Order comments or other information during Tribe of the Uinta and Ouray 12988 (Civil Justice Reform), the Office the comment period for the revised Reservation. We will continue to work of the Solicitor has determined that the proposed rule. Our environmental on a government-to-government basis rule would not unduly burden the assessment found that the impacts of the with Tribal entities on conservation of judicial system and that it meets the proposed critical habitat designation habitat after the designation of critical requirements of sections 3(a) and 3(b)(2) would be minor and not rise to a habitat for the western yellow-billed of the order. We are designating critical significant level, so preparation of an cuckoo. habitat in accordance with the environmental impact statement is not provisions of the Act. To assist the required. Copies of our final References Cited public in understanding the habitat environmental assessment and Finding A complete list of references cited in needs of the species, this rule identifies of No Significant Impact (Service 2021, this rulemaking is available on the the elements of physical or biological entire) can be obtained by contacting the internet at http://www.regulations.gov features essential to the conservation of Field Supervisor of the Sacramento Fish the species. The designated areas of and Wildlife Office, or on the in Docket No. FWS–R8–ES–2013–0011 critical habitat are presented on maps, Sacramento Fish and Wildlife Office and upon request from the Sacramento FOR and the rule provides several options for website at http://www.fws.gov/ Fish and Wildlife Office (see the interested public to obtain more sacramento (see ADDRESSES). FURTHER INFORMATION CONTACT). detailed location information, if desired. Government-to-Government Authors Relationship With Tribes Paperwork Reduction Act of 1995 (44 The primary authors of this final rule U.S.C. 3501 et seq.) In accordance with the President’s are the staff members of the Fish and This rule does not contain memorandum of April 29, 1994 Wildlife Service’s Species Assessment information collection requirements, (Government-to-Government Relations Team and Service staff in each and a submission to the Office of with Native American Tribal associated Ecological Services Field Management and Budget (OMB) under Governments; 59 FR 22951), Executive Office. the Paperwork Reduction Act of 1995 Order 13175 (Consultation and (44 U.S.C. 3501 et seq.) is not required. Coordination with Indian Tribal List of Subjects in 50 CFR Part 17 Governments), and the Department of We may not conduct or sponsor and you Endangered and threatened species, are not required to respond to a the Interior’s manual at 512 DM 2, we Exports, Imports, Reporting and collection of information unless it readily acknowledge our responsibility recordkeeping requirements, displays a currently valid OMB control to communicate meaningfully with Transportation. number. recognized Federal Tribes on a government-to-government basis. In Regulation Promulgation National Environmental Policy Act (42 accordance with Secretarial Order 3206 U.S.C. 4321 et seq.) of June 5, 1997 (American Indian Tribal Accordingly, we amend part 17, It is our position that, outside the Rights, Federal-Tribal Trust subchapter B of chapter I, title 50 of the jurisdiction of the U.S. Court of Appeals Responsibilities, and the Endangered Code of Federal Regulations, as set forth for the Tenth Circuit, we do not need to Species Act), we readily acknowledge below:

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PART 17—ENDANGERED AND Authority: 16 U.S.C. 1361–1407; 1531– List of Endangered and Threatened THREATENED WILDLIFE AND PLANTS 1544; and 4201–4245, unless otherwise Wildlife to read as follows: noted. § 17.11 Endangered and threatened ■ 1. The authority citation for part 17 ■ 2. Amend § 17.11(h) by revising the wildlife. continues to read as follows: entry for ‘‘Cuckoo, yellow-billed * * * * * [Western DPS]’’ under ‘‘BIRDS’’ in the (h) * * *

Vertebrate population where endangered Listing citations and Common name Scientific name Where listed or threatened Status applicable rules

******* Birds

******* Cuckoo, yellow-billed Coccyzus U.S.A., Canada, Western DPS: U.S.A. (AZ, CA, CO (west- T 79 FR 59991, 10/3/ [Western DPS]. americanus. Mexico, Central ern), ID, MT (western), NM (western), 2014; 50 CFR and South Amer- NV, OR, TX (western), UT, WA, WY 17.95(b).CH ica. (western)); Canada (British Columbia (southwestern); Mexico (Baja Cali- fornia, Baja California Sur, Chihuahua, Durango (western), Sinaloa, Sonora).

*******

■ 3. In § 17.95, amend paragraph (b) by extent with an overstory and understory and intermittent drainages, adding an entry for ‘‘Yellow-billed vegetation component in contiguous or Southwestern riparian breeding habitat Cuckoo (Coccyzus americanus), Western nearly contiguous patches adjacent to is often narrower, patchier, and/or DPS’’ after the entry for ‘‘MARIANA intermittent or perennial watercourses. sparser than rangewide riparian CROW (CORVUS KUBARYI)’’ to read as The slope of the watercourses is breeding habitat and may contain a follows: generally less than 3 percent but may be greater proportion of xeroriparian trees greater in some instances. Nesting sites and large shrub species. Although some § 17.95 Critical habitat—fish and wildlife. within the habitat have an above- cottonwood and willow may be present * * * * * average canopy closure (greater than 70 in Southwestern riparian habitat, (b) Birds. percent), and have a cooler, more humid xeroriparian species may be more * * * * * environment than the surrounding prevalent. Mesquite woodland may be riparian and upland habitats. present within the riparian floodplain, Yellow-Billed Cuckoo (Coccyzus Rangewide breeding habitat is flanking the outer edges of wetter americanus), Western DPS composed of varying combinations of riparian habitat, or scattered on the (1) Critical habitat units are depicted riparian species including the following adjacent hillsides. The more arid the for Arizona, California, Colorado, Idaho, nest trees: Cottonwood, willow, ash, drainage, the greater the likelihood that New Mexico, Texas, and Utah, on the sycamore, boxelder, alder, and walnut. it will be dominated by xeroriparian and maps in this entry. (B) Southwestern breeding habitat. nonriparian nest tree species. Arid (2) Within these areas, the specific Southwestern breeding habitat, found ephemeral drainages in southeastern physical or biological features essential primarily in Arizona and New Mexico, Arizona receive summer humidity and to the conservation of western yellow- is more variable than rangewide rainfall from the North American billed cuckoo consist of three breeding habitat. Southwestern breeding Monsoon, with a pronounced green-up components: habitat occurs within or along of grasses and forbs. These arid (i) Rangewide breeding habitat. perennial, intermittent, and ephemeral ephemeral drainages often contain Riparian woodlands across the Distinct drainages in montane canyons, foothills, xeroriparian species like hackberry or Population Segment (DPS); desert floodplains, and arroyos. It may nonriparian species associated with the Southwestern breeding habitat, include woody side drainages, terraces, adjacent habitat type like oak, mesquite, primarily in Arizona and New Mexico: and hillsides immediately adjacent to acacia, mimosa, greythorn, and juniper. Drainages with varying combinations of the main drainage bottom. Drainages In southeastern Arizona mountains, riparian, xeroriparian, and/or intersect a variety of habitat types breeding habitat is typically below pine nonriparian trees and large shrubs. This including, but not limited to, desert woodlands (∼6,000 ft (1,829 m)). physical or biological feature includes scrub, desert grassland, and Madrean (ii) Adequate prey base. Presence of breeding habitat found throughout the evergreen woodlands (presence of oak). prey base consisting of large insect DPS range as well as additional Southwestern breeding habitat is fauna (for example, cicadas, caterpillars, breeding habitat characteristics unique composed of varying combinations of katydids, grasshoppers, large beetles, to the Southwest. riparian, xeroriparian, and/or dragonflies, moth larvae, spiders), (A) Rangewide breeding habitat nonriparian tree and large shrub species lizards, or frogs for adults and young in (including areas in the Southwest). including, but not limited to, the breeding areas during the nesting season Rangewide breeding habitat is following nest trees: Cottonwood, and in post-breeding dispersal areas. composed of riparian woodlands within willow, mesquite, ash, hackberry, (iii) Hydrologic processes. The floodplains or in upland areas or sycamore, walnut, desert willow, movement of water and sediment in terraces often greater than 325 ft (100 m) soapberry, tamarisk, Russian olive, natural or altered systems that in width and 200 ac (81 ha) or more in juniper, acacia, and/or oak. In perennial maintains and regenerates breeding

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habitat. This physical or biological prey species production and vegetation based are available to the public at the feature includes hydrologic processes regeneration and growth. Elevated Service’s Sacramento Fish and Wildlife found in rangewide breeding habitat as humidity is especially important in Office’s internet site at http:// well as additional hydrologic processes southeastern Arizona, where cuckoos www.fws.gov/sacramento, or on http:// unique to the Southwest in breed in intermittent and ephemeral www.regulations.gov at Docket No. southwestern breeding habitat: drainages. FWS–R8–ES–2013–0011. You may (A) Rangewide breeding habitat (3) Critical habitat does not include obtain field office location information hydrologic processes (including the humanmade structures (such as by contacting one of the Service regional Southwest). Hydrologic processes buildings, aqueducts, runways, roads, offices, the addresses of which are listed (either natural or managed) in river and bridges, and other paved or hardened at 50 CFR 2.2. reservoir systems that encourage areas as a result of development) and sediment movement and deposits and the land on which they are located (5) Unit 1: CA/AZ–1, Colorado River promote riparian tree seedling existing within the legal boundaries of 1; Imperial, Riverside, and San germination and plant growth, the critical habitat units designated for Bernardino Counties, California, and maintenance, health, and vigor (e.g., the species on May 21, 2021. Due to the Yuma and La Paz Counties, Arizona. lower-gradient streams and broad scale on which the critical habitat This unit was excluded from the floodplains, elevated subsurface boundaries are developed, some areas designation pursuant to section 4(b)(2) groundwater table, and perennial rivers within these legal boundaries may not of the Act. and streams). In some areas where contain the physical or biological (6) Unit 2: CA/AZ–2, Colorado River habitat is being restored, such as on features and therefore are not 2; San Bernardino County, California, terraced slopes above the floodplain, considered critical habitat. and Mohave County, Arizona. This unit this may include managed irrigated (4) Data layers defining map units was excluded from the designation systems that may not naturally flood were created on a base of the Natural pursuant to section 4(b)(2) of the Act. due to their elevation above the Resources Conservation Service (7) Unit 3: AZ–1, Bill Williams River; floodplain. National Agriculture Imagery Program (B) Southwestern breeding habitat (NAIP 2011), and critical habitat was Mohave and La Paz Counties, Arizona. hydrologic processes. In southwestern then mapped using North American This unit was excluded from the breeding habitat, elevated summer Datum (NAD) 83, Universal Transverse designation pursuant to section 4(b)(2) humidity and runoff resulting from Mercator Zone 10N coordinates. The of the Act. seasonal water management practices or maps in this entry, as modified by any (8) Unit 4: AZ–2, Alamo Lake, weather patterns and precipitation accompanying regulatory text, establish Mohave and La Paz Counties, Arizona. (typically from North American the boundaries of the critical habitat This unit was excluded from the Monsoon or other tropical weather designation. The coordinates or plot designation pursuant to section 4(b)(2) events) provide suitable conditions for points or both on which each map is of the Act.

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(9) Unit 5: AZ–3, Hassayampa River; Maricopa County, Arizona. Map of Unit 5 follows:

Yellow BiRed Cuckoo Critical Habitat Unit 5: AZ-3 Hassayampa River Maricopa County, Arizona

/ r' /

MARICOPA

__,.....• J-, _,, ... ..,, ... .,,.,·

,,,., ...... --.. .,,,.. -···---.

-···-··· Ri.

--Road/Highway

~ __ ~ Cointy Boundary E22::) Cdk:al Habitat 0--•c:::c::::::1••---•Miles 2 4 0 1 2 4 Kiometers l.ocalional Index

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(10) Unit 6: AZ–4, Agua Fria River; Yavapai County, Arizona. Map of Unit 6 follows:

Yellow BiDed Cuckoo Critical Habitat Unit&: AZ-4 Agua Fria River Yavapai County, Arizona

-···-··· RNe!"slSlreams

--Road/Highway 1222] Cliical Habitat 0--=:::::i---•ltliles 2 4 0 1 2 4 ■--=:::::11--Kilometers Localiooal Index

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(11) Unit 7: AZ–5, Upper Verde River; Yavapai County, Arizona. Map of Unit 7 follows:

Yellow Billed Cuckoo Critical Habitat Unit 7: AZ-5 Upper Verde River Yavapai County, Arizona

COCONINO CO ------~----- ~ •I

UNIT7

YAVAPAI CO

-···-··· Rilers/Slreams

--Roadll-ligl!way

~ __ ~ COllll!y Boundary ~ Cmcal Habitat - OttlerCrlica! Habitat Umts

0 2.5 5 10 0--==----•Miles 25 5 10 Localonal Index ■--==--■ Kiometers

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(12) Unit 8: AZ–6, Oak Creek; Yavapai and Coconino Counties, Arizona. Map of Unit 8 follows:

Yellow Billed Cuckoo Critical Habitat Unit 8: AZ-6 Oak Creek Yavapai and Coconino Counties, Arizona

··,._ ...... '"i \ \ ...... _( ~- ·.'= i

_i

-···-··· RN1Ms/Slr&ams

-- Road/Highway ~-_-: J Comfy Booodaly ~ Cdical Haliitat

- OO!erCrlical Habffat Units

0 2 4 8 Miles l..ocaliooal Index 0 2 4 8 Kilomelers

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(13) Unit 9: AZ–7, Beaver Creek; Yavapai County, Arizona. Map of Unit 9 follows:

Yellow Biled Cuckoo Critical Habitat Unit 9: AZ-7 Beaver Creek Yavapai County, Arizona >---___,, _.,,.,~· r/ / ' / YAVAPAl(C i

-···-··· RilerslSlreams --RoadlHigtlway E::Z:I Criical Habitat - Olller Cl"tical Habitat UniJs

(I ---====----•Miles2 4 0 1 2 4 l.ocalronal Index ■--==--•Kllomelers

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(14) Unit 10: AZ–8, Lower Verde County, Arizona. Map of Unit 10 River and West Clear Creek; Yavapai follows:

Yellow Billed Cuckoo Critical Habitat Unit 10: AZ-8 LowerVerde River and West Clear Creek Yavapai County, Arizona

YAVAPAI CO

-···-··· RilerslSlreams --Road'Highway E:223 Cdical Habitat - other Cdical Habitat Unils

(I 2 4 0---==::::::1-----•Miles--====----Kiomet~s 1 2 4

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(15) Unit 11: AZ–9A and AZ–9B, Yavapai Counties, Arizona. Maps of (i) Map of Unit 11: AZ–9A, Horseshoe Horseshoe Dam; Gila, Maricopa, and Unit 11 follow: Dam.

Yellow Billed Cuckoo Critical Habitat Unit 11: AZ-9A Horseshoe Dam Gila and Yavapai Counties, Arizona /

-···-··· Rilera.lSlreams ~ _- ~ i County Bom!daty (222] Criical Habilal

0 1.5 3 6 Miles 0 1.5 3 6 - l

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(ii) Map of Unit 11: AZ–9B, Horseshoe Dam.

Yellow Billed Cuckoo Critical Habitat Unit 11: AZ-98 Horseshoe Dam Maricopa County, Arizona r ..j __; / ,.r·' .. / ..I ...3

'\..

i ! _/ .. ., / ___ ...,., ... 1 /.J'"' .r·-..,..,, ..,...., ____ _..,,_:rr• .. _, __ .,,,.--~-"'·_,,. ... -.. .r···' \ ,· r I / ./ f ,-,r"'.f_.,...... ( f _.,/ ,; /"✓ ,,.---;/ [.J \ {"' (_., ,.; ,...., .. --;-/ > / l.. I. < MARICOPA CO

------Riv&rs/Streams f:: j County Boundary ~ Critical Habitat

0 0.5 2 Miles 0 0.5 2 Kilometers Loc;atlonal Index

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(16) Unit 12: AZ–10, Tonto Creek; Gila County, Arizona. Map of Unit 12 follows:

Yellow Billed Cuckoo Critical Habitat Unit 12: AZ-10 Tonto Creek Gila County, Arizona

-···-··· RilerslSlreams 1:2221 Crti<:al Habilat

0 1 2 4 Miles 0 2 4 Kiometer:s localiooa! Index

(17) Unit 13: AZ–11, Pinal Creek; Gila excluded from the designation pursuant County, Arizona. This unit was to section 4(b)(2) of the Act.

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(18) Unit 14: AZ–12, Bonita Creek; Graham County, Arizona. Map of Unit 14 follows:

Yellow Billed Cuckoo Critical Habitat Unit 14: AZ-12 Bonita Creek Graham County, Arizona

\,. ,.,/ i. r ·,. :'1: .i \ \ ... , / \ / ,. / i._ i ,. ... \ l. •. ..f \ .. l .. ,· ...... \~ \.___ ' ··-, ...... ~. ,...,.. i !, 'i l. / i ,...... / \ -··.._ .. .,.,_/ \ \\,,-, \ ... '-. ) '·, / '·-, r' ·.:..,. _,/ ~ ,./ ··"(_.. _,,. .. -..i

··, ...... °! \

-···-··· Rilera/Slreams

~ Qlical Hallilat

0 2 4 Miles 0 2 4 KiolllElers

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(19) Unit 15: AZ–13, San Francisco River; Greenlee County, Arizona. Map of Unit 15 follows:

Yellow BiHed Cuckoo Cri1ical Habitat Unit 15: AZ-13 San Francisco River Greentee County, Arizona ') / •• ✓- f ,,,-· / r' -~-- ~.. ,,,,,,_ ...... ___ --- ,.,,,, . / r··/ / ('\ ! ( .,, -~ ,.· / I .,~•• •• I J't·.._,. J ,-·{-, ··-..•. ...._ ... _,.,!

\.. .. __ _ ··- ·--. __ ,.. __ /'-...... °'\ !·~

j

-···-··· ruteral-Slreams E2Z'] Cdkal Habitat

0 0.5 2 0---====-----Miles---==---l

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(20) Unit 16: AZ–14, Upper San Pedro River; Cochise County, Arizona. Map of Unit 16 follows:

Yellow Billed Cuckoo Critical Habitat Unit 16: AZ-14 Upper San Pedro River Cochise County, Arizona

COCHISE CO

MEXICO

- .. ·- Rlll!niilSlnama -MaJorRmd ! -_ ~ CO ■ llly BHIHlary Clsra1e1ca■RIJ Bm1111\11;11y E22I Crllca1tlU1lat 1111 ruerc•a1 Hlblal 0--===----Miles 5 10 20 0---===---i

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(21) Unit 17: AZ–15, Lower San Pedro Gila Counties, Arizona. Map of Unit 17 River and Gila River; Pima, Pinal, and follows:

Yellow BiUed Cuckoo Critical Habitat Unit 17: AZ-15 Lower San Pedro and Gila Rivers Pinal, Pima, and Gila Counties, Arizona

GILA CO

I I I 'I I \ I I 0 I 0 I l I _,..-~--, lI I ~r~ ' \ I I \ I PINAL CO \ I I I I l I I \ 1 I '

-···---- Rivenlstreams

-- Roa~ghway

~ __ ~ County Boundary ~ Clffical Hal:ti!al - OlhetClilicatHabitalUnits

0 5 10 20 ---====-----•Miles locational Index 0 5 10 20 Ktometers

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(22) Unit 18: AZ–16, Sonoita Creek; Santa Cruz County, Arizona. Map of Unit 18 follows:

Yellow BiRed Cuckoo Critical Habitat Unit 18: AZ-16 Sonoita Creek Santa Cruz County, Arizona .. -' ( \ \ \ ·, 11,.. '·,,..._ \._ \ \ ·, \ t -...... \ ·---.,)'--·, ...

,,.,·-·,,,'".._, ... '= ..,

\ ..

·--...... ,, ... ,_

f_.,.,.. _.,.. -~ (/"''•·~--...... /

-···-··· Rilll1's1Slreams

-- Roadn-lfgllway [223 Cl!lical Habitat

0 2 4 Miles 0 2 4 --=:::::i---•Klomelers t.ocaliOllllll Index

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(23) Unit 19: AZ–17, Upper Cienega Creek; Pima County, Arizona. Map of Unit 19 follows:

Yellow Billed Cuckoo Crilcal Habitat Unit 19: AZ-17 Upper Cienega Creek Pima County, Arizona

{ \. l. ... _...\ L ...... \.."\,,

·,., ...... \ / PIMA CO \ \.. , ·.,._ \ "•\ ·, '·;:, ·-s-L._ =..... ,.":!.•-.,,.. __..-·,,...···----. c, L, ·-,, ·-.. '-,.,,_ --"'-,. ·\, ...... ,,,.•,"'-·--- .. ---•...... , ·, ....::.,--.. ---.. __ --~ ...... -,i.- ✓ ------.,,.,-· ...... f'._,..,,--."1.--·/J ···, ... __ .. .,.,,_ ...... , --~ ·...... ---·

.-'I... \ .. -~-- ,._ ...._ __ .,... . ._, .--..,

-···-··· Rivers/streams

-- Road/Highway

~ __ ~ County Boundary ~ Critical Habitat

- Olher Clilk:al Habilal Units

0 2 4 Miles Localiooal Index 0 2 4 Kiome:ers

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(24) Unit 20: AZ–18, Santa Cruz River; Santa Cruz County, Arizona. Map of Unit 20 follows:

Yellow BiDed Cuckoo Cri1ical Habitat Unit 20: AZ-18 Santa Cruz River Santa Cruz County, Arizona

...... ,__

MEXICO 0

-···-··· RiVerslS!reams -- Roadff-lighway D NallonalBoundary E2ZJ Coocal Habitat - Olher Criieal Hallilal Units

0 2 4 8 Miles 0 2 4 8 Klometers

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(25) Unit 21: AZ–19, Black Draw; Cochise County, Arizona. Map of Unit 21 follows:

Yellow Billed Cuckoo Critical Habitat Unit 21: AZ-19 Black Draw Cochise County, Arizona

·, COCHJSE CO \

\,_ \ ... , l \ \ \ .. ·, __ '-.. \. ··,......

ARIZONA

-···-··· Rivers/Slreams D National BOllilldary (:2Z) OriticalHallirat

0 0.25 0.5 1

0--c:::==---- 0.25 0.5 1 ■ Mlles ■--==--•Kiometers

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(26) Unit 22: AZ–20, Gila River 1; Graham County, Arizona. Map of Unit 22 follows:

Yellow BiDed Cuckoo Cri1ical Habitat Unit 22: AZ-20 Gila River 1 Graham County, Arizona

I I I •I 'I, n ~- 0 ! '• GRAHAM CO I...

-----···- Rivers/Streams :::: Road/Highway : ___ : County Boundary

~ Critical Habitat - other Critical Habitat Units

0 5 10 2D 0----=====------•Miles--==----!aometers 5 10 20 localiooal index

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(27) Unit 23: AZ–21, Salt River; Gila County, Arizona. Map of Unit 23 follows:

Yellow BiHed Cuckoo Critical Habitat Unit 23: AZ-21 Salt River Gila County, Arizona

,_; / { ,,.,··· _,,.,·· / r--­ .-✓·· ) , / _,,,-----.,,..- ; ! j ! I i { ! I .....i GILA CO i \ I \ ... ,., i ,···-···"' ...... I / '·. / / '\ I \ ... \, '\ \,

I/i i ; / I / \

.. ,•---··\ \ \.__

i..,.: L-/ (_ \._ '-. 0

_,, _____ Rivers/streams

--Highway 1222) Crttic.a!Habil.at

0 0.5 2 0----=====------0.5 1 2 ■ Miles ---====-----Kiometers I.De a!ion.al Index

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(28) Unit 24: AZ–22, Lower Cienega Creek; Pima County, Arizona. Map of Unit 24 follows:

Yellow BiHed Cuckoo Critical Habitat Unit 24: AZ-22 Lower Cienega Creek Pima County, Arizona

··-...... _. __ '-

/

(_

/ _,,, _ .. .,,...: ../ ,.. ___ ../ ,_..... /

... ✓ ;...... -

) ) j '·,.•.~- i ') ) ;, i j 1 ) \ ':;, i \

0,.J

-···-··· River.s/Slreams

-- MajOf Road

~ ClillcalHal:iilat

0 2 4 0----======:::::i------•Mlles 1 2 4 --c:::==----■ Klometers

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(29) Unit 25: AZ–23, Blue River; Greenlee County, Arizona. Map of Unit 25 follows:

Yellow Billed Cuckoo Critical Habitat Unit 25: AZ-23 Blue River Greenlee County, Arizona \ ...... 1- ...... 1 \.

·-....

-···-··· Riversfstreams ~ Critical Habitat

0 2

0 1 2 4 KlomElers

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(30) Unit 26: AZ–24, Pinto Creek South; Gila and Pinal Counties, Arizona. Map of Unit 26 follows:

Yellow Siled Cuckoo Critical Habitat Unit 26: AZ-24 Pinto Creek South Gila and Pinal Counties, Arimna ·-·------···-·-- ...... / ..... t ~ .. -... - ..•

/,,,.,.,.--·-\...... \. /

GILA CO ~··- ...... /""•""'= •• ._..··-···\.,,,.,,_

') /,...... · ...... ___ \ \ ,! \ ·\._ ./ "·· ·-···, ... --...:;.·~· \ ', l, ···1 \ ) l. i,···-·\.\ ·,. PINAL CO ...,__ ··,.. \._ \ ...... _·,_ i._ 0

-···-··· Rivers/streams

~ __ ~ County Boundary IZ::ZJ Critical Habitat

II 11.5 2 0----====------Miles 0.5 2 Kiometers

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(31) Unit 27: AZ–25, Aravaipa Creek; Pinal and Graham Counties, Arizona. Map of Unit 27 follows:

Yellow BiUed Cuckoo Critical Habitat Unit 27: AZ-25 Aravaipa Creek Pinal and Graham Counties, Arimna

/""\., • I l :. ~ i . ·, """:,.!, .I ,' s \ J I 'I ·-....:;.t"! / \ '\., . ) '-·~· ( ·. ,, ·, I l . ) i' ., .J i ) ' . . • ,,. •....,~---~ t··, (... : / ~-~r; ...... -t::_, -. ·,\_ \ ~ ,... _, .. -_)j ) -·· '( ./ --r r-•-..,~-:.:--< ·,., __ .. / \

-... _s-:~.--_,;:_·.::·-::..._.-.:- . ( i ...... ,·\ ...... ,,.)· _r··-~~~-,. /_• .,...... _\":"._ - __lr;.:;:~~ ,:..,,,Lr\="t.t'"",1...... - ···~. f ~ ;_t:.::.. ( \,,... ;"'" ...... ,..,.-...... , ...... _/'"'

, ~--- _J•' )-· .;~-~)-./

l I. \

. . ,,. --~ -~-----./ - -.... .,; ----...J.-,------" ---- ·-r o··,· ,. ·.-..~----~----·;_;_>,J_.:~~.,,.. ,.,,.,.-.,.r•·.r ,.,,.( .,...) ~ _;-- ...... , F-- ) , : ._...,~ -. ,./; (>,, .. /;._; ...- --~~:.J. '-~--- r_ { \ "I --·vi

-- Highway -···-··· Rivers/streams

~ -- ~ County Boundary ~ Critical Habllal - Olher Critical Habital I.Jnis

0 2 4 8 Miles locational Index 0 2 4 8 Klorreers

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(32) Unit 28: AZ–26, Gila River 2; Graham and Greenlee Counties, Arizona. Map of Unit 28 follows:

Yellow Siled Cuckoo Cri1ical Habitat Unit 28: AZ-26 Gila River 2 Greenlee and Graham Counties, Arizona

GRANT co

-·------

GRAHAM CO

-···---- Rivers/streams -- Road/Highway

~ - - ~ County Boundary D state Bounda.iy E2ZJ Cmical Habilal - OlherC!iliicalHabilat Units 0---====-----•Miles 5 10 20 locational Index 0--====---•l

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(33) Unit 29: AZ–27, Pinto Creek North; Gila County, Arizona. Map of Unit 29 follows:

Yellow Siled Cuckoo Critical Habitat Unit 29: AZ-27 Pinto Creek North Gila County.Arizona /

•--.. -···1 ···, ... ,_ GJLA CO \ \. i ( r--. \. \

\ ·, . ....,__

··, "\ _/ ···, .. ·•... .,.,-···-' :..... \ \. ... ·...... \ ' .. ..,__ \ 1. ~ ... ___ .. .,,}'"'-.

·.'=, '\.... .,...,,. ·, ···--...... '-·, ·· ...... ·,

/ ,.-···-·-·--···--···/·

-···-···- Rive!S/Streams : ___ : County Bound.uy ~ Critical Habitat

0---====------Miles Q5 1 2 0---==----Kilometers Q5 1 2

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(34) Unit 30: AZ–28, Mineral Creek; Pinal and Gila Counties, Arizona. Map of Unit 30 follows:

Yellow BiRed Cuckoo Critical Habitat Unit 30: AZ-28 Mineral Creek Pinal and Gila Counties, Arizona

r·,.

··~···-·--, .. \ '·1 ""\ \ __ ,,, ...... \ r· ) \ r

\ __,,,,· \ .( _.,-·-\. --..., ...... :-;.:r· \ ,i ___ _,, ... __ ,_,/" -- ...... -···---·,,,. (',·· \ ... ,_.-···1··,,,.··- .---., \ ___ .,,,... PINAL co/ ,,.i ,,,-· /./ ,· .----·- I l /" __:.-·

-···-··· HiveifslSlreams

: = = ~: Ccmty Boonda!y ~ Cdical Habilal

0 0.5 2 0---=====------Miles 0.5 1 2 ---==----Kiometers tocaional Index

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(35) Unit 31: AZ–29, Big Sandy River; Mohave County, Arizona. Map of Unit 31 follows:

Yellow Billed CUckoo Critical Habitat Unit 31: AZ-29 Big Sandy River Mohave County, Arimna

-- Road/Hlgllway -···-··· RNers/Slream

~: ~ i Co!mty Bolmda,y IZ::zl Qfical Hallilal

0 3 6 12 Miles Localiooal Index 0 3 6 12 Kilomelers

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(36) Unit 32: NM–1, San Francisco River; Catron County, New Mexico. Map of Unit 32 follows:

Yellow Billed Cuckoo Critical Habitat Unit 32: NM-1 San Francisco River Catron County, New Mexico

--Highway -···-··· RiterslSIJeams ~ _-: ~ Coul!ly Boundafy [;223 Criical Habial

0 2 -4 8 Miles 0 2 4 8 Kilometers l..oca!ionail Index

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(37) Unit 33: NM–2, Gila River; Grant County, New Mexico. Map of Unit 33 follows:

Yellow Biled Cuckoo Critical Habitat Unit 33: NU-2 Gila River Grant County, New Mexico , r i r.i '\_,......

·.. ) ·,.,_~ ) r {

=..... _

_,..,,-

_,. . ...,_;

-----··· RNerslS.lreams -- Road/Highway E:Z:] Cmcal Habitat

0 2 4 8 Mi-les 0 2 4 8 Kilometers localional Index

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(38) Unit 34: NM–3A and NM–3B, (i) Map of Unit 34: NM–3A, Mimbres Mimbres River; Grant County, New River. Mexico. Maps of Unit 34 follow:

Yellow EliUed Cuckoo Critical Habitat Unit 34: NM-3A Mimbres River Grant County, New Mexico

GRANT CO

\ I ) !___

UNIT34

! ( ··-···-···-···--···,. ·,... I \ / ... =...... _' /./ \._ .. ,\. ______... .,,.. ... /

--Highway -···-··· Rivers/Streams [::221 Clllical Habitat

(I 0.5 2

0----======:::::1------0.5 2 ■ Miles Kilometers

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(ii) Map of Unit 34: NM–3B, Mimbres River.

Yellow Billed Cuckoo Critical Habitat Unit 34: NM-3B Mimbres River Grant County, New Mexico

------...,...... ,...~­ _i ··--.. .. ~- i

,.~ ...... ! ·---...... _____ . GRANT CO i -...... ,. _____ ...... ---- f i ! ! i / ; i \ ( j / (' / .i ! / / r UNIT34 /

--.__ ·, ...... ( ;....__ / ·-...... /_j .---·--· '··.'··-, ·-.\ \ ~-··,_ -.._ __ -~---.. ·,.__ ) ----, '•·-x.__ ·--~\ '··-- '· !

--Road/Highway -···---- Rilers/Slreams ~ Cdical Habitat

0 0.5 1 2

0----===:::::i------•Miles 0.5 2 ---==::::::i----•Kilomet~s

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(39) Unit 35: NM–4, Upper Rio Grande 1; Rio Arriba County, New Mexico. Map of Unit 35 follows:

Yellow Billed CUckoo Critical Habitat Unit 35: NU-4 Upper Rio Grande 1 Rio Arriba County, New Mexico

.,...... _.,,.· .,...... -·--~·· . \

RIO ARRIBA CO

\ ::, \ ···, ...,. \ .. _... , ... , __

I \ "'\ ...... \ ·, .. \ / ··,.,. ___ _

-- Roadll-lighway -···-··· !Rilers/Slreams ~ Qtica!Habitat

0 0.5 2

0•••===-•--••Miles 0.5 1 2 ■--c::=---•l

(40) Unit 36: NM–5, Upper Rio Counties, New Mexico. This unit was excluded from the designation pursuant Grande 2; Santa Fe and Rio Arriba to section 4(b)(2) of the Act.

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(41) Unit 37: NM–6A and NM–6B, Mexico. Unit 37: NM–6A was excluded 4(b)(2) of the Act. Map of Unit 37: NM– Middle Rio Grande; Sierra, Socorro, from the designation pursuant to section 6B, Middle Rio Grande, follows: Valencia and Bernalillo Counties, New

Yello\V Billed Cuckoo Critical Habitat Unit 37: NM-6B Middle Rio Grande socorro and Valencia counties, New Mexico \\.--______,,_-

', Al~ ff \ .J:Cs:.::::::::..1..-, l ' ' BERNAU • ------. l .. 'I CIBOLA CO \ ' •I _J\ VALENCIA__ CO . --r------I \ I t I

\ SOCCOROCO \ l

£;:a 0z 0 0 r-- \ LIN I

------•---- ~I SlERRACO ~

-- Roadll-lighway -···---- River slstreams

~ __ ~ County Boundary ~ Olillcal Hallital

0 10 20 40 ---===:.. ____Miles o--===---Kiomelers 10 20 40 locatiooaf Index

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(42) Unit 38: NM–7, Upper Gila River; Grant and Hidalgo Counties, New Mexico. Map of Unit 38 follows:

Yellow BiDed Cuckoo Crifical Habitat Unit 38: NM-7 Upper Gila Grant and Hidalgo Counties, New Mexico

------~. GRANTCO /

I HIDALGO CO I I

•I

I I I •••••••••- •-•-•••••••••--•

0

--Roadfl-lighway -···---- Rivers/streams

~ __ ~ County Boundary E22a Clitical Habilal

0----=====------•Miles 2.5 5 10 0--c=:==----Kilometers 2.5 5 10 localional Index

(43) Unit 39: NM–8A, Caballo Delta (44) Unit 40: NM–9, Animas; Sierra New Mexico. This unit was excluded North and NM–8B, Caballo Delta South; County, New Mexico. This unit was from the designation pursuant to section Sierra County, New Mexico. This unit excluded from the designation pursuant 4(b)(2) of the Act. was excluded from the designation to section 4(b)(2) of the Act. pursuant to section 4(b)(2) of the Act. (45) Unit 41: NM–10, Selden Canyon and Radium Springs; Don˜ a Ana County,

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(46) Unit 42: AZ–30, Arivaca Wash and San Luis Wash; Pima County, Arizona. Map of Unit 42 follows:

Yellow Billed Cuckoo Critical Habitat Unit 42: AZ-30 Arivaca Wash and San Luis Wash Pima County, Arizona

-- Road/Highway -···-··· RNerslSIJeams E22J Cllical Hallitat

0 1.25 2.5 5 Miles 0 1.25 2.5 5 l

(47) Unit 43: AZ–31, Florida Wash; Pima and Santa Cruz Counties, Arizona. Map of Unit 43 follows:

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Yellow BiHed Cuckoo Critical Habitat Unit 43: AZ-31 Aorida Wash Pima and Santa Cruz Counties, Arizona

···-...... ,_ ...... --···--·' .._. --~ ----...... ~···, ··-, ...... '\ ·---. ·------, ... ~---,_ ·---. \ ...... PIMA CO \ ··, \ ...... \ ...... ! ~-··1 \ '\ ·-...... '\ \ ···\ ......

~---\ ... , ... , __ \ r··· ) / '/ '••, ...,. \ '!, j \ ~ \,...... ~ ·, .. ___ _ l_ i ) \ i \ \ ··., j \_

_., ______,---- _.,,, 'I ___.. ✓..::·::· ______.!

,,,.J' SANTA CRUZ CO 0

------River sfstreams ~: ~ ~ Counly Boundary

~ Cmical Habitat

Ol'ler Cmical Habitat Units

0 0.5 2 ----=====------■ Miles 0 0.5 1 2 --==----Klometers localiooa! Index

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(48) Unit 44: AZ–32, California Gulch; Santa Cruz County, Arizona. Map of Unit 44 follows:

Yellow Ellled Cuckoo Critical Habitat Unit 44: AZ-32 California Gulch Santa Cruz County, Arizona

/ ,, ... ,; r'· i. / ../ I ,· /

~­...... \ \ i·, ---,,..·, .. ,__./) \ "i.', :-,.,•' ._,..,.l._.,.... \ ·...... \ \ .. ,._r--.f\,... , \ ~ ·'-· i; ·-·,,.,. ... < \ \, i. ·,. SANTA CRUZ CO i...... ,. \ ;i i ; !

--Road -···-·•· RNerslSlleams D Nafiooal BourniaJy ~ Qiical Habitat - ottlerCrtica! Habitat Units 0---====------Miles 0.5 2 o--====----Kwmme,-s o.5 2 Localiooal Index

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(49) Unit 45: AZ–33, Sycamore Canyon; Santa Cruz County, Arizona. Map of Unit 45 follows:

Yellow Ellled cuckoo Critical Habitat Unit 45: AZ-33 Sycamore Canyon Santa Cruz County, Arimna

~- ··-...... \ \ __

, ...... , .. i, SANTA CRUZ CO \_ \ i '-·, <:·) '-i_ \

,.,...,·•--., .. , ......

i,-

_.... -·-... .. ,,..• i ... .._,-... \ __ 1;· ...... J.-·J' '· r- \,r~- .. .,.\'--,,,,,__ r-· ··,.. s ,,.. ·-- -- ...... ____ \.

-- Road/Highway ---·-··· Rwers/Slreams D Slale/Counliy Boundary ~ Cdkal Habitat

0 0.5 2 Miles 0 0.5 1 2 Locational Index --====----Kilometers

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(50) Unit 46: AZ–34, Madera Canyon; Pima and Santa Cruz Counties, Arizona. Map of Unit 46 follows:

Yellow Billed Cuckoo Critical Habitat Unit 46: AZ-34 Madera Canyon Pima and Santa Cruz Counties, Arimna ...... , ,..... ··,,.

PIMA CO

----- ..

_~.,.l .. __ .,. ______~_ \ \ ...... •·- ... , ...'\ ...... , ...... ~-. -~-,... ,..···--· SANTA CRUZ CO

_.,.,,.. ---- ...... -- __ , .. ..,... .. ,,,.-•"" .,,, . .. ,.,,.. .. ____ ,-... _...... ,.,. .. ,_, ··-···, ... \ ·, \ \. '! / ( 0

--Road -···-··· RifersJSlreams f:: i Comty Boumlaiy 1222) a.ical Habitat - OttlerCrlicalHabitaHJnits

0 0.5 2 Miles 0 0.5 1 2 Localiooal Index ■--==---■ Kiomelers

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(51) Unit 47: AZ–35, Montosa Canyon; Santa Cruz County, Arizona. Map of Unit 47 follows:

Yellow Billed CUckoo Critical Habitat Unit 47: AZ-35 Montosa Canyon Santa Cruz county, Arizona

SANTA CRUZ CO .-..--,,,.~··__,.

/

) .,.., ... --·· (_ ( ,,,.r·----. .. --···o...... --···i _( r· /

f

0

--Road -···-··· RNerslSlreams E:;23 Cdk:al Habilat

0----====------Miles 0.5 2 0---===----•Klometers 0.5 1 2

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(52) Unit 48: AZ–36, Patagonia Mountains; Santa Cruz County, Arizona. Map of Unit 48 follows:

Yellow Billed Cuckoo Critical Habitat Unit 48: AZ-36 Patagonia Mountains Santa Cruz County, Ari.mna

...... ,

_,,.,. __ ./"• .. - .. / r ·--···--... ) _,,,,.· \ __,. .. i

.J

-- Road/Highway -···-··· Rivers/Streams (223 Cmcal Halli!at

0••c:::::::i••--Miles 0.5 2 0 0.5 1 2 ■--==••■ Kiometers Localiooal Index

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(53) Unit 49: AZ–37, Canelo Hills; Santa Cruz County, Arizona. Map of Unit 49 follows:

Yellow Billed Cuckoo Critical Habitat Unit 49: AZ-37 Canelo I-Ills Santa Cruz and Cochise Counties, Arizona

/

( ::/ ! _j < ,,)~--- .. -· "···,,_ ! /

·\._ \... •--·''"

_ _; \ SANT(' CRUZ ,CQ. \ ! ·. ·. t

/ .. \ _,,..- \ _.,...,. ______,,,.. ,....._ __ _ _.,..._.-·

--Highway -···-··· Rillera/Sire-ams C: ~ i eomty Boundary E2ZI Cd.ical Habitat Olher 0-ilical Habitat Unils

0 0.5 1 2 --===---•Miles localional Index 0 0.5 1 2 ■--=:::::i--Kiomelers

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(54) Unit 50: AZ–38, Arivaca Lake; Pima and Santa Cruz Counties, Arizona. Map of Unit 50 follows:

Yellow BiUed Cuckoo Critical Habitat Unit 50: AZ-38 Arivaca Lake Santa Cruz and Pima Counties, Arizona ~-- \ 1.. _ ·.\ '···--.. \ .. 1. ·.\

\ ... , ...... _ i. ··, \ \ .. ,.. '\ ...... ~...... r,,.! ---·-··~---"""! \.. i...-···1. \ ''i ,..\ \ (_ ( ~.. / i J···, \_ \ \ .i r SANTA CRUZ CO<. ;, ··1,. /,./ h r.:.j / {_ .. / ,,. .. \ ...... ( ...... __ -...... ~_ .\ \. ' ) \ ..i ,.r 0./) .i

-- RoadlHighway -···-··· Rilera/Slreams C: ~ .! Comly Boundary ~ Crllical Habitlt

0 0.5 2 0---c::::==:::::i------Miles 0.5 1 2 •--==----Kiometers l..oc.alional Index

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(55) Unit 51: AZ–39, Peppersauce Canyon; Pinal County, Arizona. Map of Unit 51 follows:

Yellow Billed Cuckoo Critical Habitat Unit 51: AZ-39 Peppersauce Canyon Pinal and Pima Counties, Arimna

''-···------···,,,. ... _... ,'"

PINAL CO \ \...... ,,, ...... -... , '··

/

-- Road.11-!ighway -···-··· RNers/Slreams C: ~ i eomty Boundary ~ Cdical Habitat

0 0.5 2

0-----====:::::i••------•Miles Q5 2 ----===------Kiomelers locational Index

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(56) Unit 52: AZ–40, Pena Blanca Canyon; Santa Cruz County, Arizona. Map of Unit 52 follows:

Yellow Billed Cuckoo Critical Habitat Unit 52: AZ-40 Pena Banca Lake Santa Cruz County, Arimna ..... ~. ... / '···,... _ ,./ ...... - ··.1 j / ! _/...,. / /\\ /;, _,,, .. __ ,

I i ../ ,.,, ( ) ./ j r-...... _.,,..--..._,_ /·-·r...., ~·I ...... f ·-...... r:-:' ~ -• ,,,.·· ,.,/ :,,, .• i""'"' i ,.I ( ____,,.- (""•• / 1"··1'"'-" ) _/ .... ,,.,,, ____ r,.• J r·' ( r--~ i

-- Roa!IHighway _,, _____ fwers/Slreams

D National Boundaiy l:2ZJ Cmcal Habitlt

0 0.5 2 0----=====------Miles 0.5 1 2 ---==----Kiometers Localional Index

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(57) Unit 53: AZ–41, Box Canyon; Pima County, Arizona. Map of Unit 53 follows:

Yellow Biled Cuckoo Critical Habitat Unit 53: AZ-41 Box canyon Pima County, Arizona \ ···-···~\ .. l. ·...... , .. ·..,_ \ .. ,. \ ... '···-···-... s· \. } ·-...... ·,. ; ··,. ·., \ AMA CO ) ·--, ...... __ ...... \....__··, ·, ...... ···-...... ··--...-...... '· ··, '· ...... \ ·,. \ ... __ ·· ...... ··--\ \

r \ ____ _)

UNIT53 ...... 1 ..., ••

·---··-··•J"··-··t .. ,., ... , ... ,. __ .. ,...... , ...... ---..... ·· ....., ··, ... , ... ,··--... __ _,.. ... -'·::-;:;,-.., ___ ~_\ .- ,,. --.. -- ~-::::,--:7 "··\ .. __ _ ·...... , _.,.,. .. -··· '-i , .. '\, ,i· ~-- .,___ ··, ...... , ...... ·,·•. \

-- Highway -···-··· Rill!l'sJStreams E2ZJ Cmcal Habitat

otll el' Crllicaf Habiral Unils

0 1 2 4 Miles 0 2 4 l

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(58) Unit 54: AZ–42, Rock Corral Canyon; Santa Cruz County, Arizona. Map of Unit 54 follows:

Yellow Biled Cuckoo Critical Habitat Unit 54: AZ-42 Rock Corral Canyon Santa Cruz County, Arizona _,.. .r ... ;f•·-..,,_..,,. ... _.,,.. .. ,/·-·._,,..··-···, ... __ ' ./ .r·'~.. .,.,. \ \ -.. ... ,. / _,,,J - ,·· <. ··, .. ,""::. / f ···---··:._,.., .. •._j·/·...... /

SANTA CRUZ CO

·, ../•'"""•··,.,., __ \ \.

) f ! ! i f"," \ ). j ( r··-'/ r'

-- Roado'Highway - .. ·-··· mters/Slreams

~ Qmcal Habitat

0 0.5 2

0 0.5 1 2 --i::::::==------======------■ Ktometers ■ Miles Localiooal Index

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(59) Unit 55: AZ–43, Lyle Canyon; Santa Cruz and Cochise Counties, Arizona. Map of Unit 55 follows:

Yellow Biled cuckoo Critical Habitat Unit 55: AZ-43 Lyle Canyon Santa Cruz and Cochise Counties, Arimna ·.. _ I I I / \.: \., / ,) ! ( r \ ,...., .. /··· t~ .. i j _,.,.·· I \ ,..._ j l ~ L... , .. ·-. ·.\ / _)--...... _ / \ I ( ) .,...... ,/ \ '\ / l /../ // ./ i / r··/ __/_.. j / .,,,. '\-. COCHISE C_?,, .. ·{ .--·· ) / ! ,.,r···.,..,,· ...... ,...... __ .• /I / / ; ( I ) ,·· i < / '· ·,.. i \.__ 7,., ... /

__,, ... _, ···-:·-' r·~--- ··--.. .. \ ...... I ·--...., \ ·, .. _.,,...... ·, \,_,,.. ,..,, ...... ---··

,-.. ./ \._ ..I \ ./ ··, .,,,,.,.,. ... / /' ( I F !

--1-!ighway -···-··· Rif~rs

[_~-j Coimy Boundary

E222J Crllical Hal:iillat

Olfler Crlical Habilat Units

0 0.5 2 Miles 0 0.5 2 - Kilometers

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(60) Unit 56: AZ–44, Parker Canyon Lake; Santa Cruz and Cochise Counties, Arizona. Map of Unit 56 follows:

Yellow Billed CUckoo Critical Habitat Unit 56: AZ-44 Parker Canyon Lake Cochise and Santa Cruz Counties, Arizona

) ,. ,./ _. ... - r ,r' i / i ,1· ...... 1·' ( <." / ( / ;

i',

__ ,....,,, ..-,·

_.. / ~-' i~-'_,.~' (,_/ ! ,. .) /~· ,,.. ..I

-- Road/Highway ---·-··· RilerslSlream

~--- __ J' COU!ly Boundary 12221 Cdkal Habitat Olher Crtical Habitat Units

0 2 4 Miles !..ocalion.al Index 0 1 2 4 ••c:==:..••-i'Jlomelers

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(61) Unit 57: AZ–45, Barrel Canyon; Pima County, Arizona. Map of Unit 57 follows:

Yellow Billed Cuckoo Critical Habitat Unit 57: AZ-45 Barrel Canyon Pima County, Arimna

~­ i... \ l ·"i,_~ i \ "j /

_,,.· /

____ ..)/ ,.., /

/ / \ . -~-·· "'···-----... ;" /' r.) __ ,./ . I ...... ,, .. ,,, / { PIMA CO i ) .. ·~

--Highway -···-··· RNers/Slreams ~ Criieal Habitat other Cri.ical Habitat Units

0 0.5 2 0----=====------Miles 0.5 1 2 --=:::::11---■ Kiometers l..ocalional Index

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(62) Unit 58: AZ–46, Gardner Canyon; Pima and Santa Cruz Counties, Arizona. Map of Unit 58 follows:

Yellow Billed Cuckoo Critical Habitat Unit 58: AZ-46 Gardner Canyon Pima and Santa Cruz Counties, Arizooa

,.·· 'l.t

\

\ ··.°'!, \,_ ·, ......

-- 1-!ignway ---·-··· ffilerslSlreams

: = = ~: Col.my Bounda!y C22J Cltical Habitat other Criical Habilaif I.mils

0 1.5 3 6 Miles 0 1.5 3 6 localionail Index Kilometers

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(63) Unit 59: AZ–47, Brown Canyon; Pima County, Arizona. Map of Unit 59 follows:

Yellow Billed Cuckoo Critical Habitat Unit 59: AZ-47 Brown Canyon Pima County, Arimna

/"••--···

f / i (_

_,,.· _,,.... ______,i·

_...... ·...-:._....,__,. ___ _ ...,,..:

_., ...... ,---··----

--Highway -···-··· RilerslSlreams ~ Crtical Habilat

0 2 4 Miles 0 1 2 4 KilometefS localiooal Index

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(64) Unit 60: AZ–48, Sycamore Canyon; Santa Cruz County, Arizona. Map of Unit 60 follows:

Yellow EliDed Cuckoo Critical Habitat Unit 60: AZ-48 Sycamore canyon Patagonia Mountains Santa cruz County, Arizona ...... ---·-···­

···-·~..,,,.•. -···...,.···-...... J·'

./,.,,, -- ..... ··---·-·· \ __,. ... J'•-t.--···-...... ,_,../···..... ,-·

,•....!..)--...... _. ..., .•.. _. .. :~ •.•✓· SANTA CRUZ CO ,.--···- -•.J I / ... .,,,- /

( .. _.. .. ,,.-···

·-.. ·-.. -- ···, .. ______. ..,______

___ ...,, .. -••·-.... ,.,\•.. v· .. .J"'',,,, ,-•..f\. ... _,. ... 1· / / ) / I ,,...... , / ./ , ___ j ,· ___ .,,.,. o--- ,, .. .,,

-···-··· RYers/Slreams --Road

~ Cdical Hallilaf Other Crlical Habitat Units

0 0.5 2 Miles 0 0.5 1 2 Kilometers

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(65) Unit 61: AZ–49, Washington Gulch; Santa Cruz County, Arizona. Map of Unit 61 follows:

Yellow EliBed Cuckoo Critical Habitat Unit 61: AZ-49 Washington Gulch Santa cruz County, Arimna

__ .,,, ... / _,,,, ... ..,, ... ,.,., ... - ·,_

,...,,.·r '\ -·-...... -•·-,.r., ;-...... _: '--··\. ..""'· . ../ ...... ,...---·---..----•.. ,.. ___ .,.... ✓----..... •.,, ___ ...... "';-_'- __ SANTA CRUZ CO -, .. ,._ \._ --~·---...... , __ ---, .. . -...... \.,, ... ·-···..... -···, ... \ __ '·., ·-...... -...... ,.-·. ·· ...... ·,.. '·-- ..... ;- ...... __ ·,= ·- . ·1 ...... ""'= ',. .. \ .. ..._ __ ) "\ \~ ·-...... , .. /'"•---...... _ c____ _ \ ... -.. , .. , \. '-··-- .. ··, ... ·.. , \;:-···,. ' .._"".: __,, .. r··· -...... , ___ --~-\

'-···""'···,.. i.,...... _

..._,. .• ---•·-✓---...... , ____ .. ______, ...... ·,. _..,., , ~~---, i. -...... , __ l \ i r ··- ... .-·--.-•_;,___ , __ "--...... __ ·, __ f, .. / \ ... , -..... \_ 1. ·'-...... ,__ ..:. .._ \ \ ARIZONA \ ...... _ ,. ___ .. ,,..._.,...,, .. ..._ __ _ '-· \ MEXICO 0

---·-··· Rilers/Slreams D National Boundary [Z;a Clik:al Hallffat Olhef Criical Habitat Ums

0 2 4 Mites 0 2 4 Kilometers

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(66) Unit 62: AZ–50, Paymaster County, Arizona. Map of Unit 62 Spring and Mowry Wash; Santa Cruz follows:

Yellow Biled Cuckoo Critical Habitat Unit 62: AZ-50 Paymaster Springs and Mowry Wash Santa cruz County, Arizona

/ r' .... .,,, ...

...... ,,,, .. ,.-·•·-···-...... ,.t" .. -.,,,. .

...... J

...... '-,__ \ / __ ,.., '··,. ( ·--...... __ _ :...___ \, ·'\.. ·--, {....__ '-. ··1 \ \

\ "'-···, .•. \. \ ·, ...

-···-··· Rilers/Slreams --Road

f22] Crlical Hallilat: other Criical Habitat Units

0 0.5 2

0---===------Miles 0.5 1 2 --===---•l

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(67) Unit 63: CA–1, Sacramento River, Counties, California. Map of Unit 63 Colusa, Glenn, Butte, and Tehama follows:

Yellow BiHed Cuckoo Critical Habitat Unit 63: CA-1 Sacramento River Colusa, Glenn, Butte, and Tehama Counties, California

----- Riven/Streams --Road/Highway ~- _- ~ .! Collflty Boundary ~ Qi!lical Habitat

0 5 10 2) l..ocallonal Index 0--i::::=-----ll.llfes 5 10 2l ■-■-=---•l

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(68) Unit 64: CA–2, South Fork Kern River Valley; Kern County, California. Map of Unit 64 follows:

Yellow Biled Cuckoo Critical Habitat Unit 64: CA2 South Fork Kem River Valley Kem County, California

! ...... l· / I

=...... ;\. ,,.·

-···-··-...... ··-...... __ _ ...... '\ \ ·,~:~----··•-... ~ ··, ··, .... \...... ______.,.,,. \. ·, ...... \ ··--...... ,,. ... ,..._ \,\ -· --···-· , ---...:.:...... KERN CO

i f ./\ \

-···-··· Rivers.ISi.Teams -- RoadfHighway IZ:zJ Critical Habitat

0 2 4 Miles 0 2 4 Kilometers Localiollall Index

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(69) Unit 65: ID–1, Snake River 1; Bannock and Bingham Counties, Idaho. Map of Unit 65 follows:

Yellow BiDed Cuckoo Critical Habitat Unit 65: ID-1 Snake River 1 Bingham County, Idaho

BINGHAM CO

,,. ·'! \ /',,.... ·_·.r··',,I . / ,{ ,:..,._ ../

l~\ ------{ ,,. j / '"' '~- ... J ·,

":;_'j/ '_;•r ,;,.:"\..,l---),.:r-..-"!;- _ ... ,__'-..,,:..------"?" ~ ,.1;·--·- ···1 "~,rY;r~J ·;;\s~.:~~;;i_l ______.,t:.-~/ ~--~::~-\ _--~,_'i.1 / r'i" ... f'v.:t··•n. _____ \ J \ :·__. ... /···---:

BANNOCK CO

-···-··· Rilers/Slreams --Roadl'Hignway ~ _- ~ ,! Comly Boundary ~ Crlical Habitat

ll 2 4 8 Miles 0 2 4 8 Kiome!ers Localional Index

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(70) Unit 66: ID–2, Snake River 2; Bonneville, Madison, and Jefferson Counties, Idaho. Map of Unit 66 follows:

Yellow BiHed Cuckoo Critical Habitat Unit 66: 10-2 Snake River2 Bonneville, Madison, and Jefferson Counties, Idaho

I 'I I I I I JEFFERSON CO: I I 1-----""""\:33\---i-----';_;;.--T:::.n

MADtSONCO

BONNEVILLE CO 0

-···-··· Riters/Slreams --RoadfHigllway ~:: .! County Boundary ~ ctiical Habiat other Crtical Habiat Ullils

0 25 5 10 l.ocaliollal Index 0---===-----Mites 25 5 10 --=:::::i--•Kiometers

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(71) Unit 67: ID–3, Henry’s Fork and Teton Rivers; Madison and Fremont Counties, Idaho. Map of Unit 67 follows:

Yellow Billed Cuckoo Critical Habitat Unit 67: ID-3 Henry's Fork, Teton River Madison and Freemont Counties, Idaho

-···-··· Rilers/Slreams --Roadll-ligflway ~ _- ~ _! County Boundary ~ Cdical Hallitat

0 2 4

0•--===-----Miles 1 2 4 l.oc aliooal Index ■--==---Kio meters

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(72) Unit 68: CO–1, Colorado River; Mesa County, Colorado. Map of Unit 68 follows:

Yellow Billed Cuckoo Critical Habitat Unit 68: C0-1 Colorado River Mesa County, Colorado

MESA CO

-···-··· RNeralSlre-ams

--Road/Hfgfiway

fZ23 Cdical Habitat

0 25 5 10

0 25 5 10 --=:::::i---c:::=====------____ Kiomelers ■ Miles Localronal Index

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(73) Unit 69: CO–2, North Fork Gunnison River; Delta County, Colorado. Map of Unit 69 follows:

Yellow Biled Cuckoo Critical Habitat Unit 69: CO-2 North Fork Gunnison River Delta County, Colorado

rf'•·h}·\. ··-···~\·,,. __ ~ .•. , .. ·,. ·-...... \ __ _

·,... ,,."... J

/

.,I

i j _,.. } _.., .. --· ... - ... ----. ... '1J'1.,,.·\ -~ ...... ·~

...... _ .. •-

-···-··· Rilets/Slreams --Road/Highway ~ Clilical Habilal

0 2 4 Miles 0 1 2 4 - Klornelers l..ocaliooal Index

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(74) Unit 70: UT–1, Green River 1; Uintah and Duchesne Counties, Utah. Map of Unit 70 follows:

Yellow BiHed Cuckoo Critical Habitat Unit 70: UT-1 Green River 1 Uintah and Duchesne Counties, Utah

\ \

0

-···-··· RNerrsJSlreams

--Road/Highway ~: ~ .! Colffly Boundary EZ::2J Cmcal Habitll'

0 3 6 12

0--c::=:===---- 3 6 12 ■ Miles -■=::::11--■ Klometers

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(75) Unit 71: UT–2, Green River 2; Emery and Grand Counties, Utah. Map of Unit 71 follows:

Yellow BiUed Cuckoo Critical Habitat Unit 71: UT-2 Green River2 Grand and Emery Counties, Utah

-- Road'Highway -···-··· Rillen.lSlreams

~:: .! Coimy Boonda!y E22] Clllical Habitat

0 0.5 2

0--c::=:.--- 0.5 2 ■ flliles --c::=---Kilometers localiiooal Index

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(76) Unit 72: TX–1, Terlingua Creek and Rio Grande; Brewster County, Texas. Map of Unit 72 follows:

Yellow Biled Cuckoo Critical Habitat Unit 72: lX-1 Tertingua Creek and Rio Grande BrewslerCounty, Texas

MEXICO 0

-···-··· Rivers/streams

-- Roadll-lighway D sta!e/Couooy Boundary C2Z) Critical Habitit

0 25 5 10 Miles 0 25 5 10 - Ktomelers l..ocalional Index

* * * * * Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director U.S. Fish and Wildlife Service. [FR Doc. 2021–07402 Filed 4–20–21; 8:45 am] BILLING CODE 4333–15–C

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