[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37419-37440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17404]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF36
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Cactus Ferruginous Pygmy-owl (Glaucidium
brasilianum cactorum)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for the cactus ferruginous pygmy-owl (Glaucidium
brasilianum cactorum). A total of approximately 296,240 hectares
(731,712 acres) of riverine riparian and upland habitat are designated.
Critical habitat is located in Pima, Cochise, Pinal, and Maricopa
counties, Arizona. Section 7 of the Act prohibits destruction or
adverse modification of critical habitat by any activity funded,
authorized, or carried out by any Federal agency. As required by
section 4 of the Act, the Service considered economic and other
relevant impacts
[[Page 37420]]
prior to making a final decision on the size and configuration of
critical habitat.
EFFECTIVE DATE: August 11, 1999.
ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Arizona Ecological Services
Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona
85021-4951. The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Tom Gatz, Endangered Species
Coordinator, at the above address (telephone 602/640-2720 ext. 240;
facsimile 602/640-2730).
SUPPLEMENTARY INFORMATION:
Background
The cactus ferruginous pygmy-owl (referred to as ``pygmy-owl'' in
this final rule) is in the Order Strigiformes and the Family Strigidae.
It is a small bird, approximately 17 centimeters (cm) (6\3/4\ inches
(in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and females
average 75 g (2.6 oz). The pygmy-owl is reddish brown overall, with a
cream-colored belly streaked with reddish brown. Some individuals are
grayish brown, rather than reddish brown. The crown is lightly
streaked, and paired black-and-white spots on the nape suggest eyes.
This species lacks ear tufts, and the eyes are yellow. The tail is
relatively long for an owl and is colored reddish brown with darker
brown bars. The pygmy-owl is diurnal (active during daylight), and its
call, heard primarily near dawn and dusk, is a monotonous series of
short notes.
The cactus ferruginous pygmy-owl is one of four subspecies of the
ferruginous pygmy-owl. It occurs from lowland central Arizona south
through western Mexico to the States of Colima and Michoacan, and from
southern Texas south through the Mexican States of Tamaulipas and Nuevo
Leon. Only the Arizona population of Glaucidium brasilianum cactorum is
listed as an endangered species.
The pygmy-owl in Arizona occurs in a variety of scrub and woodland
communities, including riverbottom woodlands, woody thickets
(``bosques''), Sonoran desertscrub, and semidesert grasslands. Unifying
habitat characteristics among these communities are fairly dense woody
thickets or woodlands, with trees and/or cacti large enough to provide
nesting cavities. The pygmy-owl occurs at low elevations, generally
below 1,200 meters (m) (4,000 feet (ft)) (Swarth 1914, Karalus and
Eckert 1974, Monson and Phillips 1981, Johnsgard 1988, Enriquez-Rocha
et al. 1993).
The pygmy-owl's primary habitats historically were in riparian
cottonwood (Populus fremontii) forests, but the subspecies currently
occurs primarily in Sonoran desertscrub associations and mesquite
bosques consisting of palo verde (Cercidium spp.), bursage (Ambrosia
spp.), ironwood (Olneya tesota), mesquite (Prosopis velutina, and P.
glandulosa), acacia (Acacia spp.), and giant cacti such as saguaro
(Carnegiea giganteus) and organ pipe (Stenocereus thurberi) (Gilman
1909, Bent 1938, van Rossem 1945, Phillips et al. 1964, Monson and
Phillips 1981, Johnson-Duncan et al. 1988, Millsap and Johnson 1988).
Primary prey include various reptiles, insects, birds, and small
mammals (Proudfoot 1996).
Pygmy-owls are considered non-migratory throughout their range by
most authors, and have been reported during the winter months in
several locations, including Organ Pipe Cactus National Monument (R.
Johnson, unpubl. data 1976, 1980, Tibbitts, pers. comm. 1997). Major
Bendire collected pygmy-owls along Rillito Creek near Camp Lowell at
present-day Tucson on January 24, 1872. The University of Arizona Bird
Collection contains a female pygmy-owl collected on January 8, 1953
(University of Arizona 1995). Similarly, records exist from Sabino
Canyon documenting pygmy-owls on December 3, 1941, and December 25,
1950 (U.S. Forest Service, unpubl. data). These winter records
demonstrate that pygmy-owls are found within Arizona throughout the
year, and do not appear to migrate southward to warmer climates during
the winter months.
Previous Federal Action
We included Glaucidium brasilianum cactorum in our Animal Notice of
Review as a category 2 candidate species throughout its range on
January 6, 1989 (54 FR 554). Category 2 candidates were defined as
those taxa for which we had data indicating that listing was possibly
appropriate but for which we lacked substantial information on
vulnerability and threats to support proposed listing rules. After
soliciting and reviewing additional information, we elevated G. b.
cactorum to category 1 status throughout its range in our November 21,
1991, Notice of Review (56 FR 58804). Category 1 candidates were
defined as those taxa for which we had sufficient information on
biological vulnerability and threats to support proposed listing rules
but for which issuance of proposals to list were precluded by other
higher-priority listing activities. Beginning with our combined plant
and animal notice of review published in the Federal Register on
February 28, 1996 (61 FR 7596), we discontinued the designation of
multiple categories of candidates and only taxa meeting the definition
of former category 1 candidates are now recognized as candidates for
listing purposes.
On May 26, 1992, a coalition of conservation organizations (Galvin
et al. 1992) petitioned us to list the pygmy-owl as an endangered
species under the Act. The petitioners also requested designation of
critical habitat. In accordance with section 4(b)(3)(A) of the Act, on
March 9, 1993, we published a finding that the petition presented
substantial scientific or commercial information indicating that
listing of the pygmy-owl may be warranted and commenced a status review
of the subspecies (58 FR 13045). As a result of information collected
and evaluated during the status review, including information collected
during a public comment period, we published a proposed rule to list
the pygmy-owl as endangered in Arizona and threatened in Texas on
December 12, 1994 (59 FR 63975). We proposed designation of critical
habitat in Arizona. After a review of all comments received in response
to the proposed rule, we published a final rule on March 10, 1997 (62
FR 10730), listing the pygmy-owl as endangered in Arizona. We
determined that listing in Texas was not warranted. We also determined
that critical habitat designation for the Arizona population was not
prudent.
On October 31, 1997, the Southwest Center for Biological Diversity
filed a lawsuit in Federal District Court in Arizona against the
Secretary of the Department of the Interior (Secretary) for failure to
designate critical habitat for the cactus ferruginous pygmy-owl and the
plant, Lilaeopsis schaffneriana var. recurva, (Huachuca water umbel)
(Southwest Center for Biological Diversity v. Babbitt, CIV 97-704 TUC
ACM). On October 7, 1998, Alfredo C. Marquez, Senior U.S. District
Judge, issued an order stating: ``There being no evidence that
designation of critical habitat for the pygmy-owl and water umbel is
not prudent, the Secretary shall, without further delay, decide whether
or not to designate critical habitat for the pygmy-owl and water umbel
based on the best scientific and commercial information available.''
On November 25, 1998, in response to a motion by the Plaintiffs
requesting clarification of the October 7, 1998, order, Judge Marquez
further ordered ``that within 30 days of the date of this Order, the
Secretary shall issue the
[[Page 37421]]
proposed rules for designating critical habitat for the pygmy-owl and
water umbel * * * and that within 6 months of issuing the proposed
rules, the Secretary shall issue final decisions regarding the
designation of critical habitat for the pygmy-owl and water umbel.''
On December 30, 1998, we proposed 295,775 ha (730,565 ac) as
critical habitat in Arizona for the pygmy-owl (63 FR 71820). On April
15, 1999, we released the draft economic analysis on proposed critical
habitat and reopened the public comment period for 30 days (64 FR
18596).
The processing of the December 30, 1998, proposed rule and this
final rule does not conform with our Listing Priority Guidance for
Fiscal Year 1998 and 1999 published on May 8, 1998 (63 FR 25502). The
guidance clarifies the order in which we will process rulemakings
giving highest priority (Tier 1) to processing emergency rules to add
species to the Lists of Endangered and Threatened Wildlife and Plants;
second priority (Tier 2) to processing final determinations on
proposals to add species to the lists, processing new listing
proposals, processing administrative findings on petitions (to add
species to the lists, delist species, or reclassify listed species),
and processing a limited number of proposed and final rules to delist
or reclassify species; and third priority (Tier 3) to processing
proposed and final rules designating critical habitat. Our Southwest
Region is currently working on Tier 2 actions; however, we are
undertaking this Tier 3 action in order to comply with the above-
mentioned court order.
Habitat Characteristics
According to early surveys referenced in the literature, the pygmy-
owl, prior to the mid-1900s, was ``not uncommon,'' ``of common
occurrence,'' and a ``fairly numerous'' resident of lowland central and
southern Arizona in cottonwood forests, mesquite-cottonwood woodlands,
and mesquite bosques along the Gila, Salt, Verde, San Pedro, and Santa
Cruz rivers and various tributaries (Breninger 1898 in Bent 1938,
Gilman 1909, Swarth 1914). Bendire (1888) noted that he had taken
``several'' along Rillito Creek near Fort Lowell, in the vicinity of
present-day Tucson, Arizona. Records indicate that pygmy-owls were
initially more common in xeroriparian habitats (very dense thickets
bordering dry desert washes) than in more open, desert uplands (Monson
and Phillips 1981, Johnson and Haight 1985, Johnson-Duncan et al. 1988,
Millsap and Johnson 1988, Davis and Russell 1990). The pygmy-owl was
also noted to occur at isolated desert oases supporting small pockets
of riparian and xeroriparian vegetation (Howell 1916, Phillips et al.
1964).
The historical use of Sonoran desertscrub habitats by pygmy-owls is
not as clear. A disproportionately low number of historical records
from desertscrub habitats may be due to the focus of early collection
efforts along rivers where humans tended to concentrate, while the
upland areas received less survey. Historical records of pygmy-owls do
exist for Sonoran desertscrub in areas such as the Santa Catalina
foothills and in ``groves of giant cactus'' near New River, north of
present-day Phoenix. Kimball (1921) reported one pygmy-owl in a
mesquite tree in the foothills of the Santa Catalina Mountains. Fisher
(1893) took 2 pygmy-owl specimens near New River, and observed
``several others'' in mesquite and large cacti.
The northernmost historical record for the pygmy-owl is from New
River, Arizona, approximately 56 kilometers (35 miles) north of
Phoenix, where Fisher (1893) reported the pygmy-owl to be ``quite
common'' in thickets of intermixed mesquite and saguaro cactus. Four
eggs were collected in Phoenix, Maricopa County by G.F. Breninger on
May 18, 1898, and R.D. Lusk collected five eggs at Cave Creek on April
12, 1895. Pygmy-owls were also detected in central Arizona at the Blue
Point Cottonwoods area, at the confluence of the Salt and Verde rivers,
in 1897, 1949, 1951, 1964, and 1971 (AGFD unpubl. data, Phillips et al.
1964, Millsap and Johnson 1988). Additionally, pygmy-owls were detected
at Dudleyville on the San Pedro River as recently as 1985 and 1986
(AGFD unpubl. data, Hunter 1988).
The easternmost record for the pygmy-owl is from 1985 at the
confluence of Bonita Creek and the Gila River (Hunter 1988). Other
records from this eastern portion of the pygmy-owl's range include a
1876 record from Camp Goodwin (current day Geronimo) on the Gila River
(Aiken 1937), and a 1978 record from Gillard Hot Springs, also on the
Gila River (Hunter 1988). Pygmy-owls have been found as far west as the
Cabeza Prieta Tanks in 1955 (Monson 1998).
Over the past several decades, pygmy-owls have been primarily found
in Sonoran desertscrub communities in southern and southwestern Arizona
consisting of palo verde, ironwood, mesquite, acacia, bursage, and
columnar cacti (Phillips et al. 1964, Davis and Russell 1984 and 1990,
Monson and Phillips 1981, Johnson and Haight 1985, Johnsgard 1988).
Recently pygmy-owls have also been found in wooded drainages within
semidesert grasslands in southern Arizona (unpubl. data). These sites
are closely associated with xeroriparian habitats.
Historically, pygmy-owls were associated with riparian woodlands in
central and southern Arizona. Plants present in these riparian
communities include cottonwood, willow (Salix spp.), ash (Fraxinus
velutina), and hackberry (Celtis spp.). These trees are suitable for
cavity nesting, while the density of mid- and lower-story vegetation
likely provides necessary protection from predators and an abundance of
prey. Mesquite bosque communities are dominated by mesquite trees, and
are described as mesquite forests due to the density and large size of
the trees. This habitat type provides for all of the necessary habitat
components of the pygmy-owl.
The Arizona upland subdivision of the Sonoran Desert provides an
over-story of mature saguaros which are suitable for cavity nesting, as
well as large mesquites and other trees which may be used for nesting,
as well as perch and cover sites. Saguaro cavities are also used for
roosting, perching, and caching food (Scott Richardson, Arizona Game
and Fish Department, pers. comm. 1998). The mid- and lower-stories are
comprised of a variety of mesquite, palo verde, ironwood, acacia,
graythorn (Ziayphus obtusifola), bursage, cholla (Opuntia spp.),
prickly pear (Opuntia spp.), and annual and perennial grass species. As
in riparian habitat, the larger trees provide perches for foraging and
protection from predators. Adequate vegetation in mid- and lower-
stories appears to be important, and likely provides protection from
predators and a higher density of prey items including lizards, small
birds and mammals, and insects.
In central and southern Arizona, the pygmy-owl's primary habitats
are riparian deciduous forests and woodlands, mesquite bosques, Sonoran
desertscrub, and semidesert and Sonoran savanna grasslands with
drainages lined with mesquite; although most recent observations have
occurred primarily in Sonoran desertscrub associations of palo verde,
bursage, ironwood, mesquite, acacia, and giant cacti such as saguaro
and organ pipe (Gilman 1909, Bent 1938, van Rossem 1945, Phillips et
al. 1964, Monson and Phillips 1981, Johnson-Duncan et al. 1988, Millsap
and Johnson 1988, Aaron Flesch pers. comm. 1999). Farther south in
northwestern Mexico, pygmy-owls occur in Sonoran desertscrub, Sinaloan
thornscrub, and Sinaloan deciduous forest as well as riverbottom
woodlands,
[[Page 37422]]
cactus forests, and thornforest (Enriquez-Rocha et al. 1993).
Pygmy-owls at Organ Pipe Cactus National Monument have been
detected primarily in relatively dense, lush Arizona uplands
desertscrub associations on bajadas. Visually dominant plants at the
pygmy-owl sites include saguaros, organ pipe cactus, ironwood,
triangle-leaf bursage, foothill paloverde (C. Microphyllum), mesquite,
whitethorn and catclaw acacia (Acacia constricta and A. greggii),
numerous cholla, prickly pear cacti, ocotillo (Fouquieria splendens),
various Lycium spp., and creosotebush (Larrea tridentata) (Smith 1996).
In addition to the dense bajada desertscrub habitat described above,
pygmy-owls have been documented in several large xeroriparian habitats
in lower bajada or valley floor areas that have dense saguaro stands;
however, some sites have much less dense adjacent upland areas
dominated chiefly by creosotebush. Xeroriparian habitat at these sites
consist of mesquites, foothill and blue paloverde (Cercidium
microphyllum and C. flordum), desert willow (chilopsis lineraris),
catclaw acacia, ironwood, and soapberry (Sapindus saponaria) (Smith
1996).
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management consideration
or protection and; (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon determination that
such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered species or a threatened species to the
point at which listing under the Act is no longer necessary.
Section 4(b)(2) of the Act requires that we base critical habitat
proposals upon the best scientific and commercial data available, after
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation when the benefits of
exclusion outweigh the benefits of including the areas within critical
habitat, provided the exclusion will not result in the extinction of
the species (section 4(b)(2) of the Act).
Designation of critical habitat can help focus conservation
activities for a listed species by identifying areas that contain the
physical and biological features that are essential for the
conservation of that species. Designation of critical habitat alerts
the public as well as land-managing agencies to the importance of these
areas.
Critical habitat also identifies areas that may require special
management considerations or protection, and may provide protection to
areas where significant threats to the species have been identified.
Critical habitat receives protection from the prohibition against
destruction or adverse modification through required consultation under
section 7 of the Act with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the adverse modification
or destruction of proposed critical habitat. Aside from the protection
that may be provided under section 7, the Act does not provide other
forms of protection to lands designated as critical habitat.
Section 7(a)(2) of the Act requires Federal agencies to consult
with us to ensure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. ``Jeopardize the continued
existence'' (of a species) is defined as an appreciable reduction in
the likelihood of survival and recovery of a listed species.
``Destruction or adverse modification'' (of critical habitat) is
defined as a direct or indirect alteration that appreciably diminishes
the value of critical habitat for the survival and recovery of the
listed species for which critical habitat was designated. Thus, the
definitions of ``jeopardy'' to the species and ``adverse modification''
of critical habitat are nearly identical (50 CFR Sec. 402.02).
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), or directly affect
areas not designated as critical habitat. Specific management
recommendations for critical habitat are most appropriately addressed
in recovery plans and management plans, and through section 7
consultations.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species and that may require special
management considerations or protection. Areas that do not currently
contain the habitat components necessary for the primary biological
needs of a species but are likely to develop them in the future may be
essential to the conservation of the species and may be designated as
critical habitat.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features that are
essential to the conservation of the species and that may require
special management considerations or protection. These include, but are
not limited to, the following:
Space for individual and population growth, and for normal
behavior;
Food, water, air, light, minerals or other nutritional or
physiological requirements;
Cover or shelter;
Sites for breeding, reproduction, or rearing of offspring,
germination, or seed dispersal; and
Habitats that are protected from disturbance or are representative
of the historic geographical and ecological distributions of a species.
The primary constituent elements for the pygmy-owl are those
habitat components that are essential for the primary biological needs
of foraging, nesting, rearing of young, roosting, sheltering, and
dispersal, or the capacity to develop those habitat components. The
primary constituent elements are found in areas that support or have
the potential to support Sonoran riparian deciduous woodlands, Sonoran
riparian scrubland, xeroriparian forests, tree-lined drainages in
semidesert and Sonoran savanna grasslands, and the Arizona upland
subdivision of Sonoran desertscrub (Brown 1994). Within these biotic
communities, specific plant associations that are essential to the
primary biological needs of the pygmy-owl include, but are not limited
to, the following--cottonwood, willow, ash, mesquite, palo verde,
ironwood, hackberry, saguaro cactus, and/or organ pipe cactus.
Specifically, larger diameter trees and cacti provide not only nesting
substrate, but also roosting, perching, foraging, and dispersal
habitat, while smaller trees and shrubs provide for the same functions
except nesting.
In river floodplains, the presence of surface or subsurface water
is important in maintaining pygmy-owl habitat. Riverine riparian
woodlands and thickets are dependent on availability of groundwater at
or near the surface
[[Page 37423]]
(Brown 1994). Surface or subsurface moisture may also be important in
maintaining various prey species.
Methods
In developing this final rule, we formed an interconnected system
of suitable and potential habitat areas extending from the Mexican
border through the northernmost recent pygmy-owl occurrence east of
Phoenix. Areas designated as critical habitat meet the definition of
critical habitat under section 3 of the Act in that they are within the
geographical areas occupied by the species, are essential to the
conservation of the species, and are in need of special management
considerations or protection.
In an effort to map areas essential to the conservation of the
species, we used data on known pygmy-owl locations to initially
identify important areas. We then connected these areas based on the
topographic and vegetative features believed most likely to support
resident pygmy-owls and/or facilitate movement of birds between known
habitat areas. Facilitating movement of birds between habitat areas is
important for dispersal and gene flow (Beier and Noss 1998). In
selecting areas, we avoided private lands to the extent possible if
State and Federal lands were present that could meet the conservation
needs of the species. However, we are designating critical habitat in
some largely privately owned areas, such as the area northwest of
Tucson which supports the greatest known concentration of pygmy-owls in
Arizona.
In selecting areas of critical habitat, we made an effort to avoid
developed areas such as towns, agricultural lands, and other lands
unlikely to contribute to pygmy-owl conservation. Given the short
period of time in which we were required to complete this final rule,
we were unable to map critical habitat in sufficient detail to exclude
all such areas. However, within the delineated critical habitat
boundaries, only lands containing, or are likely to develop, those
habitat components that are essential for the primary biological needs
of the pygmy-owl are considered critical habitat. Existing features and
structures within this area, such as buildings, roads, aqueducts,
railroads, and other features, do not contain, and are not likely to
develop, those habitat components and are not considered critical
habitat.
In selecting areas as critical habitat, we attempted to exclude
areas believed to be adequately protected, or where current management
is compatible with pygmy-owls and is likely to remain so into the
future. We excluded National Park lands (Organ Pipe Cactus National
Monument and Saguaro National Park) and National Wildlife Refuges
(Cabeza Prieta and Buenos Aires National Wildlife refuges). We also
excluded non-Federal lands covered by a legally operative incidental
take permit for pygmy-owls issued under section 10(a)(1)(B) of the Act.
However, we did not exclude areas currently managed in a manner
compatible with pygmy-owls where such management may not be assured in
the future (e.g., county and State parks).
In addition, lands of the Tohono O'odham Indian Nation are not
included in this final rule. We are aware that pygmy-owls and pygmy-owl
habitat likely exist on the Nation, and we believe these lands are
important to the species' continued existence in Arizona. However, the
short amount of time given by the court to designate critical habitat
precluded us from adequately coordinating with the Nation to obtain
pygmy-owl location and habitat information. In addition, we were unable
to assess whether current or future Tribal management is likely to
maintain pygmy-owls into the future, although the probable existence of
both pygmy-owls and pygmy-owl habitat led us to believe that current
management may be compatible with the species. As explained in the
``Summary of Changes from the Proposed Rule'' section of this final
rule, Tribal grazing allotments have also been excluded.
We did not designate all pygmy-owl historical or potential habitat
as critical habitat. We only designated those areas that we believe are
essential for the conservation of the pygmy-owl and in need of special
management or protection.
In summary, the critical habitat areas described below, and
protected areas either known or suspected to contain some of the
primary constituent elements but not designated as critical habitat
(e.g., National Park land, National Wildlife Refuge lands, etc.),
constitute our best assessment of areas needed for the species'
conservation. Also, we have appointed a Cactus Ferruginous Pygmy-owl
Recovery Team that will develop a recovery plan for the species. The
experts on this team will conduct a far more thorough analysis than we
were able to conduct in the short amount of time allowed by the Court
Order. Upon the team's completion of a recovery plan, we will evaluate
the plan's recommendations and reexamine areas designated as critical
habitat.
Critical Habitat Designation
In determining areas that are essential for the survival and
recovery of the species, we used the best scientific information
obtainable in the time allowed by the court. This information included
habitat suitability and site-specific species information. To date,
limited survey effort or research has been done to identify and define
specific habitat needs of pygmy-owls in Arizona or to completely
quantify their distribution. Only preliminary habitat assessment work
has begun over small portions of the State, primarily on Bureau of Land
Management (BLM) lands.
We emphasized areas containing most of the verified pygmy-owl
occurrences, especially recently identified locations. In order to
maintain genetic and demographic interchange that will help maintain
the viability of a regional metapopulation, we included corridor areas
that allow movement between areas supporting pygmy-owls. These
corridors or connecting areas, which have not been well surveyed
connect recent sites and areas where suitable habitat remain. These
corridors or connecting areas, while supporting some habitat suitable
for nesting, were primarily included to facilitate dispersal and may
contain more foraging, perching, and roosting habitat than actual
breeding habitat. While habitat of similar quality occurs outside of
these corridors, we anticipate that the use and importance of these
corridors will increase over time if and when habitat outside of the
corridors becomes unsuitable in the future.
Table 1 shows the approximate acreage of critical habitat
designation by county and land ownership. Critical habitat for the
pygmy-owl includes river floodplains, Sonoran desertscrub, and
semidesert grassland communities in Pima, Pinal, Maricopa, and Cochise
counties, Arizona. To provide additional information, we have grouped
areas designated into critical habitat units (see maps). A brief
description of each unit and our reasons for designating those areas as
critical habitat are presented below.
[[Page 37424]]
Table 1.--Approximate Critical Habitat Acreage by County and Land Ownership
[Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal
descriptions]
----------------------------------------------------------------------------------------------------------------
County
Ownership ---------------------------------------------------------------- Total
Pima Cochise Pinal Maricopa
----------------------------------------------------------------------------------------------------------------
FS.............................. .............. .............. 5,065 33,323 38,388
BLM............................. 21,913 .............. 69,579 .............. 91,492
STATE........................... 158,974 2,371 273,541 .............. 434,886
PRIVATE......................... 61,830 2,461 71,634 68 135,993
OTHER........................... 18,166 .............. 12,787 .............. 30,953
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TOTAL....................... 260,883 4,832 432,606 33,391 731,712
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Unit 1
This unit lies between Buenos Aires National Wildlife Refuge and
the Tohono O'odham Indian Nation, consisting of primarily State Trust
lands, with some dispersed private ownership. This area contains
semidesert and Sonoran savanna grasslands with a series of xeroriparian
washes extending from the Baboquivari Mountains to Altar and Brawley
washes. Uplands primarily consist of grasslands with dispersed mesquite
trees, and a very few isolated saguaros in some areas, mostly occurring
at the extreme north end of the unit. Dominant tree species in riparian
areas include mesquite, ash, and hackberry.
This unit is located in the Altar Valley, which recently has had
several pygmy-owls documented. Not until 1998 had systematic surveys in
this unit and adjacent areas been initiated; as a result, at least nine
new pygmy-owl sites have been found (Harris Environmental Group, Inc.
1998; AGFD unpubl. data; Aaron Flesch, pygmy-owl surveyor, pers. comm.
1999). These new sites are located in riparian and xeroriparian
habitats and wooded drainages within semidesert grassland and Sonoran
savanna grassland communities. Since the turn of the century, many
areas that were historical semidesert and Sonoran savanna grasslands in
the Altar Valley have developed into habitats similar to Sonoran
desertscrub (Brown 1994). It is unclear at this time what role this
transition has played in the distribution of pygmy-owls in the region.
Habitat in Unit 1 is suitable for nesting and dispersal habitat for
pygmy-owls; however, nesting opportunities are generally greater in the
washes because of a higher incidence of large diameter trees that may
provide cavities for nesting. This unit is important for conservation
of the species because it contains several pygmy-owl sites and it is
close to other recent or currently active sites on the nearby refuge.
It also provides opportunities for demographic and genetic interchange
between pygmy-owls in Mexico and the United States as well as expansion
of populations for recovery. Critical habitat in this area, together
with protected lands on the refuges, National Monument, and habitat on
the Nation, constitutes a large block of pygmy-owl habitat.
Unit 2
This unit connects habitat on the Tohono O'odham Indian Nation to
habitat in Saguaro National Park West and Tucson Mountain County Park.
Ownership in this area is primarily BLM, State Trust, Bureau of
Reclamation, Pima County, and some private lands. The area consists of
Sonoran desertscrub, mesquite bosques interspersed by washes, and some
retired agricultural lands. This east-west habitat corridor, together
with the ``Garcia Strip'' of the Nation, includes suitable habitat for
occupancy, movement, and genetic interchange of pygmy-owls between the
Nation and the western Tucson region.
Unit 3
This narrow unit connects suitable habitat in Unit 2 and Saguaro
National Park west to Unit 4, which has the highest known concentration
of pygmy-owls in Arizona. The land ownership in this area is mostly
private. The area consists of Sonoran desertscrub, mesquite bosques
interspersed by washes, and some retired agricultural lands. This area
includes a recent pygmy-owl site west of Interstate 10 and provides a
connection to habitat in the northwest Tucson region. Because of
existing and past land management practices and development, this area
contains the narrowest habitat linkage among other areas of critical
habitat.
Few options currently exist for movement of pygmy-owls in this
portion of their known range based on our limited knowledge of their
movement among areas at this time (Scott Richardson, pers. comm. 1998).
The pygmy-owl's flight pattern typically consists of a series of short,
direct flights, perching in trees or shrubs usually less than 100 m
(328 ft) apart (Glenn Proudfoot, pers. comm, 1999 and Scott Richardson,
pers. comm. 1999).
Unit 4
This unit is located in the northwest portion of Tucson north of
Interstate 10 and contains the highest known concentration of pygmy-
owls in Arizona. This unit contains mostly private and County lands.
The area includes known locations of pygmy-owls and adjacent habitats
and is bounded by La Cholla Boulevard to the east, Cortaro Road to the
south, Interstate 10 to the west, and the Tortolita Mountains to the
north. In the immediate Tucson area, and to the south of Unit 4, very
little suitable habitat remains due to residential, commercial, and
agricultural development. Historically, these upland and riparian areas
may have supported pygmy-owls. The area of critical habitat contains
stands of ironwood, acacia, and saguaro, mesquite bosques, and several
washes, and includes the most contiguous and highest quality pygmy-owl
habitat based on current information (Scott Richardson, pers. comm.
1998; Wilcox et al. 1999).
Units 5a and 5b
Unit 5 includes 2 habitat corridors that connect habitat in Unit 4
to riparian habitats to the north on the Gila River (5a) and to the
east on San Pedro River (5b). Land ownership is mostly BLM, State
Trust, and private. This area also includes recent pygmy-owl
occurrences in southern Pinal County, although only a limited number of
surveys have been conducted to determine if pygmy-owls are present in
much of this area. Relatively intact riparian woodland habitats still
remain along much of these portions of the Gila and San Pedro rivers.
These units contain historical pygmy-owl locations and/or areas thought
to contain suitable upland
[[Page 37425]]
habitat (Dave Krueper, BLM, pers. comm. 1998).
Limited habitat assessment has been completed within these
corridors and few historical or current pygmy-owl occurrences have been
documented. However, the BLM has conducted some habitat assessments on
their lands in Unit 5a and rated the habitat suitability for pygmy-owls
as moderate to high (Dave Krueper, pers. comm. 1998). We included these
two corridors primarily because they constitute areas for dispersal,
and also for nesting where nesting habitat is present. Upon field
review of habitats present in both of these units, we believe they
could facilitate movement through these areas, which would act as
dispersal corridors. In addition to dispersal habitat, nesting habitat
is also present in uplands with saguaros and in washes where large
diameter trees are present. The majority of the nesting habitat in this
region is in Unit 5a, although some large diameter trees are also
located in some of the washes in Unit 5b, and may contain some
potential nesting cavities. Where possible, we avoided the higher
elevation areas, which likely provide lower quality habitat.
We are only beginning to understand the importance of upland
habitat to the pygmy-owl. Although historical observations of pygmy-
owls were almost exclusively in riparian woodlands (Breninger 1898 in
Bent 1938), almost all of the recent records of pygmy-owls have been in
Sonoran desertscrub, and mesquite bosque upland areas, semidesert
grasslands, and washes. Based on the current information, we believe
these two corridors (5a and 5b) provide a high potential for supporting
resident and/or dispersing pygmy-owls through this area. Without these
habitat linkages, demographic and genetic connectivity and exchange may
not be maintained between known populations in the greater Tucson
region and riparian habitats in the Gila and San Pedro rivers.
Unit 6
This unit includes the riparian woodlands of the middle and lower
San Pedro River and a portion of the Gila River. There were four pygmy-
owls documented in the mid-1980s from lower San Pedro River woodlands.
Similar riparian woodlands and associated upland habitats with saguaro
cactus are present along the San Pedro upstream (south) to
approximately the town of Cascabel.
The San Pedro River riparian corridor connects to the Gila River to
the north. This section of the Gila River also contains riparian
woodland habitats, which we believe are suitable for pygmy-owls (Dr.
Roy Johnson, National Park Service (Retired) pers. comm. 1998). We are
designating these areas as critical habitat because of the importance,
based on the early records of naturalists during the late 1800s and
early 1900s, of riparian woodland habitats, the presence of suitable
habitat, and the linkage these areas provide to other historical
locations and suitable habitat to the north.
Unit 7
This unit links riparian habitat on the Gila River to other upland
habitats and ultimately to the remaining woodland habitat along the
Salt River where pygmy-owls were collected in the 1940s and 1950s and
where this species was recorded in the early 1970s. Land ownership in
this area is primarily BLM, State Trust, Forest Service, and some
dispersed private. Although recent surveys have not located pygmy-owls
in riparian areas in this unit, riparian woodland habitats remain along
portions of the Salt River in this area (Roy Johnson pers. comm. 1998),
and we cannot rule out pygmy-owl use of the area because pygmy-owls may
use areas only periodically and may not be detected. In delineating
critical habitat in this unit, we considered elevation, topographic
features, and existing developed areas and determined that a habitat
linkage that includes Sonoran upland desertscrub will provide
connectivity and suitable habitats between riparian woodland habitats
along the Gila and Salt rivers.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities involving
listed species are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
Sec. 402. Section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into consultation with us.
Section 7(a)(4) of the Act and regulations at 50 CFR Sec. 402.10
require Federal agencies to confer with us on any action that is likely
to result in destruction or adverse modification of proposed critical
habitat. Conferencing on proposed critical habitat for the pygmy-owl
was not requested by any Federal agency.
Activities on Federal lands that may affect the pygmy-owl or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, or a section 402 permit from the Environmental
Protection Agency, will be subject to the section 7 consultation
process. Federal actions not affecting the species, as well as actions
on non-Federal lands that are not federally funded or permitted will
not require section 7 consultation.
Section 4(b)(8) of the Act requires us to describe in any proposed
or final regulation that designates critical habitat those activities
involving a Federal action that may destroy or adversely modify such
habitat or that may be affected by such designation. Activities that
may destroy or adversely modify critical habitat include those that
alter the primary constituent elements to the extent that the value of
critical habitat for both the survival and recovery of the pygmy-owl is
appreciably diminished. We note that such activities may also
jeopardize the continued existence of the species. Such activities may
include, but are not limited to:
(1) Removing, thinning, or destroying vegetation, whether by
burning or mechanical, chemical, or other means (e.g., woodcutting,
bulldozing, overgrazing, construction, road building, mining, herbicide
application, etc.);
(2) Water diversion or impoundment, groundwater pumping, or other
activity that alters water quality or quantity to an extent that
riparian vegetation is significantly affected; and
(3) Recreational activities that appreciably degrade vegetation.
[[Page 37426]]
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, contact the Field
Supervisor, Arizona Ecological Services Field Office (see ADDRESSES
section). Requests for copies of the regulations on listed wildlife and
inquiries about prohibitions and permits may be addressed to the U.S.
Fish and Wildlife Service, Branch of Endangered Species/Permits, P.O.
Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-6920,
facsimile 505-248-6922).
Designation of critical habitat could affect Federal agency
activities including, but not limited to:
(1) Regulation of activities affecting waters of the United States
by the Army Corps of Engineers under section 404 of the Clean Water
Act;
(2) Regulation of activities affecting point source pollution
discharges into waters of the United States by the Environmental
Protection Agency under section 402 of the Clean Water Act;
(3) Regulation of water flows, damming, diversion, and
channelization by Federal agencies; and
(4) Regulation of grazing, mining, or recreation by the BLM or
Forest Service.
Summary of Comments and Recommendations
In the December 30, 1998, proposed rule, all interested parties
were requested to submit comments or information that might bear on the
designation of critical habitat for the pygmy-owl (63 FR 71820). The
first comment period closed March 1, 1999. The comment period was
reopened from April 15 to May 15, 1999, to once again solicit comments
on the proposed rule and to accept comments on the draft economic
analysis (72 FR 18596). Comments received from March 2 to April 14,
1999, were entered into the administrative record during the second
comment period.
All appropriate State and Federal agencies, county governments,
scientific organizations, and other interested parties were contacted
and invited to comment. In addition, newspaper notices inviting public
comment were published in the following newspapers in Arizona: Arizona
Republic, Tucson Citizen, Arizona Daily Star, Sierra Vista Herald,
Green Valley News and Sun, The Bulletin, The Tombstone Tumbleweed, and
Nogales International. The inclusive dates of these publications were
January 4 to 12, 1999, for the initial comment period; January 26 to
February 4, 1999, to advertise the public hearings; and April 21 to 29,
1999, for the second comment period.
We held three public hearings on the proposed rule, including at
Coolidge (February 10, 1999), Sierra Vista (February 11, 1999), and
Tucson, Arizona (February 12, 1999). The hearings were also held to
solicit comments on the proposed rule to designate critical habitat for
the Huachuca water umbel, Lilaeopsis Schaffneriana var. recurva (63 FR
71838). A notice of hearings and locations was published in the Federal
Register on January 26, 1999 (64 FR 3923). A total of 89 people
attended the public hearings, including 10 in Coolidge, 28 in Sierra
Vista, and 51 in Tucson. Transcripts of these hearings are available
for inspection (see ADDRESSES section).
We requested four Arizona ornithologists, who are familiar with
this species and were not on the appointed Cactus Ferruginous Pygmy-owl
Recovery Team, to peer review the proposed critical habitat
designation. However, only one of the peer reviewers submitted
comments. He concluded that ``sound scientific information about
habitat requirements and movements is the most essential matter related
to the conservation of the CFPO (pygmy-owl).'' Further, he summarized,
``I oppose this designation because it is not based on adequate
scientific data, and also because it detracts from the path of
gathering good data by wasting public resources on needless, time-
consuming actions related to bureaucratic process, not species
conservation.''
We received a total of 21 oral and 268 written comments during the
2 comment periods. Of those oral comments, 4 supported critical habitat
designation, 16 were opposed to designation, and 1 provided additional
information but did not support or oppose the proposal. Of the written
comments, 59 supported designation, 182 were opposed to it, and 21
provided additional information only, or were nonsubstantive or not
relevant to the proposed designation. In total, oral and written
comments were received from 10 Federal agencies, 7 State agencies, 9
local governments, and 242 private organizations, companies, or
individuals.
All comments received were reviewed for substantive issues and new
data regarding critical habitat and the pygmy-owl. Comments of a
similar nature are grouped into 9 issues relating specifically to
critical habitat. These are addressed in the following summary.
Issue 1: Biological Justification and Primary Constituent Elements
1a) Comment: How could the Service determine areas essential for
conservation of the species since little is known about their habitat
needs? Designation of critical habitat should be delayed until it is
determinable and better information becomes available on the species.
Stale, inaccurate data were used in the proposal.
Service Response: Under sections 4(a)(3)(A) and 4(b)(6)(C) of the
Act, critical habitat must, to the maximum extent prudent and
determinable, be designated at the time of listing. If there is
insufficient information to perform the required impact analysis of
designation, or the biological needs of the species are not
sufficiently known to permit identification of an area as critical
habitat, it may be delayed up to 1 year. On December 12, 1994, we
published a proposed rule to list the pygmy-owl as endangered with
critical habitat (59 FR 63975). On March 19, 1997, we published a final
rule listing this species as endangered. In that final rule, we
determined that designaton of critical habitat was not prudent, because
of the potential harm to the species from publishing precise location
maps as required for critical habitat designation (62 FR 10730). Given
the amount of time since the pygmy-owl was listed as endangered (over
20 months), a ``not determinable finding'' is no longer possible.
Because of the October 7, 1998, court order, we must now designate
critical habitat using the best information currently available.
Although much additional biological information for this species is
needed, some of its biological needs are known. In making this
designation, we reviewed all pygmy-owl records within the historical
range of this subspecies in Arizona. To the extent possible, given the
short time available, we utilized the most current scientific
literature; vegetation descriptions; information from outside sources
such as species experts, agencies, and others; and field reconnaissance
of specific areas in developing this final rule.
1(b) Comment: The Service, in partnership with counties and
municipalities, needs to develop science-based surveys and studies to
determine recovery efforts needed.
Service Response: We agree that additional surveys and ecological
studies are needed. We are currently working with Pima County in their
efforts to conduct comprehensive studies within the County, that will
serve as the foundation for their Habitat Conservation Plan, which is
currently under development. We encourage others to complete surveys
and life history studies on their lands to assist them in managing for
pygmy-owls. We welcome new partnerships with any entity in order to
conserve pygmy-owls.
[[Page 37427]]
1(c) Comments: There is no biological justification or analysis to
designate unoccupied areas or use a ``connect the dots approach'' in
determining areas as critical habitat. Some areas in Units 1, 2, 5b, 6,
and 7 are not connected by habitat and should not be included.
Service Response: Much of the area designated as critical habitat
has never been surveyed for pygmy-owls. Therefore, it is unknown if
owls are currently present. We designated critical habitat in areas
that include sites we believed were essential for the conservation of
the species and those needing special management considerations. Pygmy-
owls may be present in those areas. We also believe areas between
recent sightings play an important role and are essential to
conservation of the species for the following reasons--(1) it is
unknown if owls are in fact using these areas due to the lack of past
survey effort; (2) areas of suitable or potentially suitable habitat
located between areas of known owl occurrence are very important to
allow pygmy-owls to colonize new areas; (3) they provide areas where
pygmy-owls can disperse or facilitate movement between occupied areas
for genetic interchange; and (4) they require special management
considerations.
There are some areas within the critical habitat boundaries that,
by definition of the primary constituent elements, are not critical
habitat. We have provided additional habitat element descriptions where
possible for each mapping unit to assist landowners and managers in
identifying areas containing these elements or where these elements
have the potential to develop on their lands. Refer to the description
of each unit within this final rule.
Much of southern Arizona contains areas that provide potentially
suitable habitat that may support pygmy-owls. However, as directed in
section 3(5)(A)(i and ii) of the Act, we have only designated those
areas that we believe are essential to conservation of the species.
Pygmy-owls may be present in some of those areas, but many areas have
not yet been surveyed.
(1d) Comment: How could the Service determine critical habitat when
it doesn't know what viable populations are necessary to recover the
species?
Service Response: A population viability analysis for this species
has not been undertaken, however, we are required to designate critical
habitat to the maximum extent prudent and determinable using existing
information. Although population viability information will be useful
in developing a recovery strategy for the species, it is not required
to make this determination of critical habitat. A population viability
analysis is unavailable for many species due to the lack of demographic
information, habitat requirements, and other information required for
an analysis. Studies to determine viable population levels for the
pygmy-owl could not be conducted within the time frame given by the
court and are not required by the Act for designation of critical
habitat.
1(e) Comment: Critical habitat should not be designated until a
recovery plan is completed.
Service Response: Although having a recovery plan in place is
extremely helpful in identifying areas as critical habitat, the Act
does not require a plan be prepared prior to such designation. Section
4(c) specifically requires that critical habitat be designated at the
time a species is listed, or within 1 year if not determinable at
listing. Once a recovery plan is finalized, we may revise the critical
habitat described in this final rule if appropriate, to reflect the
goals and recovery strategy of the recovery plan.
1(f) Comments: Only riparian areas should be designated since
Sonoran desertscrub is only marginal habitat for pygmy-owls in Arizona.
The Service should stress riparian restoration in recovery efforts for
the pygmy-owl.
Service Response: At the time the pygmy-owl was listed, it was
almost exclusively known from historical records to occur in riparian
woodlands and mesquite bosques. Since these early records, all active
sites have been located in Sonoran desertscrub, xeroriparian, or desert
grassland habitats. Based on our current knowledge, both riparian and
other habitat types appear to be important.
1(g) Comments: The habitat assessment key should have been used to
identify areas of critical habitat. Some areas that rated low using
this key were designated critical habitat, such as in Units 1 and 5b.
Why were these two units included since they are of low quality? Why
was Unit 1 designated when there have never been owls present?
Service Response: The BLM developed a habitat assessment key for
its use to prioritize areas to survey that may be suitable for pygmy-
owls. Not enough information is currently known regarding range-wide
habitat requirements to develop a key with specific criteria that would
apply to all habitats. Habitats where pygmy-owls have been found in the
greater Tucson area are vastly different from other areas of the State,
such as Organ Pipe Cactus National Monument and the Altar Valley. The
BLM methodology uses specific habitat evaluation criteria to assess
distinct habitats found on their lands within specific regions of the
State. The BLM believes, and we concur, that it would be inappropriate
to use this methodology to identify areas of critical habitat and to
evaluate other habitats throughout the State since many of these
criteria do not apply to other regions. We are not aware of any
completed habitat assessments using the BLM methodology within Units 1
or 5b.
When we originally proposed critical habitat in December, 1998,
there was only one documented record of a pygmy-owl in Unit 1. Although
very few surveys had been completed in this area previously, potential
habitat was present and we believed this area was important to the
species. Since then, intensive surveys have been initiated in this unit
and the nearby refuge. As a result, nine pygmy-owl sites have been
found (Harris Environmental Group 1998; Aaron Flesch, pers. comm. 1999;
AGFD unpubl. data 1999). Therefore, we consider this unit essential for
recovery of the species. Likewise, other areas we have designated have
little survey data to date. Areas where pygmy-owls are not currently
known to exist because of lack of or limited survey efforts may also
have pygmy-owls. We encourage landowners and managers with suitable
habitat described in this rule to conduct surveys for pygmy-owl. We
agree that Unit 5b likely contains limited nesting habitat; however,
the mesquite-lined washes in this unit provide, at a minimum, dispersal
habitat for owls moving between Units 4 and 6.
1(h) Comment: Critical habitat boundaries do not appear to reflect
habitat; rather they follow squared-off, arbitrary lines.
Service Response: We are required to describe critical habitat (50
CFR Sec. 424.12(c)) with specific limits using reference points and
lines as found on standard topographic maps of the area. Due to the
time constraints imposed by the court, the absence of detailed
vegetation maps, we followed roads, railroads, and section or township
lines wherever possible to delineate the critical habitat boundaries.
Some pygmy-owl unsuitable habitat areas may be included in these mapped
areas. Under 50 CFR Sec. 424.12(d), when several habitat areas are
located in proximity to one another, an inclusive area may be
designated as critical habitat.
(1i) Comments: Why are some areas that do not appear to have
suitable pygmy-owl habitat or to contain any of the primary constituent
elements included as critical habitat? Only those areas with these
constituent elements
[[Page 37428]]
should be designated (15 USC Sec. 1532 (5)(A) and 50 CFR Sec. 424.12).
Service Response: As previously stated in this document, due to
time constraints, we were not able to eliminate areas within the
critical habitat boundaries that do not contain, or do not have the
reasonable likelihood of ever containing, the primary constituent
elements necessary for the pygmy-owl. However, any areas that do not,
and cannot, support these elements are, by definition, not considered
to be critical habitat, even though they are within the identified
boundaries.
(1j) Comments: Areas with reduced value as pygmy-owl habitat should
not be included. Commenters cited the following factors as to why their
lands had little value as pygmy-owl habitat--lack of some primary
constituent elements, ``low-quality'' habitat, nearby major roads,
schools, or high-density housing, and lack of saguaros or ironwoods.
Some areas may not be suitable because they are adjacent to planned
developments such as future road-widening projects or housing
developments.
Service Response: We have documented the presence of pygmy-owls
near developed lands, roads, and areas that possess some, but not all,
of the primary constituent elements. Therefore, we are including areas
near developed lands that contain at least some primary constituent
elements as critical habitat because owls use these areas. We believe
these areas also play an important role for pygmy-owls for some of
their life history requirements such as foraging or dispersal. We can
not exclude areas as critical habitat because of projected projects or
proposed activities, unless the economic impact outweighs the benefit
to the species (section 4(b)(2) of the Act). Although ironwoods are
commonly found at sites in the northwest Tucson area (Wilcox et al.
1999), numerous other historical and recent sites lack ironwoods.
Therefore, we do not believe ironwoods are specifically a necessary
component for pygmy-owls. Further research is needed to fully
understand this species' habitat needs and life history requirements.
(1k) Comment: You should not only designate currently occupied
sites, but also sites with suitable or potential habitat that was
previously occupied, and also dispersal habitat.
Service Response: The Act (section 3(5)(C)) states that not all
areas capable of being occupied by the species should be designated as
critical habitat unless we determine that such designation is essential
to the species' conservation. In determining what areas are critical
habitat, we considered areas and constituent elements that are
essential to the conservation of the species and that may require
special protection or management considerations (50 CFR
Sec. 424.12(b)). Thus, not all areas occupied or potentially occupied
by a species are eligible for designation. Our rationale for not
designating all occupied pygmy-owl sites as critical habitat are
discussed in the section entitled ``Critical Habitat Designation.'' Due
to time constraints and because of a lack of survey data to indicate
documented pygmy-owl presence, we cannot assert that pygmy-owls are not
present in a particular area designated as critical habitat. This
critical habitat designation contains areas that may be important for
pygmy-owl dispersals.
(1l) Comments: There was no scientific basis for the constituent
elements described in the proposed rule. The definition of constituent
elements should be expanded to include dispersal habitat such as
creosote bush and grasslands. The constituent elements described are
vague (violating 50 CFR Sec. 424.12(c)) and are overly inclusive, and
should include the required greater detail defining structure, species
richness, and juxtaposition of riparian and xeroriparian areas with
adjacent upland habitat types. Identified corridors are not based on
known movement of owls, and appear to be sheer guesswork.
Service Response: The primary constituent elements described in
this final rule are elements for which we have evidence of use by
pygmy-owls in Arizona. Smaller diameter trees and shrubs, though not
suitable nesting structure, appear suitable for dispersal movements
and/or support prey species for pygmy-owls (Proudfoot, pers. comm.
1999). Pure stands of extensive grassland do not support primary
constituent elements; however, grasslands with scattered mesquites or
other trees or shrubs provide dispersal and foraging habitat and
drainages within grasslands containing trees with cavities may also
provide suitable nesting habitat. Information regarding movement of
pygmy-owls gathered in Arizona and Texas was used to determine
suitability of dispersal corridors.
To date, pygmy-owl habitat studies have been limited to descriptive
studies in the greater Tucson area. Habitat in this study area is
vastly different from sites elsewhere in the State with historical and
recent pygmy-owl sightings. In addition to this Tucson habitat study
(Wilcox et al. 1999), we are aware of two additional habitat studies
that are scheduled to begin in the summer of 1999, which will analyze
habitats where other pygmy-owls are found in the State. These
additional studies will examine habitats used by pygmy-owls in areas
containing very different habitats compared to previous studies. Random
sites will also be studied in the state to determine use versus
availability. These studies will provide valuable information about the
habitat needs of pygmy-owls and will be useful to us and others in
meeting the conservation needs of the species.
As noted earlier, pygmy-owls use a variety of habitats. We have
described in the greatest detail possible in this final rule the
constituent elements important to pygmy-owls known at this time. If new
information later becomes available as a result of the above mentioned
or other studies regarding the habitat needs of this species, we will
then evaluate whether a revision of designated critical habitat is
warranted. In addition, as new habitat information becomes available
that can further refine habitat definitions and descriptions, it will
be used in future section 7 consultations and recovery planning for the
pygmy-owl.
Issue 2: Take of Private Property/Additional Burdens on Private
Landowners
(2a) Comment: The designation of critical habitat would constitute
``taking'' of private property rights; thus a takings implications
assessment, as required by Executive Order 12630, must be conducted.
Service Response: The designation of critical habitat has no effect
on non-Federal actions taken on private land, even if the private land
is within the mapped boundary of designated critical habitat. Critical
habitat has possible effects on activities by private landowners only
if the activity involves Federal funding, a Federal permit, or other
Federal action. If such a Federal nexus exists, we will work with the
landowner and the appropriate Federal agency to ensure that the
landowner's project can be completed without jeopardizing the species
or adversely modifying critical habitat.
Executive Order 12630 requires that Federal actions that may affect
the value or use of private property be accompanied by a takings
implication assessment. As discussed in our response to Issue 9,
(McKenney et al. 1999), the economic analysis found that designation of
critical habitat would have no economic effect above that already
imposed by listing. The primary effect of critical habitat designation
on private property is to identify areas important for the conservation
of the species. In addition, if a Federal action
[[Page 37429]]
occurs on those private lands, such as issuance of a Clean Water Act
section 404 permit, the Federal action agency would be required to
consult with us pursuant to section 7 of the Act if that action may
affect the pygmy-owl or its critical habitat. In Arizona, all private
landowners that have applied for a section 10 take permit to allow them
incidental take of a federally listed species have been issued permits,
and all projects that have completed the section 7 consultation process
have gone forward.
(2b) Comments: The designation of critical habitat would place an
additional burden on landowners above and beyond what the listing of
the species would require. The number of section 7 consultations will
increase; large areas where no pygmy-owls are known to occur will now
be subject to section 7 consultation. Many Federal agencies have been
making a ``no effect'' call within unoccupied suitable habitat. Now,
with critical habitat there will be ``may effect'' determinations, and
section 7 consultation will be required if any of the constituent
elements are present.
Service Response: If a Federal agency funds, authorizes, or carries
out an action that may affect either the pygmy-owl or its critical
habitat, the Act requires that the agency consult with us under section
7 of the Act. For a project to affect critical habitat, it must affect
the habitat features important to the pygmy-owl, which are the primary
constituent elements described in this final rule. Our view is and has
been that any Federal action within the geographic area occupied by the
species that affects these habitat features should be considered a
situation that ``may affect'' the pygmy-owl and should undergo section
7 consultation. This is true whether or not critical habitat is
designated, even when the particular project site within the larger
geographical area occupied by the species is not known to be currently
occupied by an individual pygmy-owl. All areas designated as critical
habitat are within the geographical area occupied by the species, so
Federal actions affecting essential habitat features of the species
should undergo consultation. Thus, the need to conduct section 7
consultation should not be affected by critical habitat designation. As
in the past, the action agency will continue to make the determination
as to whether their project may affect a species even when the
particular site is not known to be currently occupied by an individual
pygmy-owl.
Issue 3: National Environmental Policy Act.
Comment: The designation of critical habitat constitutes a major
Federal action significantly affecting the quality of the human
environment. An environmental impact statement (EIS) should be
prepared.
Service Response: We have determined that Environmental Assessments
(EAs) and EISs, as defined under the authority of the National
Environmental Policy Act of 1969 (NEPA), need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register in October, 1983 (48 FR 49244).
Issue 4: Lands with Habitat Conservation Permits to be Excluded
from Critical Habitat.
Comments: It is illegal and unscientific to withdraw critical
habitat designation from land covered by an approved or future Habitat
Conservation Plan (HCP) incidental take permit. Critical habitat
protects land essential for conservation, which is a higher standard
than a HCP permit which only assures that jeopardy would not occur. The
HCP take permit has no public process analysis or scientific
accountability. HCPs should maintain constituent elements. Regional
HCPs are preferred to individual permits. Individual HCPs should not be
approved until a regional HCP is completed in Pima County.
Service Response: Before we issue a section 10 permit, we must
determine that the HCP provides for the conservation of the species. As
a part of the permit evaluation process, we must determine whether our
action of issuing the section 10 permit is likely to jeopardize the
continued existence of the species or result in adverse modification of
critical habitat. Thus, when a HCP is approved through a section 10
permit, we will have already determined that critical habitat would not
be adversely modified. HCP permits for lands over 5 acres in size are
required to go through the NEPA process that involves public
participation and comment. Monitoring and adaptive management are
important components of the HCP process to ensure that needed actions
are taken and that actions can be modified, as needed, as new
information is collected.
We agree that maintaining the primary constituent elements is an
important consideration in developing HCPs. In addition, we strongly
support regional multiple-species HCPs such as the one currently under
development by Pima County, and we encourage this broad-based approach
to others within the region. Experience gained from development of
similar plans indicates that because of their complexity, these plans
typically take a year or more to complete. We encourage landowners and
members of the public in the region to participate in this planning
effort; however, we realize that it would be unrealistic for some to
wait until the county's plan is finalized. We cannot preclude any
applicant from pursuing an individual HCP pending the development of a
regional plan.
Issue 5: Section 7 Consultation and Section 9.
(5a) Comments: How will the Service conduct section 7 consultations
on land immediately adjacent to critical habitat; would additional
buffers be required?
Service Response: We address all direct, indirect, inter-related,
and interdependent effects of projects under section 7 consultation,
which could include effects to areas outside of the immediate project
area (downstream effects, for example). However, if a project is
adjacent to, but not within, critical habitat and has no direct or
indirect effect on critical habitat, that would be acknowledged in the
section 7 Biological Opinion, and only effects to the species would be
addressed.
(5b) Comment: Section 9 does not fully protect habitat absent a
critical habitat designation because critical habitat can include
unoccupied habitat. There is a clear distinction between the
``jeopardy'' and ``adverse modification of critical habitat''
prohibitions. In its final rule listing the pygmy-owl as endangered,
the Service states that clearing of unoccupied habitat is not a section
9 ``take.'' The courts have consistently held that for a party to
assert that removal or disturbance of vegetation from an area will
result in take of an endangered species, such a party must demonstrate
that the species is present in the area or otherwise using it for
essential behavioral functions. Where there is no owl, there is no
take.
Service Response: We agree that section 9 does not protect
unoccupied habitat, i.e., areas from which the pygmy-owl has been
extirpated. However, as discussed in our response to comment 2(b)
above, section 7 requires consultation on Federal actions that may
affect a listed species or its critical habitat. An action agency may
determine that a project may affect a species even when the particular
site is not known to be currently occupied by an individual pygmy-owl.
It is our view that actions affecting suitable pygmy-owl habitat within
the known range of the pygmy-owl, whether or not that area has been
designated as critical habitat and whether or not it is known to
[[Page 37430]]
currently support an individual, should undergo review under section 7.
Issue 6: Designation by Specific Land Ownership.
(6a) Comments: Designation of critical habitat is not necessary on
non-Federal lands because vast tracts of Federal and Tribal lands are
already protected. For instance, over 87% of Pima County is owned by
the government; the Service should move the owls to those lands.
Service Response: The Act defines critical habitat as those areas
essential to the conservation of the species and that are in need of
special management considerations or protection. We agree that Federal
lands provide a significant amount of the habitat currently occupied by
the pygmy-owl, and that those lands are essential to the species'
conservation. However, much of the currently occupied habitat is on
non-Federal land, especially in Pima County. As stated in the proposed
rule, we tried to avoid designation on non-Federal lands except when
those lands are, because of their location or the habitat they support,
necessary to ensure pygmy-owl conservation. We do not believe that
Federal and Tribal lands alone, are adequate to ensure the species'
conservation.
(6b) Comments: Exemption of Federal lands such as National Parks
and National Wildlife Refuges is illegal, violating 50 CFR Sec. 424.12,
and draft guidance exhibit 2, pp 5, 11-12, which states that lands must
be evaluated regardless of ownership. None of those lands have an owl
plan, and there is no basis to claim that future management will be
consistent with critical habitat protections. The Service does not have
the statutory authority to exclude areas because it feels their current
management is compatible with pygmy-owls, and the benefits from
exclusion must be greater than that of inclusion.
Service Response: In determining what areas are critical habitat,
we consider physical and biological features that are essential to the
conservation of the species and that may require special management
considerations or protection (50 CFR Sec. 424.14(b)). Organ Pipe Cactus
National Monument, Saguaro National Park, and Buenos Aries and Cabeza
National Wildlife refuges provide important habitat for the pygmy-owl.
These areas were excluded from designation not simply because of
ownership, but because we believe these areas are managed in such a way
that provides for natural values, including protection of threatened
and endangered species. We believe that these specific areas are
managed and likely will continue to be managed in a manner compatible
with pygmy-owl needs, and are therefore not in need of special
management considerations or protection.
(6c) Comments: Exemption of Tribal lands is illegal, and there is
no evidence that current densities on Tribal lands are as high as
historical levels, nor that the population is increasing. The Service
states that, because the owl occurs on the reservation, Tribal
management is compatible with pygmy-owls. Failure to designate critical
habitat on Tribal lands violates the Equal Protection Clause of the
United States Constitution and the Administrative Procedures Act.
Service Response: Given the lack of species' location and habitat
information on Tribal lands available at the time of drafting the
proposed rule, we were unable to thoroughly assess either the status of
the species on those lands, or the management practices currently
employed by the tribes. The court's order required publication of a
proposed rule within only 30 days and a final rule in 6 months. Given
the extensive preparation and review requirements of publishing a
proposed rule, our staff had but a few days to develop the critical
habitat maps and determine what areas are both essential to the
species' conservation and in need of special management considerations
or protection. Further, Secretarial Order 3206 requires significant
coordination with Tribal governments, as well as several specific
determinations, prior to proposing Tribal land as critical habitat. The
30 days allowed by the court precluded the analyses and coordination
that would have been necessary before proposing critical habitat on
Tribal lands. We therefore based our proposal on the best scientific
and commercial information available, as required by the Act.
(6d) Comments: To designate State trust lands because they are
owned by the State is arbitrary, capricious, discriminatory, and
unlawful; they should be treated as private lands. The Service
considers State lands as public lands and therefore assumes that the
limitations of use resulting from designation of critical habitat will
not adversely affect the landowner. The Service did not justify the
assumption that State lands require special management considerations.
Service Response: We first identified areas essential to the
conservation of the species. We looked first to Federal, then State
lands to develop a configuration that would include most occupied
pygmy-owl sites, connected across the species' range. Our reasoning was
that the Act clearly puts the largest share of the burden on Federal
agencies and Federal lands in conserving listed species. The Act also
considers the states to be important partners in species' conservation
efforts. Where possible, we therefore proposed Federal and State lands
as the primary areas to concentrate pygmy-owl recovery, with private
lands included where necessary. As stated in the economic analysis and
this final rule, we do not believe the designation of critical habitat
will have adverse economic effects on any landowner, including the
State of Arizona, above and beyond the effects of listing of the
species (McKenney et al. 1999).
Future management practices of State trust lands are uncertain in
areas we have determined essential to the recovery of this species and
may in some instances not be compatible with conservation efforts;
therefore, we believe that designation of these lands is warranted. We
believe that designation of these and other lands as critical habitat
does not result in additional economic or other effects to the
landowner above that which would occur from listing the species.
Issue 7: Legal and Procedural Comments.
(7a) Comments: The Service did not consult, nor allow for an
appropriate level of involvement with, the State of Arizona, counties,
and cities in areas proposed as critical habitat.
Service Response: In regard to the role of local governments in
decisions to determine critical habitat, the Act requires we ``give
actual notice of the proposed regulation (including the complete text
of the regulation) to * * * each county or equivalent jurisdiction in
which the species is believed to occur, and invite the comment of such
agency, and each jurisdiction'' (section 4(b)(5)(A)(ii) of the Act).
Due to the limited time allowed by the court and plaintiffs, we were
not able to individually contact all of the entities that could be
affected by this proposal; however, we notified each affected county,
several cities, and many special interest groups of the proposed rule
and draft economic analysis. All entities, including the State and
local municipalities, were given ample opportunity, during two separate
public comment periods and three public hearings, to submit their
concerns and have them addressed in the final rule. Numerous local,
city, county, State, and Federal agencies provided comments during two
public comment periods and three public hearings; we reviewed and
considered these comments in developing this final rule.
(7b) Comments: The court order was not to designate critical
habitat, but
[[Page 37431]]
rather to reconsider whether it was prudent to do so. The court
referred to only 12 of the 28 items of evidence the Service provided in
its original ``not prudent'' determination. Designation of critical
habitat provides no additional benefits to the species and can lead to
increased threats from bird watchers or retaliation against the species
as happened with the Mexican wolf. The Service lacks sufficient
original information and its original not prudent finding was correct
until future research is done.
Service Response: The Act requires the Secretary, ``to the extent
prudent and determinable,'' to designate critical habitat concurrently
with listing a species as threatened or endangered. Regulations under
50 CFR Sec. 424.12(a)(1) state that critical habitat is not prudent
when one or both of the following situations exist--(i) the species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of such threat,
or (ii) designation of critical habitat would not be beneficial to the
species.
We determined in our final rule listing the species as endangered
(62 FR 10730) that critical habitat designation would increase the
threat of harassment of owls by bird watchers and increase the
potential for vandalism. The court found this determination to be
arbitrary and capricious, and remanded the ``not prudent'' finding to
us.
As stated in our economic analysis (McKenney et al. 1999), we
believe that designation of critical habitat for the pygmy-owl provides
no significant additional impacts or benefits to the species beyond
that which would occur, or is provided, through listing the species as
endangered. While we believe this argument fits the second argument for
a ``not prudent'' finding, the court order cited a previous finding in
the 9th Circuit (Natural Resources Defense Council v. Department of
Interior; 113 F3d 1121, 1126) that it was Congress' intent that the
imprudence exception be a rare exception. This and other statements in
the court order led us to believe that another ``not prudent'' finding
based on the available information would be inconsistent with the court
order.
(7c) Comment: The biological benefits of critical habitat are
outweighed by the benefits of exclusion.
Service Response: Section 4(b)(2) of the Act and 50 CFR Sec. 424.19
requires us to consider excluding areas from critical habitat
designation if we determine that the benefits of exclusion outweigh the
benefits of designating the area as critical habitat, unless that
exclusion will lead to extinction of the species concerned. As
discussed in this final rule, we have determined that no adverse
economic or other effects will result from this critical habitat
designation (McKenney et al. 1999). Therefore, no areas were found
where the benefits of exclusion outweighed the benefits of including
the areas as critical habitat.
(7d) Comments: The Service must consider the entire range,
including Mexico, in determining areas of critical habitat. The Service
has never found that the Arizona population is a distinct population
segment from the Mexican population.
Service Response: Regulations at 50 CFR Sec. 424.12(h) state that
critical habitat shall not be designated within foreign countries or in
other areas outside of United States jurisdiction. We agree that the
status of the species in Mexico will be an important consideration in
recovery of the species in Arizona. However, maintenance of a healthy
population in the U.S. also depends on areas within the pygmy-owls'
historical U.S. range, and we have determined that those areas are
essential to the species' conservation.
(7e) Comment: The Service failed to comply with a number of
required determinations, including Executive Orders 12291, 12630,
12866, and 50 CFR Secs. 424.12(c)(d), and Sec. 424.19 as well as the
Regulatory Flexibility Act and the Unfunded Mandates Reform Act.
Service Response: These Executive Orders and other Acts are
discussed in the ``Required Determinations'' section of this final
rule. Issues pertaining to 50 CFR Sec. 424.14(c)(d) and 424.19 are
addressed elsewhere in this final rule.
(7f) Comment: Critical habitat will have potential impacts on water
resource use by Arizona and local agencies. How has the Service
coordinated with these groups to resolve water resources issues?
Service Response: This final rule does not authorize our
jurisdiction over water rights, and we do not anticipate impact to
local economies or citizens as a result of this designation as we state
elsewhere in this rule. Critical habitat designation does not, in
itself, restrict groundwater pumping or water diversions; nor does it
in anyway restrict or usurp water rights or violate State or Federal
water laws. Local agencies, governments, and individuals have had the
opportunity to provide comments during two comment periods, and three
public hearings. We will work with these groups during the section 7
consultation process as necessary to ensure their activities comply
with the Act and other Federal and State laws.
(7g) Comment: Designation of critical habitat on Arizona State
trust lands violates the Arizona-New Mexico Enabling Act of 1910.
Service Response: Under the provisions of the Arizona and New
Mexico Enabling Act, in 1910, Congress granted title to certain Federal
lands within the borders of Arizona to the State of Arizona for the
purpose of creating a trust to provide financial support to the Arizona
common schools, universities, and other public institutions operated by
the State. However, the State trust created under the Enabling Act is
not immune from the operation of otherwise applicable Federal law,
including the Endangered Species Act. Further, we do not anticipate
that critical habitat designation will affect the State's ability to
utilize their trust lands in a manner that will provide financial
support to State institutions. Even if there are situations where a
State activity requires Federal authorization or funding, we do not
anticipate any restrictions beyond those that may result from listing
the pygmy-owl as endangered.
(7h) Comments: Critical habitat should not have been proposed
before an economic and other impacts analysis was completed, and the
opportunity to comment on the economic analysis and the proposed rule
was limited. Several requests were received to extend the public
comment period.
Service Response: We are not required to conduct an economic
analysis at the time critical habitat is initially proposed. We
published in the Federal Register (63 FR 71820) the availability of the
proposed rule and invited public comment which we used to develop a
draft economic analysis (McKenney et al. 1999). We invited public
comments for 30 days on this draft analysis, which we believe was
sufficient given the short-time frame ordered by the court. Because of
the court-ordered time frame, we were not able to extend the public
comment period.
(7i) Comment: Maps and descriptions provided are vague and violate
the Act and 50 CFR Sec. 424.12(c).
Service Response: This final rule contains the required legal
descriptions of areas designated as critical habitat. The accompanying
maps are for illustration purposes. If additional clarification is
necessary, contact the Arizona Ecological Service Field Office (see
ADDRESSES section). We identified specific areas referenced by specific
legal description, roads, railroads, and other landmarks, which are
found on standard topographic maps.
[[Page 37432]]
(7j) Comment: Once land is designated as critical habitat it will
likely result in a panoply of Federal, State, and local land use laws,
and restrictions or extra procedures.
Service Response: We are unaware of any information that indicates
any new State or local laws, restrictions, or procedures will result
from critical habitat designation. Should any State or local regulation
be promulgated as a result of this rule, this would be outside of the
authority of the Service under the Act. The comment is correct in that
projects funded, authorized, or carried out by Federal agencies, and
that may affect critical habitat, must undergo consultation under
section 7 of the Act on the effects of the action on critical habitat.
However, as stated elsewhere in this final rule, we do not expect the
result of those consultations to result in any restrictions that would
not be required as a result of listing the pygmy-owl as an endangered
species.
(7k) Comment: Additional areas not identified in the proposed rule
should be designated critical habitat.
Service Response: Section 4(b)(4) of the Act requires that
designation of critical habitat undergo the regulation promulgation
procedures identified under 5 U.S.C. 553. That is, areas designated as
critical habitat must first be proposed as such. Thus, we cannot make
significant additions in the final rule to the areas included in the
proposed rule. Designation of such areas would require new proposed and
final rules. The Act explicitly states that not all suitable or
occupied habitat be designated as critical habitat, rather only those
essential for the conservation of the species (50 CFR Sec. 424.12 (e)).
The pygmy-owl recovery team is currently developing a recovery plan
for this species. During the development of a recovery strategy, the
team will not only closely examine areas designated as critical habitat
but also all lands within the listed population, to determine their
importance and role in the recovery of the species. This process will
allow substantially more in-depth analysis than we were afforded by the
court and plaintiffs to designate critical habitat. If the recovery
team, as a result of new information or analysis, further refines those
areas designated in this final rule or identifies additional areas
which they determine are essential to the conservation of the species,
we will evaluate whether a revision of critical habitat is warranted at
that time.
Issue 8: Specific Projects and Activities.
(8a) Comments: Critical habitat would affect specific projects such
as erosion control measures on Brawley Wash and fire management in the
Altar and Falcon Valley regions. Grazing would be affected by
designation on private lands.
Service Response: Critical habitat designations only apply to
Federal lands, or federally funded or authorized projects on private
lands. If there is no Federal nexus or involvement, then additional
considerations are not necessary (see Issue 2 above). Where a Federal
nexus exists, designation of critical habitat does not preclude
projects or activities such as riparian restoration, erosion control,
fire management, or grazing if they do not cause an adverse
modification of critical habitat. We will work with landowners within
designated critical habitat and Federal agencies that are required to
consult with us under section 7 of the Act to ensure that land
management will not adversely modify critical habitat. We also
encourage landowners to restore riparian habitats including erosion
control measures, and we can provide financial and technical assistance
through our Partners for Fish and Wildlife Program.
(8b) Comment: Designation of areas with existing pipelines and
aqueducts would be affected and should be excluded. Routine maintenance
of trails should be excluded.
Service Response: Periodic maintenance of existing pipelines,
roads, trails, or aqueducts would not typically constitute adverse
modification of critical habitat. These areas generally lack the
primary constituent elements described in this rule, and it is our
intention to exclude such areas by definition. If maintenance would
require removal of constituent elements, and Federal involvement is
part of that activity, then section 7 consultation may be necessary.
(8c) Comment: Designation of critical habitat may compromise
wildfire prevention and suppression activities in those areas.
Service response: We agree that wildfire prevention and suppression
activity is very important to protect human life and property, and also
from a resource protection standpoint. Fire protection of areas
designated as critical habitat will be essential to ensure the
conservation of the species. We will work with all landowners and
managers responsible for these activities to ensure adequate fire
prevention and suppression measures are in place and to protect
resource values. Only fire prevention and suppression activity
undertaken or funded by a Federal agency would require consultation
under section 7 of the Act. Non-Federal activities will not be affected
by critical habitat designation.
Issue 9: Economic Impacts.
(9a) Comment: The assumption applied in the economic analysis that
the designation of critical habitat will cause no impacts above and
beyond those caused by listing of the species is faulty, legally
indefensible, and contrary to the ESA. ``Adverse modification'' and
``jeopardy'' are different, will result in different impacts, and
should be analyzed as such in the economic analysis.
Service Response: The designation of critical habitat for the
pygmy-owl has been evaluated in the economic context known as ``with''
and ``without'' the rule. It was found that the survival of the pygmy-
owl makes it necessary that any adverse modification of its habitat
would jeopardize the species. Under this condition, any and all
economic consequences would be due to the jeopardy call under section 7
of the Act, and an adverse modification without a jeopardy call would
not occur. Further, it is our position that both within and outside of
critical habitat, Federal agencies should consult under the jeopardy
standard if a proposed action is (1) within the geographic areas
occupied by the species, whether or not owls have been detected on the
specific project site; (2) the project site contains habitat features
that can be used by the species; and (3) the proposed action is likely
to adversely affect that habitat. The economic consequences identified
during the comment period are all due to the listing of the pygmy-owl
and not the designation of critical habitat. The economic analysis of
designating critical habitat determined that the same regulatory
process is in place ``with'' as well as ``without'' the rule, and
consequently found no economic effects.
(9b) Comment: The proposed designation of critical habitat will
impose economic hardship on private landowners and businesses. There is
an expressed concern that the proposed critical habitat designation
would have serious financial implications for commercial and
residential development businesses. It is suggested that designation
would result in reduced property values, lost tax revenues, lost jobs,
and foregone economic activity.
Service Response: As stated in the economic analysis, the proposed
rule to designate critical habitat for the pygmy-owl is not adding any
new requirements to the current regulatory process. Since the adverse
modification standard for critical habitat and the jeopardy standard
are almost identical, the listing of the pygmy-owl itself initiated the
requirement for consultation. This
[[Page 37433]]
critical habitat designation adds no additional requirements not
already in place due to the species' listing.
(9c) Comment: There is an expressed concern that the delay in
acquiring Federal permits or the inability to acquire permits for
further development, as a result of section 7 consultation, would be an
economic hardship to both developers and homeowner associations.
Service Response: The requirement for Federal agency consultation
under section 7 of the Act for actions they carry out, fund, or
authorize on Federal or non-Federal lands resulted from listing of the
species, and no new requirements are imposed by critical habitat
designation.
(9d) Comment: There is an expressed concern that the value and
security of bonds issued to construct public infrastructure might be
threatened by critical habitat designation.
Service Response: Bonds issued by non-Federal entities that are not
insured by the Federal Government do not constitute a Federal nexus.
However, an incidental take permit issued under section 10 of the Act
would still be required if a taking of the pygmy-owl is possible. The
designation of critical habitat does not add any additional
requirements to the section 10 incidental take permit process.
(9e) Comment: There is an expressed concern that all property
owners who will be adversely affected by the designation of critical
habitat should be provided just compensation.
Service Response: This designation of critical habitat will not add
any additional restrictions and will not affect property owners beyond
those restrictions resulting from the listing of the pygmy-owl as
endangered.
(9f) Comment: Critical habitat may disrupt current and future
Federal, State, and County land management activities and cause
economic losses.
Service Response: Federal agencies are required to consult with us
when a species is listed under the Act. State and County entities are
not required to consult with us unless a Federal nexus exists. The
designation of critical habitat does not add any new requirements or
restrictions.
(9g) Comment: The designation will have harmful impacts on the
quality of life, education, and economic stability of small towns.
There is an expressed concern that the proposed critical habitat
designation will change water diversions, groundwater pumping, road
maintenance and land development.
Service Response: As stated in the economic analysis, the proposed
rule to designate critical habitat for the pygmy-owl is not adding any
new requirements to the regulatory process. Since the adverse
modification standard of critical habitat and the jeopardy standard are
nearly identical, the listing of the pygmy-owl itself placed the
requirement for consultation. This final rule to designate critical
habitat adds no additional requirements that were not already in place
due to the species' listing.
(9h) Comment: There is an expressed concern that the designation
would limit the construction of much needed schools, colleges, and
community and recreation centers, thereby threatening the ability of
small towns affected by the designation to expand and diversify their
economy and to improve education.
Service Response: As previously stated, this final rule designating
critical habitat will not impose additional restrictions on private,
cities, counties, State or Federal lands. Restrictions already in place
due to the listing of the pygmy-owl require consultation with us when
there is a Federal nexus. Any limitations or restrictions on
construction were imposed due to the species' listing. Additional
restrictions are not expected.
(9i) Comment: There is an expressed concern that the economic
stability of the towns of Kearny, Hayden, and Winkelman, as well as
Pinal and Gila counties, depends on the continued operation of their
mining complex, and further regulatory costs would threaten the
corporation.
Service Response: Critical habitat designation will not add new
restrictions beyond those imposed by the listing of the pygmy-owl.
(9j) Comment: The Service's designation of critical habitat has not
adequately considered potential economic implications. There is
opposition to the fact that the Service did not prepare an initial
regulatory flexibility analysis to address potential impact to small
businesses, as required under the Regulatory Flexibility Act.
Service Response: The proposed rule was published under very tight
time constraints by the court order on December 24, 1998. At that time
we prepared a record of compliance (ROC) that the proposed critical
habitat designation would not have a significant economic impact on
small entities. A detailed analysis was initiated by a private firm
under contract and subsequently, we distributed a draft of the economic
analysis for a 30-day public comment period ending in May, 1999. The
findings of the economic analysis indicate that the designation of
critical habitat adds no new restrictions on economic activity that
were not due to the listing of the pygmy-owl. Therefore, there are no
economic effects on small entities attributable to this final rule, and
a regulatory impact analysis is not required.
(9k) There is a concern that the different jurisdictions impacted
by critical habitat designation should be addressed separately; impacts
should be addressed as individual cases, not collectively.
Service Response: If the economic analysis would have detected
economic effects attributable to the critical habitat designation, then
those effects would have been enumerated for each of the areas of
critical habitat and would have been estimated for each type of land
and management involved. This information would have been used by the
Secretary of the Department of the Interior to determine if the
benefits of exclusion of the land outweighed the benefits of including
the land as critical habitat. There are no economic effects
attributable to critical habitat designation so the issue of separating
economic effects is a moot point.
Summary of Changes From the Proposed Rule
Below is a summary of the changes made to the legal descriptions
for the cactus ferruginous pygmy-owl critical habitat designation. The
maps included in the proposed rule accurately depicted the critical
habitat proposed by the rule. Based on the comments we received, we
discovered that several areas within the proposed critical habitat were
not accurately described by the legal descriptions in the proposed
rule, although the areas were accurately depicted on the maps. As
discussed below, we are clarifying the legal descriptions in this final
designation to conform to the area depicted by the maps, which remain
unchanged.
Changes in the legal descriptions below are of three types: (1) The
result of typographical errors discovered after publication of the
proposed rule; (2) corrections in sectional descriptions resulting from
the use of more up-to-date Public Land Survey System data obtained from
the Arizona Land Resource Information System (ALRIS) to more closely
reflect mapped information of the proposed rule; and (3) clarification
of the description for Tucson Mountain County Park, the boundary of
which was obtained from Pima County Public Works and is more up-to-date
than that depicted on the BLM map cited in the proposed rule and which
was available from ALRIS.
[[Page 37434]]
Unit 1:
T. 19 S., R. 7 E.
T. 19 S., R. 8 E.
T. 21 S., R. 7 E.
Unit 2:
T. 14 S., R. 11 E.
T. 14 S., R. 12 E.
Unit 5b:
T. 9 S., R. 14 E.
Unit 6:
T. 4 S., R. 14 E.
T. 6 S., R. 15 E.
T. 6 S., R. 16 E.
T. 8 S., R. 16 E.
T. 9 S., R. 18 E.
T. 11 S., R. 18 E.
T. 12 S., R. 19 E.
Unit 7:
T. 1 N., R. 9 E.
As a result of using ALRIS data for ownership, the acres summary in
Table 1 also changed. The total acres increased by about 1% with the
greatest change in Pinal County where BLM's total was reduced and the
``Other'' category picked up that reduction. This is largely due to
acreage originally identified as BLM that was actually Bureau of
Reclamation when the newer data sets were analyzed. The remaining
acreage differences are attributed to the differing methods of
determining acres. For the proposed rule, sections and ownership were
roughly counted and totaled manually by visual inspection of the cited
maps. Subsequently, digital information was obtained from ALRIS and
Pima County, which was used to create the updated version of Table 1
(as well as the legal descriptions).
Finally, as mentioned previously, lands in Tribal grazing
allotments are excluded from critical habitat. We determined that
pygmy-owl conservation could be adequately ensured without designation
of the approximately 240 acres.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as part of
critical habitat. We cannot exclude areas from critical habitat if such
exclusion would result in the extinction of the species concerned.
Economic effects caused by listing the pygmy-owl as endangered and
by other statutes are the baseline upon which critical habitat is
imposed. The economic analysis must then examine the incremental
economic and conservation effects of the critical habitat addition.
Economic effects are measured as changes in national income, regional
jobs, and household income. An analysis of the economic effects of
pygmy-owl critical habitat designation was prepared (McKenney et al.
1999) and made available for public review (April 15-May 15, 1999; 64
FR 18597). The final analysis, which reviewed and incorporated public
comments, concluded that no economic impacts are expected from critical
habitat designation above and beyond that already imposed by listing
the pygmy-owl. The only possible economic effects of critical habitat
designation are on activities funded, authorized, or carried out by a
Federal agency. These activities would be subject to section 7
consultation if they may affect critical habitat. However, activities
that may affect critical habitat may also affect the species, and would
thus be subject to consultation regardless. Also, changes or mitigating
measures that might increase the cost of the project would only be
imposed as a result of critical habitat if the project adversely
modifies or destroys that critical habitat. We believe that any project
that would adversely modify or destroy critical habitat would also
jeopardize the continued existence of the species and that reasonable
and prudent alternatives to avoid jeopardizing the species would also
avoid adverse modification of critical habitat. Thus, no regulatory
burden or additional costs would accrue because of critical habitat
above and beyond that resulting from listing.
A copy of the economic analysis and description of the exclusion
process with supporting documents are included in our administrative
record and may be obtained by contacting our office (see ADDRESSES
section).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, we submitted this action
for review by the Office of Management and Budget. Because the economic
analysis identified no economic benefits from excluding any of the
proposed critical habitat areas, we made a determination to designate
all proposed critical habitat units. No inconsistencies with other
agencies' actions and/or effects on entitlements, grants, user fees,
loan programs, or the rights and obligations of their recipients, were
identified in the economic analysis. This rule does not raise novel
legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the economic analysis we determined that designation of critical
habitat will not have a significant effect on a substantial number of
small entities. As discussed in that document and in this final rule,
designation of critical habitat will not restrict any actions beyond
those already resulting from listing the pygmy-owl. We recognize that
some towns, counties, and private entities are considered small
entities in accordance with the Regulatory Flexibility Act, however,
they also are not affected by the designation of critical habitat
because no additional restrictions will result from this action.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
In the economic analysis we determined that designation of critical
habitat will not cause--(a) any effect on the economy of $100 million
or more; (b) any increases in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions in the economic analysis; or (c) any significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In the economic analysis we determined that no effects would occur
to small governments as a result of critical habitat designation.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications, and a takings implication assessment
is not required. This designation will not ``take'' private property
and will not alter the value of private property. Critical habitat
designation is only applicable to Federal lands and to private lands if
a Federal nexus exists.
Federalism
This rule will not affect the structure or role of States, and will
not have direct, substantial, or significant effects on States. As
previously stated, critical habitat is only applicable to Federal lands
and to non-Federal lands when a Federal nexus exists, and in the
economic analysis we determined that no economic impacts would result
from critical habitat designation.
[[Page 37435]]
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We have made every effort to
ensure that this final determination contains no drafting errors,
provides clear standards, simplifies procedures, reduces burden, and is
clearly written such that litigation risk is minimized.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.
National Environmental Policy Act
We have determined that EAs and EISs, as defined under the
authority of the National Environmental Policy Act of 1969 (NEPA), need
not be prepared in connection with regulations adopted pursuant to
section 4(a) of the Act. We published a notice outlining our reasons
for this determination in the Federal Register in October, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2: We understand that we must
relate to federally recognized Tribes on a Government-to-Government
basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act states
that ``Critical habitat shall not be designated in such areas an area
that may impact Tribal trust resources unless it is determined
essential to conserve a listed species. In designating critical
habitat, we shall evaluate and document the extent to which the
conservation needs of a listed species can be achieved by limiting the
designation to other lands.'' Pygmy-owl critical habitat does not
contain any Tribal lands nor lands that we have identified as impacting
Tribal trust resources.
References Cited
A complete list of all references cited in this final rule is
available upon request from the Arizona Ecological Services Field
Office (see ADDRESSES section).
Authors
The primary author of this notice is Mike Wrigley (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
For the reasons given in the preamble, we amend 50 CFR part 17 as
set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h) revise the entry for ``Pygmy-owl, cactus
ferruginous'' under ``BIRDS'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific Name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birds
* * * * * * *
Pygmy-owl, cactus ferruginous...... Glaucidium brasilianum U.S.A. (AZ, TX), AZ E 600 Sec. 17.95 NA
cactorum. Mexico. (b)
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend section 17.95(b) by adding critical habitat for the cactus
ferruginous pygmy-owl (Glaucidium brasilianum cactorum) in the same
alphabetical order as this species occurs in 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum)
1. Critical habitat units are depicted for Pima, Cochise, Pinal,
and Maricopa counties, Arizona, on the maps below. The maps are for
reference only; the areas in critical habitat are legally described
below.
2. Within these areas, the primary constituent elements are
those habitat components that are essential for the primary
biological needs of foraging, nesting, rearing of young, roosting,
sheltering, and dispersal or the capacity to develop those habitat
components. The primary constituent elements are found in areas that
support, or have the potential to support, riparian forests,
riverbottom woodlands, xeroriparian forests, and semidesert
grassland, and the Arizona upland subdivision of Sonoran
desertscrub. Within these vegetation communities, specific plant
associations that are essential for the primary biological needs of
the cactus ferruginous pygmy-owl include, but are not limited to,
the following vegetation: cottonwood, willow, ash, mesquite, palo
verde, ironwood, hackberry, saguaro cactus, and/or organ pipe
cactus.
3. Critical habitat does not include non-Federal lands covered
by a legally operative incidental take permit for the cactus
ferruginous pygmy-owl issued under section 10(a) of the Act, nor
Indian Tribal grazing allotments.
Unit 1. Pima County, Arizona. From BLM map Sells, Ariz. 1979,
Atascosa Mts., Ariz. 1979.
Gila and Salt Principal Meridian, Arizona: T. 17 S., R. 8 E.,
secs. 1 to 3, E\1/2\ sec. 4, E\1/2\ sec. 9, secs. 10 to 16, 21 to
36; T. 17 S., R. 9 E., that portion of sec. 1 lying west of St. Hwy
286, secs. 2 to 10, those portions of secs. 11, 12, and 14 lying
west of St. Hwy 286, secs. 15 to 22, those portions of secs. 23 and
26 lying west of St. Hwy 286, secs. 27 to 34, that portion of sec.
35 lying west of St. Hwy 286; T. 18 S., R 7 E., sec. 1, those
portions of secs. 2 and 11 lying east of Papago Indian Reservation
Bdy, sec. 12, those portions of secs. 13, 14, 24, 25, and 36 lying
east of Papago Indian Reservation Bdy; T. 18 S., R. 8 E., secs. 1 to
36; T. 18 S., R. 9 E., that portion of sec. 2 lying west of Hwy 286,
secs. 3 to 10, those portions of secs. 11 and 14 lying west of St.
Hwy 286, secs. 15 to 22, those portions of secs. 23, 26, 27 and 28
lying
[[Page 37436]]
west and north of St. Hwy 286, secs. 29 to 31, those portions of
secs. 32 and 33 lying west and north of St. Hwy 286; T. 19 S., R. 7
E., those portions of secs. 1, 12, 13, 14, and 23 lying east of
Papago Indian Reservation Bdy, secs. 24 and 25, those portions of
secs. 26 and 34 lying east of Papago Indian Reservation Bdy, secs.
35, 36; T. 19 S., R. 8 E., secs. 1 to 12, N\1/2\ sec. 13, secs. 14
to 21, W\1/2\ sec. 22, S\1/2\ sec. 26, S\1/2\ & NW\1/4\ sec. 27,
secs. 28 to 35; T. 19 S., R. 9 E., sec. 6; T. 20 S., R. 7 E., secs.
1, 2, those portions of secs. 3, 9, and 10 lying east of Papago
Indian Reservation Bdy, secs. 11 to 15, those portions of secs. 16,
17, and 21 lying east of Papago Indian Reservation Bdy, secs. 22 to
27, those portions of secs. 28, 29, 32, and 33 lying east of Papago
Indian Reservation Bdy, secs. 34 to 36; T. 20 S., R. 8 E., secs. 2
to 11, 14 to 23, 27 to 33; T. 21 S., R. 7 E., secs. 1 to 4, those
portions of secs. 5 and 8 lying east of Papago Indian Reservation
Bdy, secs. 9 to 16, those portions of secs. 17 and 20 lying east of
Papago Indian Reservation Bdy, secs. 21 to 27, those portions of
secs 28 and 29 lying east of Papago Indian Reservation Bdy, that
portion of sec. 33 lying north of Papago Indian Reservation Bdy,
secs. 34 to 36; T. 21 S., R. 8 E., secs. 4 to 9; T. 22 S., R. 7 E.,
secs. 1 to 3, 10 to 15, 22 to 25; T. 22 S., R. 8 E., S\1/2\ SW,
SW\1/4\ SE\1/4\ sec. 18, W\1/2\ & W\1/2\ E\1/2\ sec. 19, that
portion of sec. 20 outside Buenos Aires NWR Bdy, secs. 29, 30.
Unit 2. Pima County, Arizona. From BLM map Silver Bell Mts.,
Ariz. 1977.
Gila and Salt Principal Meridian, Arizona: T. 13 S., R. 9 E.,
secs. 31 to 36; T. 13 S., R. 10 E., secs. 31 to 36; T. 13 S., R. 12
E., those portions of secs. 31 to 34 lying within Tucson Mountain
County Park; T. 14 S., R. 9 E., secs. 1 to 12; T. 14 S., R. 10 E.,
secs. 1 to 12; T. 14 S., R. 11 E., that portion of secs. 1 and 2
lying within the Tucson Mountain County Park, secs. 5 to 8, 10, 11,
those portions of secs. 12 and 13 lying within Tucson Mountain
County Park, secs. 14 and 15; T. 14 S., R. 12 E., those portions of
secs. 1 to 25, lying within Tucson Mountain County Park; T. 14 S. R.
13 E., those portions of secs. 7, 18, 19, 28, 29, and 30 lying
within Tucson Mountain County Park. (Note: Areas described for
Tucson Mountain County Park do not match the Silver Bell Mts., Ariz.
BLM map cited above. This description is based on more recent
information obtained from Pima County Public Works.)
Unit 3. Pima County, Arizona. From BLM map Silver Bell Mts.,
Ariz. 1977.
Gila and Salt Principal Meridian, Arizona: T. 12 S., R. 12 E.,
those portions of secs. 8 and 9 lying south and west of Interstate
10, secs. 17, 20, and 29.
Unit 4. Pima and Pinal Counties, Arizona. From BLM maps Casa
Grande, Ariz. 1979, Silver Bell Mts., Ariz. 1977.
Gila and Salt Principal Meridian, Arizona: T. 10 S., R. 11 E.,
secs. 1 to 36; T. 10 S., R. 12 E., secs. 4 to 9, 16 to 21, 28 to 33;
T. 11 S., R. 11 E., secs. 1 to 5, 9 to 15, secs. 23, 24; T. 11 S.,
R. 12 E., secs. 3 to 10, 14 to 30, N\1/2\ sec. 31, secs. 32 to 36;
T. 11 S., R. 13 E., secs. 19, 28 to 33; T. 12 S., R. 12 E., secs. 1
to 4, those portions of secs. 8 and 9 lying north and east of
Interstate 10, secs. 10 to 14, 23, 24, that portion of sec. 25 lying
north of W. Cortaro Farms Road, that portion of sec. 26 lying north
of W. Cortaro Farms Road and north and east of Interstate 10; T. 12
S., R. 13 E., secs. 4 to 9, 16 to 21, those portions of secs. 29 and
30 lying north of W. Cortaro Farms Road.
Unit 5a. Pinal County, Arizona. From BLM maps Mesa, Ariz. 1979,
Casa Grande, Ariz. 1979.
Gila and Salt Principal Meridian, Arizona: T. 5 S., R. 11 E.,
secs. 1 to 36; T. 6 S., R. 11 E., secs. 1 to 36; T. 7 S., R. 11 E.,
secs. 1 to 36; T. 8 S., R. 11 E., secs. 1 to 36; T. 9 S., R. 11 E.,
secs. 1 to 36.
Unit 5b. Pinal County, Arizona. From BLM maps Casa Grande, Ariz.
1979, Mammoth, Ariz. 1986.
Gila and Salt Principal Meridian, Arizona: T. 8 S., R. 15 E.,
secs. 1 to 36; T. 9 S., R. 12 E., secs. 1 to 36; T. 9 S., R. 13 E.,
secs. 1 to 36; T. 9 S., R. 14 E., secs. 1 to 31; T. 9 S., R. 15 E.,
secs. 1 to 12, 14 to 21, 28 to 30.
Unit 6. Cochise, Pima, and Pinal Counties, Arizona. From BLM
maps Mesa, Ariz. 1979, Globe, Ariz. 1986, Mammoth, Ariz. 1986, and
Tucson, Ariz. 1979.
Gila and Salt Principal Meridian, Arizona: T. 4 S., R. 9 E.,
those portions of secs. 1, 12, 13, and 24 lying east of U.S. Hwy 89;
T. 4 S., R. 10 E., secs. 1 to 5, that portion of sec. 6 lying east
of U.S. Hwy 89, secs. 7 to 24; T. 4 S., R. 11 E., secs. 7 to 36; T.
4 S., R. 12 E., secs. 1 to 12; T. 4 S., R. 13 E., that portion of
sec. 1 lying south and west of St. Hwy 177, secs. 2 to 12; T. 4 S.,
R. 14 E., those portions of secs. 5, 6, 7, 8, 16, and 17 lying south
and west of St. Hwy 177, secs. 18, 20, those portions of secs. 21,
22, 26, and 27, lying south and west of St. Hwy 177, secs. 28, 29,
33, and 34, that portion of sec. 35 lying south and west of St. Hwy
177; T. 5 S., R. 14 E., those portions of secs. 1 and 2 lying south
and west of St. Hwy 177, secs. 3, 11, 12; T. 5 S., R. 15 E., those
portions of secs. 6, 7, 8, 9, and 10 lying south and west of St. Hwy
177, that portion of sec. 14 lying south and west of the Pinal and
Gila Counties boundary (all within Pinal County), that portion of
sec. 15 lying south of St. Hwy 177 and west of the Pinal and Gila
Counties boundary (all within Pinal County), secs 16 to 22, that
portion of sec. 23 lying south and west of the Pinal and Gila
Counties boundary (all within Pinal County), that portion sec. 24
lying west of St. Hwy 77 and south of Pinal and Gila Counties
boundary (all within Pinal County), that portion of sec. 25 lying
south and west of St. Hwy 77 and north and east of San Manuel
Railroad, those portions of secs. 26 and 36 lying north and east of
San Manuel Railroad; T. 5 S., R. 16 E., those portions of secs. 30
and 31 lying south and west of St. Hwy 77; T. 6 S., R. 15 E., that
portion of sec. 1 lying north and east of San Manuel Railroad; T. 6
S., R. 16 E., that portion of sec. 5 lying south and west of St. Hwy
77, that portion of sec. 6 lying south and west of St. Hwy 77 and
north and east of San Manuel Railroad, that portion of sec. 7 lying
north and east of San Manuel Railroad, that portion sec. 8 lying
south and west of St. Hwy 77 and north and east of San Manuel
Railroad, those portions of secs. 9 and 16 lying south and west of
St. Hwy 77, those portions of secs. 17 and 20 lying east of San
Manuel Railroad, those portions of secs. 21 and 28 lying west of St.
Hwy 77, those portions of secs. 29 and 32 lying east of San Manuel
Railroad, that portion of sec. 33 lying west of St. Hwy 77; T. 7 S.,
R. 16 E., that portion of sec. 4 lying west of St. Hwy 77, secs. 5
to 8, those portions of secs. 9, 10, and 15 lying south and west of
St. Hwy 77, secs. 16 to 21, those portions of secs. 22, 23, 25, and
26 lying south and west of St. Hwy 77, secs. 27 to 35, that portion
of sec. 36 lying south and west of St. Hwy 77; T. 8 S., R. 16 E.,
that portion of sec. 1 lying south and west of St. Hwy 77, secs. 2
to 12, that portion of sec. 13 lying east of Camino Rio Road, secs.
15 to 22, 28 to 32; T. 8 S., R. 17 E., that portion of sec. 6 south
and west of St. Hwy 77, that portion of section 7 west of St. Hwy 77
and west of River Road, that portion of sec. 17 lying south and west
of River Road, that portion of sec. 18 south and west of River Road
and north and east of a line defined by Camino Rio Road where it
runs southeasterly from the west boundary of sec. 18 to its
intersection with St. Hwy 77 then southeasterly along St. Hwy 77 to
its intersection with Old State Hwy 77 then along Old State Hwy 77
to its intersection with the south boundary of sec. 18, that portion
of sec. 19 lying east of Old State Highway 77, those portions of
secs. 20, 28, and 29 lying south and west of River Road, that
portion of sec. 30 lying east of Old State Hwy 77 and St. Hwy 77,
sec. 32, that portion of sec. 33 lying west of River Road; T. 9 S.,
R. 16 E., secs. 5 to 8; T. 9 S., R. 17 E., those portions of secs. 3
and 4 lying west of River Road, sec. 9, those portions of secs. 10,
14, and 15 lying west of River Road, NE\1/4\ sec. 22, those portions
of secs. 23, 24, and 25 west of River Road; T. 9 S., R. 18 E., those
portions of secs. 30, 31 and 32 west of River Road; T. 10 S., R. 18
E., those portions of secs. 5, 6, 7, and 8 lying north and east of
Redington Road, sec. 9, those portions of secs. 16, 17, and 21 lying
north and east of Redington Road, secs. 22 and 27, those portions of
secs. 28 and 33 lying east of Redington Road, sec. 34; T. 11 S., R.
18 E., sec. 2, those portions of secs. 3 and 10 lying east of
Redington Road, secs. 11 and 14, those portions of secs. 15 and 22
lying east of Redington Road, secs. 23 and 26, that portion of sec.
27 lying east of Redington Road, that portion of sec. 34 lying east
of Redington Road and west of Cascabel Road, that portion of sec. 35
lying west of Cascabel Road; T. 12 S., R. 18 E., that portion of
sec. 2 west of Cascabel Road, that portion of sec. 3 lying east of
Redington Road, those portions of secs. 11, 12, and 13 lying west of
Cascabel Road; T. 12 S., R. 19 E., those portions of secs. 18, 19,
29, and 30 lying west of Cascabel Road, sec. 31, that portion of
sec. 32 and 33 lying west of Cascabel Road; T. 13 S., R. 19 E., that
portion of sec. 4 lying west of Cascabel Road, sec. 5, those
portions of secs. 9, 10, and 15 lying west of Cascabel Road.
Unit 7. Maricopa and Pinal Counties, Arizona. From BLM maps
Theodore Roosevelt Lake, Ariz. 1981 and Mesa, Ariz. 1979.
Gila and Salt Principal Meridian, Arizona: T. 3 N., R. 7 E.,
that portion of sec. 33 lying easterly of Salt River Indian
Reservation Bdy, secs. 34 to 36; T. 3 N., R. 8 E., secs. 31 to 33;
T. 2 N., R. 7 E., secs. 1 to 3, those portions of secs. 4, 5, 6 and
7 lying south and east of
[[Page 37437]]
Salt River Indian Reservation Bdy, secs. 8 to 17, that portion of
sec. 18 lying south and east Salt River Indian Reservation Bdy,
secs. 19 to 25, E \1/2\ sec. 26, E \1/2\ sec. 35, sec. 36; T. 2 N.,
R. 8 E., secs. 4 to 8, 18, 19, 25 to 36; T. 2 N., R. 9 E., secs. 30,
31; T. 1 N., R. 9 E., secs. 6, 7, 18 to 21, 27 to 30, 34 to 36; T. 1
N., R. 10 E., secs. 31, 32; T. 1 S., R. 9 E., secs. 1 to 3, 10 to
15, 22 to 26, those portions of secs. 27, 35 and 36 lying north and
east of U.S. Hwy 60/89; T. 1 S., R. 10 E., secs. 5 to 8, 17 to 20,
29 to 32; T. 2 S., R. 9 E., that portion of sec 1 lying north and
east of U.S. Hwy 60/89; T. 2 S., R. 10 E., secs. 1 to 5, those
portions of secs. 6, 7 and 8 lying north and east of U.S. Hwy 60/89,
secs. 9 to 16, that portion of sec. 17 lying north and east of U.S.
Hwy 60/89 and south and east of U.S. Hwy 89, that portion of sec. 20
lying east of U.S. Hwy 89, secs. 21 to 28, those portions of secs.
29 and 32 lying east of U.S. Hwy 89, secs. 33 to 36: T. 3 S., R. 10
E., secs. 1 to 4, those portions of secs. 5 and 8 lying east of U.S.
Hwy 89, secs. 9 to 16, those portions of secs. 17, 18, and 19 lying
east of U.S. Hwy 89, secs. 20 to 29, those portions of secs. 30 and
31 lying east of U.S. Hwy 89, secs. 32 to 36.
BILLING CODE 4310-55-P
[[Page 37438]]
[GRAPHIC] [TIFF OMITTED] TR12JY99.027
[[Page 37439]]
[GRAPHIC] [TIFF OMITTED] TR12JY99.028
[[Page 37440]]
[GRAPHIC] [TIFF OMITTED] TR12JY99.029
Dated: June 30, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-17404 Filed 7-6-99; 1:25 pm]
BILLING CODE 4310-55-C
