[Federal Register Volume 62, Number 140 (Tuesday, July 22, 1997)]
[Rules and Regulations]
[Pages 39129-39147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19209]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB97
Endangered and Threatened Wildlife and Plants; Final
Determination of Critical Habitat for the Southwestern Willow
Flycatcher
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) designates
critical habitat for the southwestern willow flycatcher (Empidonax
traillii extimus), a species federally listed as endangered under the
authority of the Endangered Species Act of 1973, as amended (Act). The
Fish and Wildlife Service has identified 18 critical habitat units
totaling 964 river kilometers (km) (599 river miles) in Arizona,
California, and New Mexico. As required by section 4 of the Act, the
Service considered economic and other relevant impacts prior to making
a final decision on the size and configuration of critical habitat.
EFFECTIVE DATE: August 21, 1997.
ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Arizona Ecological Services
Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021. The
complete file for this rule will be available for public inspection, by
appointment, during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. Sam F. Spiller, Field Supervisor,
Arizona Ecological Services Office, U.S. Fish and Wildlife Service, at
the above address (Telephone 602/640-2720).
SUPPLEMENTARY INFORMATION:
Background
Ecological Considerations
The southwestern willow flycatcher (Empidonax traillii extimus) is
a small passerine bird, approximately 15 centimeters (cm) (5.75 inches)
in length. It is one of four subspecies of the willow flycatcher
recognized in North America (Hubbard 1987, Unitt 1987, Browning 1993).
The southwestern willow flycatcher's breeding range includes southern
California, Arizona, New Mexico, western Texas, southwestern Colorado,
southern portions of Nevada and Utah, and extreme northwestern Mexico
(Hubbard 1987, Unitt 1987, Wilbur 1987). During the breeding season,
the species occurs in riparian habitats along rivers, streams, open
water, cienegas, marshy seeps, or saturated soil where dense growths of
willows (Salix sp.), Baccharis, arrowweed (Pluchea sp.), tamarisk
(Tamarix sp.) or other plants are present, sometimes with a scattered
overstory of cottonwood (Populus sp.) (Grinnell and Miller 1944,
Phillips 1948, Zimmerman 1970, Whitmore 1977, Hubbard 1987, Unitt 1987,
Whitfield 1990, Brown and Trosset 1989, Brown 1991, Sogge et al. 1997).
These riparian communities, which tend to be rare and widely separated,
provide nesting, foraging, and migratory habitat for the southwestern
willow flycatcher. Empidonax traillii extimus is an insectivore that
forages within and occasionally above dense riparian vegetation, taking
insects on the wing and gleaning them from foliage (Wheelock 1912, Bent
1960).
Empidonax traillii extimus nests in dense riparian vegetation
approximately 4-7 meters (m) (13-23 feet) tall, often with a high
percentage of canopy cover. Historically, E. t. extimus nested
primarily in willows, with a scattered overstory of cottonwood
(Grinnell and Miller 1944, Phillips 1948, Whitmore 1977, Unitt 1987,
Sogge et al. 1997). In addition to nesting in riparian woodland
vegetation consisting of willows, arrowweed, tamarisk ``or other
species'', southwestern willow flycatchers nest almost exclusively in
coast live oaks (Quercus agrifolia) on the Upper San Luis Rey River in
San Diego County, California, which may be defined as an oak ``riparian
woodland.'' Following modern changes in riparian plant communities in
the southwest, E. t. extimus still nests in willows where available but
is also known to nest in areas dominated by tamarisk and Russian olive
(Zimmerman 1970, Hubbard 1987, Brown 1988). Sedgewick and Knopf (1992)
found that sites selected as song perches by male willow flycatchers
exhibited higher variability in shrub size than did nest sites and
often included large central shrubs. Habitats not selected for either
nesting or singing were narrower riparian zones, with greater distances
between willow patches and individual willow plants.
Large scale losses of southwestern wetlands have occurred,
particularly the cottonwood-willow riparian habitat of the southwestern
willow flycatcher (Phillips et al. 1964, Johnson and Haight 1984,
Katibah 1984, Johnson et al. 1987, Unitt 1987, General Accounting
Office 1988, Dahl 1990, State of Arizona 1990). Changes in the riparian
plant community have reduced, degraded and eliminated nesting habitat
for the willow flycatcher, curtailing its
[[Page 39130]]
distribution and numbers (Serena 1982, Cannon and Knopf 1984, Taylor
and Littlefield 1986, Unitt 1987, Schlorff 1990). Habitat losses and
changes have occurred (and continue to occur) because of urban,
recreational and agricultural development, fires, water diversion and
impoundment, channelization, livestock grazing, and replacement of
native habitats by introduced plant species (see 58 FR 39495 and
Tibbitts et al. 1994 for detailed discussions of threats and impacts).
Brood parasitism by the brown-headed cowbird (Molothrus ater) is
another significant and widespread threat to the southwestern willow
flycatcher (Rowley 1930, Garret and Dunn 1981, Unitt 1987, Sogge 1995a
and 1995b, Whitfield and Strong 1995, Sferra et al. 1997). Although
some host species seem capable of simultaneously raising both cowbirds
and their own chicks, such is not the case with southwestern willow
flycatchers. Of all the nests monitored throughout the southwest
between 1988 and 1996, there are only two cases known where
southwestern willow flycatchers successfully fledged both flycatchers
and cowbirds. In all other cases, parasitism caused complete nest
failure or the successful rearing of only cowbird chicks (Brown 1988,
Whitfield 1990, Whitfield and Strong 1995, Sogge 1995a and 1995b,
Maynard 1995, Sferra et al. 1997).
In a review of historical and contemporary records of Empidonax
traillii extimus throughout its range, Unitt (1987) noted that the
species has ``declined precipitously * * *'' and that ``the population
is clearly much smaller now than 50 years ago.'' He believed the total
was ``well under'' 1000 pairs, more likely 500 (Unitt 1987). Nesting
groups monitored since that time have continued to decline (Whitfield
1990, Brown 1991, Sogge and Tibbitts 1992, Whitfield and Laymon,
unpubl. data). Since 1992, more than 800 historic and new locations
have been surveyed range wide to document the status of the
southwestern willow flycatcher (USFWS, unpubl. data). The current known
population of southwestern willow flycatchers is estimated at between
300 and 500 pairs (Sogge et al. 1997). This indicates a critical
population status, with more than 75 percent of the locations where
flycatchers are found having five or fewer territorial birds and up to
20 percent of the locations having single, unmated individuals. The
distribution of breeding groups is highly fragmented, with groups often
separated by considerable distances (e.g., approximately 88 kilometers
(km) (55 miles) straight-line distance between breeding flycatchers at
Roosevelt Lake, Gila County, Arizona, and the next closest breeding
groups known on either the San Pedro River (Pinal County) or Verde
River (Yavapai County). Additional survey effort, particularly in
southern California, may discover additional small breeding groups.
However, rangewide survey efforts have yielded positive results in
fewer than 10 percent of surveyed locations. Moreover, survey results
reveal a consistent pattern range wide; the southwestern willow
flycatcher population as a whole is comprised of extremely small,
widely-separated breeding groups or unmated flycatchers.
For a thorough discussion of the ecology and life history of the
southwestern willow flycatcher, see Sogge et al. (1997), the proposed
rule to list the southwestern willow flycatcher as endangered with
critical habitat (58 FR 39495) or the final rule listing the
southwestern willow flycatcher as endangered (60 FR 10694).
Previous Federal Actions
On January 25, 1992, a coalition of conservation organizations
petitioned the Service, requesting listing of Empidonax traillii
extimus as an endangered species, under the Act. The petitioners also
appealed for emergency listing, and designation of critical habitat. On
September 1, 1992, the Service published a finding that the petition
presented substantial information indicating that listing may be
warranted and requested public comments and biological data on the
species (57 FR 39664). On July 23, 1993, the Service published a
proposal to list E. t. extimus as endangered with critical habitat (58
FR 39495), and again requested public comments and biological data on
the species. The Service published a final rule to list E. t. extimus
as endangered on February 27, 1995 (60 FR 10694). The Service deferred
the designation of critical habitat for this endangered species until
July 23, 1995, pursuant to 16 U.S.C. Sec. 1533(b)(6)(C), citing issues
raised in public comments, new information, and the lack of the
economic information necessary to perform the required economic
analysis. The Service reopened the comment period on the proposal to
designate critical habitat. During and following the listing moratorium
and a series of rescissions of listing funds imposed by Congress from
April 1995 to April 1996, the Service took no action on the proposal to
designate critical habitat due to resource constraints. On March 20,
1997, the U.S. District Court of Arizona, in response to a suit by the
Southwest Center for Biological Diversity, ordered the Service to
designate critical habitat for the southwestern willow flycatcher
within 120 days. On July 3, 1997, the Court clarified that order,
noting that the 120-day timeframe was provided for the Service to make
a decision as to whether or not to designate critical habitat and not
to make a substantive determination of designation.
The Service has not previously designated critical habitat for the
flycatcher because, as discussed in detail below, critical habitat
designation provides little or no conservation benefit despite the
great cost to put it in place. The Service's conclusion in this regard
is reflected in its Listing Priority Guidance (61 FR 64475), under
which designation of critical habitat is accorded the lowest priority
among the Service's various listing activities. In accordance with the
Listing Priority Guidance, since the lifting of the moratorium the
Service has spent the scarce resources available to it for listing
activities on meeting other requirements of the Act that provide
significantly more conservation benefit. Nonetheless, the Service has
been ordered to make a final determination with regard to critical
habitat in an exceedingly short period of time. This final rule is
issued to comply with that order. The rule meets the technical
requirements of the Act; however, because of the unprecedented time
constraints resulting from the court order, the Service was not able to
provide the level of analysis and completeness that it has in the past
on such rules. The Service is designating critical habitat for the
southwestern willow flycatcher as it was proposed in 1993, with the
deletion of some minor areas that were found to have been proposed in
error because they have little or no potential for flycatcher habitat
(see Issue 4 in Summary of Comments and Recommendations). The Service
concedes that there may be additional areas that could be excluded
because they no longer require special management considerations or
protection due to ongoing management agreements, such as that with
respect to Camp Pendleton. Similarly, the Service has been unable to
consider additional areas for inclusion in this rule in response to the
comments received.
Even promulgating this rule stripped down to its essentials has
placed an enormous burden on the Service. The Service had no option but
to disrupt significant work at the Field Office, Regional, and National
levels in order to provide the resources to generate this
[[Page 39131]]
final rule. The Service intends to further articulate its views
concerning critical habitat, and to provide the public with an
opportunity to comment on those views, in the development of a specific
critical habitat policy in the very near future. However, the below
analysis is provided to elaborate on why the Service has placed
critical habitat designation among the lowest priorities in the Listing
Priority Guidance, and therefore why critical habitat for the
flycatcher was not designated prior to this time.
Critical Habitat
Designation of critical habitat for endangered or threatened
species has been among the most costly and controversial classes of
administrative actions undertaken by the Service in administering the
Act. Over 20 years of experience in designating critical habitat and
applying it as a tool in conserving species leads the Service to
seriously question its utility and the value it provides in comparison
to the monetary, administrative, and other resources it absorbs.
Although the Service is, in this case, designating critical habitat
pursuant to a Court order that requires the Service to make a final
determination, the Service believes that critical habitat is not an
efficient or effective means of securing the conservation of species.
An analysis supporting this conclusion is presented below.
The Designation Process
When the Service lists a species as threatened or endangered, the
Act requires that it specify, ``to the maximum extent prudent and
determinable,'' the species' critical habitat. If critical habitat is
not considered determinable at the time a final rule is adopted to list
a species, it must be designated ``to the maximum extent prudent''
within 1 additional year. Thus the ultimate test in determining whether
or not critical habitat is designated for a species is one of prudence.
The basis for the Court order directing the present designation was the
Service's failure to either designate critical habitat or to find that
its designation would not be prudent within 1 year of the listing of
the southwestern willow flycatcher as an endangered species.
The Act's definitions of ``critical habitat'' and ``conservation''
are central to any interpretation of critical habitat's attributes and
effects. Critical habitat is defined in Section 3(5)(A) of the Act as
``(i) the specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) that may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species.'' The term ``conservation,'' as defined in
section 3(3) of the Act, means ``. . . to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary.'' A designation
of critical habitat thus implies not only specific knowledge of the
habitat needs of a species, but also an idea of what would be needed in
the way of habitat protection and management to bring about the
species' recovery.
The Act also requires a consideration of economic and other
consequences as part of the designation process, with the option of
excluding areas from designation if the benefits of such exclusion
outweigh the benefits of designation, and if exclusion would not result
in the extinction of the species. A good understanding of the effects
of designation, both in general and for particular cases, is required
to carry out this analytic requirement and to provide a basis for the
consideration of potential exclusions.
At the time a species is listed, there is generally no detailed
understanding of the management measures that will be required for its
recovery, so that designation at this time can only crudely reflect its
conservation needs. Meanwhile, the required analysis is necessarily
highly speculative in that it must incorporate assumptions regarding
future economic activity that may be difficult to characterize, and it
is aimed at the increment of effect on these activities attributable to
designation over and above those consequent to the species' listing.
Finally, the economic balancing that is the object of the analysis is
only possible to the extent that these two sets of effects can be
differentiated, and the limit on this balancing (i.e., that exclusion
may not cause extinction) is not meaningful if the failure to designate
critical habitat cannot plausibly have this effect.
In determining the extent to which designation of critical habitat
is prudent, Congress directed the Service to consider whether the
designation would be of benefit to the species concerned. In recent
years, the Service has foregone designating critical habitat for most
species it has listed on the basis that it would not provide any net
benefit to their conservation.
Designation by regulation
Critical habitats are designated in the Code of Federal Regulations
and can be altered only through a rulemaking process that commonly
requires over a year from start to finish. In fact, revision is a
sufficiently complex undertaking that the Service has never revised a
critical habitat designation, in spite of it being possible to do so.
The range and habitat use of a species do not necessarily remain
unchanged over time or change so slowly as to be readily tracked by
costly and time-consuming regulatory amendments.
The Consequences of Designation
Section 7 of the Act requires that Federal agencies refrain from
contributing to the destruction or adverse modification of critical
habitat. This requirement is in addition to the prohibition against
jeopardizing the continued existence of a listed species, and it is the
only mandatory legal consequence of a critical habitat designation. An
understanding of the interplay of the ``jeopardy'' and ``adverse
modification'' standards is necessary to the proper evaluation of the
prudence of designation as well as the conduct of consultation under
section 7. Implementing regulations (50 CFR part 402) define
``jeopardize the continued existence of'' and ``destruction or adverse
modification of'' in virtually identical terms. Jeopardize the
continued existence of means to engage in an action ``that reasonably
would be expected * * * to reduce appreciably the likelihood of both
the survival and recovery of a listed species.'' Destruction or adverse
modification means an ``alteration that appreciably diminishes the
value of critical habitat for both the survival and recovery of a
listed species.'' Common to both definitions is an appreciable
detrimental effect on both survival and recovery of a listed species,
in the case of critical habitat by reducing the value of the habitat so
designated. Thus, actions satisfying the standard for adverse
modification are nearly always found to also jeopardize the species
concerned, and the existence of a critical habitat designation does not
materially affect the outcome of consultation. This is in contrast to
the public perception that the adverse modification standard sets a
lower threshold for violation of section 7 than that for jeopardy. In
fact, biological opinions which conclude that a Federal agency action
is likely to adversely
[[Page 39132]]
modify critical habitat but not to jeopardize the species for which it
is designated are extremely rare historically, and none have been
issued in recent years.
Scope of Analysis
Given the difficulty of separating the independent incremental
effects of designation of critical habitat from those associated with
the listing of a species, it should not be surprising that the approach
to economic analysis is problematic. A recent analysis for the
designation of nearly 4 million acres of critical habitat for the
marbled murrelet concluded, in part, that the designation ``is not
likely to restrict the activities of any federal agency'' and that it
``will not cause these agencies (the Forest Service and Bureau of Land
Management) to manage federal lands in a manner that will have
immediate, direct impacts on the flow of goods and services from these
lands.'' Critics have complained that economic analyses of critical
habitat designations greatly underestimate the effects of the ESA on
the economy, or alternatively that environmental benefits are generally
given cursory coverage. Both points of view have elements of validity.
On the one hand, the effects of the ESA on society stem overwhelmingly
from the protection afforded by the listing of species, but the tenuous
effects of critical habitat designation are the only ones subject to
the requirement of economic analysis. On the other hand, the object of
the analysis is an examination of areas for possible exclusion from
critical habitat, leading to a focus on possible deleterious economic
effects that might provide grounds for exclusion, rather than the
benefits society derives from the operation of the ESA.
The Cost of Designation
In a recent declaration filed in a Federal District Court, the
Service's Assistant Director estimated that economic analyses alone for
the designation of critical habitat for the marbled murrelet (quoted
above) and Mexican spotted owl cost in excess of $100,000 each. The
total cost of other recent designations, as those for the desert
tortoise and Colorado River fishes, have been estimated at
approximately $1,000,000 each. The Service currently has on hand
information sufficient to propose nearly 200 candidate species for
listing, and several hundred other species are known to require status
surveys to determine whether they qualify. The resources required to
designate a critical habitat typically are ten times what would be
required to list a backlogged candidate species. On conservation
grounds, the Service cannot justify devoting resources to a critical
habitat designation that would otherwise be available to afford basic
protection to ten or more candidate species. Critical habitat
designations have too little effect on the way land and water is
managed for the conservation of species to justify the drain they
represent on Federal resources.
Public Perception of Designation
Controversy over critical habitat designation arises in substantial
part from public misunderstanding of the effects designation has on
potential resource uses. The common public perception is that critical
habitat is an inviolate preserve within which human activities are
excluded entirely or drastically curtailed. It is not difficult to
understand this misperception given the common-sense meaning of
``critical habitat.'' In fact, the designation of critical habitat may
provide some benefits to a species by identifying areas important to
the species' conservation, particularly until a recovery plan is
adopted, including habitat that is not presently occupied and that may
require restoration efforts to support recovery. However, these
benefits are minor, apply only where there is Federal agency
involvement, and consume considerable funds that could be spent
elsewhere to much greater benefit.
Identification of Critical Habitat for the Southwestern Willow
Flycatcher
Empidonax traillii extimus is endangered by extensive loss of
nesting habitat and is now extirpated across much of its former
breeding range. A neotropical migratory bird, E. t. extimus is present
in its breeding habitat from late April until August or September. It
then migrates to wintering grounds in Mexico, Central America, and
perhaps northern South America (Gorski 1969, McCabe 1991). Little is
known about threats in its wintering grounds. However, even during the
nonbreeding season when the species is not present, nesting habitat and
especially potentially recoverable nesting habitat remain vulnerable.
Conserving and enhancing the constituent elements of current and
potential nesting habitat is necessary to facilitate recovery of the
species. The Service may designate as critical habitat areas outside
the geographical area presently occupied by a species when a
designation limited to its present range would be inadequate to ensure
the conservation of the species (50 CFR 424.12(e)). Such a situation
exists for the southwestern willow flycatcher, for which recovery of
the physical and biological features and constituent elements of
nesting habitat and space for population growth are needed to ensure
the conservation and recovery of the species.
Primary Constituent Elements
The Service is required to base critical habitat determinations on
the best available scientific information (50 CFR 424.12). In
determining what areas to designate as critical habitat, the Service
considers those physical and biological features that are essential to
the conservation of the species and that may require special management
considerations or protection. Such requirements include but are not
limited to the following: (1) Space for individual and population
growth; (2) food, water, air, light, minerals, or other nutritional or
physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, rearing of offspring, germination, or seed
dispersal; and (5) habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species. The Service is proposing to designate as
critical habitat areas which provide or with rehabilitation will
provide the above five physical and biological features and primary
constituent elements.
For all areas of critical habitat designated here, these physical
and biological features and primary constituent elements are provided
or will be provided by dense thickets of riparian shrubs and trees
(native and exotic species). This vegetation, by definition, occurs
near rivers, streams, open water, cienegas, marshy seeps, or saturated
soil. Constituent elements of critical habitat include the riparian
ecosystem within the 100-year floodplain, including areas where dense
riparian vegetation is not present, but may become established in the
future. The species composition of vegetation ranges from nearly
monotypic stands (i.e., single species) to stands with multiple species
(see Sogge et al. 1997). Vegetation structure ranges from simple,
single stratum patches as low as 3 meters (9 feet) in height and
lacking a distinct overstory to complex patches with multiple strata
and canopies nearing 18 meters (60 feet) in height. Vegetation patches
may be uniformly dense throughout, or occur as a mosaic of dense
thickets interspersed with small openings, bare soil, open water, or
shorter/sparser vegetation. Riparian patches used by breeding
flycatchers vary in size and shape, and may be relatively dense, linear
contiguous
[[Page 39133]]
stands or irregularly-shaped mosaics of dense vegetation with open
areas. The size of vegetation patches or habitat mosaics used by
southwestern willow flycatchers varies considerably and ranges from as
small as 0.8 hectares (2 acres) to several hundred hectares. However,
narrow linear riparian patches only one to two trees deep that have no
potential (absent limiting factors) to increase in depth are not
considered breeding habitat, although they may be used by southwestern
willow flycatchers during migration.
A total of approximately 964 km (599 miles) of stream and river are
being designated as critical habitat. The areas described were chosen
for critical habitat designation because they contain the remaining
known southwestern willow flycatcher nesting sites, and/or formerly
supported nesting southwestern willow flycatchers, and/or have the
potential to support nesting southwestern willow flycatchers. All areas
contain or with restoration will contain suitable nesting habitat in a
patchy, discontinuous distribution. This distribution is partially the
result of natural regeneration patterns of riparian vegetation (e.g.
cottonwood-willow). The distribution of these habitat patches is
expected to shift over time. Because of this spatial and temporal
distribution of habitat patches, it is important that the entirety of
the proposed river reaches be considered critical habitat. All areas
contain some unoccupied habitat or former (degraded) habitat, needed to
recover ecosystem integrity and support larger southwestern willow
flycatcher numbers during the species' recovery. A number of separate,
protected, healthy populations of southwestern willow flycatchers are
needed to protect the species from extinction by functioning as
population sources (Pulliam 1988). Protection of this proposed critical
habitat should ensure sufficient quantity and quality of habitat to
stabilize and recover this species. The southwestern willow flycatcher
is already extirpated from a significant portion of its former range.
Critical habitat for the southwestern willow flycatcher will
include riparian areas within the 100-year floodplain along streams and
rivers in southern California, Arizona, and New Mexico (Figure 1).
Descriptions and maps of each area are located in this rule under
``Regulation Promulgation.''
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR22JY97.010
[[Page 39134]]
Available Conservation Measures
Because Empidonax traillii extimus is a listed species, the Act
provides conservation measures, including 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 authorizes recovery plans for all
listed species. The protection required of Federal agencies and the
prohibitions against taking and harm 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 being designated. Regulations implementing this interagency
cooperation provision of the Act are codified in 50 CFR part 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
formal consultation with the Service.
The U.S. Marine Corps and Service have worked together to develop a
comprehensive, ecosystem-oriented wildlife conservation management plan
covering all riparian and coastal wetland habitat areas on the base at
Camp Pendleton. This effort culminated in a mutually agreed upon
conservation strategy and implementation program that was endorsed by
the Secretary of the Interior and Service at a signing ceremony with
the Commanding General in October 1995. The conservation program has
contributed substantially to the protection and recovery of the least
Bell's vireo, southwestern willow flycatcher, and other listed species
(i.e., arroyo toad, tidewater goby, California least tern, and western
snowy plover) found in riparian and coastal wetland habitats along the
Santa Margarita River and Pacific Ocean. Indeed, the Department of
Defense awarded Camp Pendleton the Department's Natural Resources Award
for 1996 largely because of the successful implementation of the
riparian and coastal wetland conservation program. The Service does not
intend the designation of critical habitat to result in the imposition
of any additional restrictions for actions taken at Camp Pendleton
which are consistent with the conservation measures outlined under the
management plan. Thus, for example, if the Marine Corps needed a permit
under the Clean Water Act for an activity which was consistent with the
conservation management plan, the Service would not view such activity
as adversely modifying or destroying critical habitat for the willow
flycatcher.
On other Federal lands, various ongoing activities within riparian
areas may benefit the flycatcher. The Forest Service and Bureau of Land
Management have focused attention on modifying livestock grazing
practices in recent years, particularly as they affect riparian
ecosystems. The Bureau of Land Management's San Pedro National Riparian
Conservation Area in Arizona has excluded livestock for 10 years which
has resulted in significant restoration of riparian habitats and
increased populations of bird species associated with riparian habitat,
including the willow flycatcher. The Forest Service, in cooperation
with others, is monitoring the southwestern willow flycatcher
population on the San Luis Rey River on Forest Service lands, and has
an on-going brown-headed cowbird trapping program on the San Luis Rey
River and other streams within the Cleveland National Forest. As
mitigation for other projects impacting riparian habitats, the Bureau
of Reclamation is engaged in a cowbird management program and riparian
habitat restoration projects in several areas in the range of Empidonax
traillii extimus, including some historical nesting locations. Riparian
habitat rehabilitation is also underway at several National Wildlife
Refuges in the breeding range of E. t. extimus, which are managed by
the Service. Grand Canyon National Park has instituted a seasonal
recreation closure at the remaining site with nesting willow
flycatchers in the Grand Canyon.
In addition to conservation on Federal lands, in 1991, the State of
California established the Natural Communities Conservation Planning
(NCCP) Program to address conservation needs of natural ecosystems
throughout the State. The Multiple Species Conservation Program (MSCP)
in southwestern San Diego County is one of the first subregional plans
under the NCCP to be developed. The MSCP planning area consists of 12
jurisdictions and several water districts, each of which will develop
subarea plans to implement the MSCP within their boundaries. The City
of San Diego has approved the MSCP and finalized their subarea plan.
The remaining jurisdictions and the Otay Water District are expected to
finalize their subarea plans within the near future.
The southwestern willow flycatcher is considered a covered species
under the MSCP based on the proposed level of conservation. The MSCP
will preserve over 9,000 acres or 75 percent of the remaining riparian
habitats within the planning boundary. Impacts to riparian areas
outside of the preserve will be avoided, minimized, and mitigated under
local guidelines and ordinances, and existing State and Federal wetland
regulations. Thus, no net loss of acreage of riparian habitat is
proposed within the MSCP, and no additional restrictions are
anticipated as a result of critical habitat designation.
All of the designated critical habitat for the southwestern willow
flycatcher along the San Dieguito, San Diego, and Tijuana Rivers will
be conserved and managed within the MSCP preserve system. The MSCP
assures permittees that compliance with the Federal policy of ``no net
loss'' of wetland functions and values, the U.S. Environmental
Protection Agency's section 404(b)(1) guidelines, and the requirements
of the MSCP and local subarea plan will constitute the full extent of
mitigation measures directed specifically at the incidental take of
covered species recommended by the Service pursuant to the Act and the
National Environmental Policy Act. In addition, the Service has agreed
that, if the subarea plans for each jurisdiction under the MSCP are
properly functioning, the Service will not require that permittees or
third party beneficiaries commit additional land, additional land
restrictions, or additional financial compensation beyond that provided
in each implementing agreement should critical habitat for a covered
species be designated.
The approved NCCP/Habitat Conservation Plan for the Central and
Coastal Subregions of Orange County, California, provides benefits to
the southwestern willow flycatcher. The plan establishes an
approximately 37,300-acre nature preserve and requires surveys for the
southwestern willow flycatcher to ensure that occupied habitat with
potentially significant long-term conservation value will be conserved.
The adaptive management program for the preserve includes monitoring,
cowbird control, and habitat enhancement measures for the flycatcher.
Again, the Service anticipates that no additional restrictions will
apply to activities undertaken in accordance with the
[[Page 39135]]
approved Orange County NCCP plan as a result of this critical habitat
designation.
The Audubon Society manages one of the largest remaining flycatcher
populations in California, and The Nature Conservancy (TNC) manages
several areas with high recovery potential. TNC maintains a cowbird
trapping program in Orange County that provides indirect benefits to
potential nesting habitat for the southwestern willow flycatcher.
In addition to public and private lands, critical habitat occurs on
land belonging to the Yavapai-Apache Tribe in Arizona and on land
belonging to the Pala Mission Tribe in California. Pursuant to Tribal
sovereignty and the Service's associated responsibilities, as well as
the recent Secretarial Order for American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities and the Endangered Species Act,
the Service has consulted with both tribes prior to completion of this
rule in order to ensure that tribal cultural values, and reserved
hunting, fishing, gathering and other rights were considered in this
designation. The Service will continue to work cooperatively with the
tribes and remain available to assist in development of conservation
plans for the area that meet both the intent of the Act and Tribal
needs.
It is the policy of the Service to identify to the maximum extent
practicable at the time of listing those activities that would or would
not constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of the listing on
proposed or on-going activities. These activities are listed in the
final rule listing the southwestern willow flycatcher (60 FR 10694).
Likewise, section 4(b)(8) requires, for any proposed or final
regulation that designates critical habitat, a brief description and
evaluation of those activities (public or private) that may adversely
modify such habitat or may be affected by such designation. Such
activities may include:
(1) Removing, thinning or destroying riparian vegetation.
Activities which remove, thin, or destroy riparian vegetation, by
mechanical, chemical (herbicides or burning), or biological (grazing)
means reduce constituent elements for southwestern willow flycatcher
sheltering, feeding, breeding, and migrating.
(2) Surface water diversion or impoundment, groundwater pumping, or
any other activity which may alter the quantity or quality of surface
or subsurface water flow. Activities which alter the quantity or
quality of surface or subsurface water flow may affect riparian
vegetation, food availability, or the general suitability of the site
for nesting or migrating.
(3) Destruction/alteration of the species' habitat by discharge of
fill material, draining, ditching, tiling, pond construction, and
stream channelization (i.e., due to roads, construction of bridges,
impoundments, discharge pipes, stormwater detention basins, etc.).
(4) Overstocking of livestock. Excessive use of riparian areas and
uplands for livestock grazing may affect the volume and composition of
riparian vegetation, may physically disturb nests, may alter floodplain
dynamics such that regeneration of riparian habitat is impaired or
precluded, and may facilitate brood parasitism by brown-headed
cowbirds.
(5) Development of recreational facilities and off-road vehicle
operation. Activities which facilitate recreational activities and off-
road vehicle use may affect riparian vegetation, result in compaction
of soils degrading areas where riparian vegetation is established or
would become established, alter floodplain dynamics such that riparian
regeneration is impaired or precluded, promote fires in riparian
habitats, reduce space for individual and population growth, and
inhibit normal behavior.
In general, activities that do not remove or degrade constituent
elements of habitat for Empidonax traillii extimus are not likely to
destroy or adversely modify critical habitat. Each proposed action will
be examined pursuant to section 7 of the Act in relation to its site-
specific impacts.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of Empidonax traillii extimus. Federal activities outside
of critical habitat are still subject to review under section 7 if they
may affect E. t. extimus. Prohibitions of Section 9 also continue to
apply both inside and outside of designated critical habitat.
Summary of Comments and Recommendations
In the July 23, 1993, proposed rule to list the Empidonax traillii
extimus as endangered with critical habitat (58 FR 39495), all
interested parties were requested to submit comments or information
that might bear on the listing of or designation of critical habitat
for the southwestern willow flycatcher. The comment period was
originally scheduled to close October 21, 1993, but was extended to
November 30, 1993. Appropriate State agencies, Federal agencies, county
governments, scientific organizations, and other interested parties
were contacted and requested to comment. Newspaper notices inviting
public comment were published in the following newspapers: In
California, the Los Angeles Times, L.A. Watts Times, Kern Valley Sun,
and San Diego Union-Tribune; in Arizona, the Arizona Daily Sun, Arizona
Republic, Tucson Daily Citizen, White Mountain Independent, and Arizona
Daily Star; in New Mexico, the Albuquerque Journal, Albuquerque
Tribune, Santa Fe New Mexican, Carlsbad Current-Argus, Silver City
Daily Press; in Nevada, the Las Vegas Sun; in Colorado, the Durango
Herald; in Utah, the Daily Spectrum; and in Texas, the El Paso Times.
The inclusive dates of publications were August 31 through September
13, 1993, for the initial comment period and October 28 through
November 5, 1993, for the public hearings and extension of public
comment period.
The Service held six public hearings. Three of these were held in
anticipation of interest in the proposed rule, and three additional
were held in response to requests from the public. A notice of the
hearing dates and locations was published in the Federal Register on
October 18, 1993 (58 FR 53702). Approximately 424 people attended the
hearings. Approximately 17 people attended the hearing in Tucson, AZ;
27 in Flagstaff, AZ; 10 in Las Cruces, NM; 12 in Albuquerque, NM; 350
in Lake Isabella, CA; and 8 in San Diego, CA. Transcripts of these
hearings are available for inspection (see ADDRESSES section).
A second public comment period was held from February 27, 1995, to
April 28, 1995, during which comments were solicited on proposed
critical habitat. A total of 3,240 written and oral responses was
received during the two public comment periods. All comments received
were reviewed for substantive issues and new data regarding critical
habitat and the southwestern willow flycatcher. Comments of a similar
nature are grouped into a number of general issues. Ten general issues
were identified relating specifically to proposed critical habitat.
These are addressed in the following summary.
Issue 1: Development of conservation agreements would be more
effective in providing a net benefit to the southwestern willow
flycatcher than designation of critical habitat, and existing
agreements make designation of critical habitat unnecessary in some
areas.
[[Page 39136]]
Service Response: The Service agrees that implementation of
comprehensive conservation agreements could effectively protect and
enhance both occupied and unoccupied habitat for the southwestern
willow flycatcher, and also have the potential to provide for recovery
of the species. Toward this end, the U.S. Marine Corps and the State of
California have both worked with the Service to develop ecosystem-
oriented conservation plans that the Service believes will be highly
effective in providing for the conservation needs of the southwestern
willow flycatcher at Camp Pendleton and in portions of San Diego and
Orange counties. Unfortunately, due to imposed time constraints and
lack of funding, at this time the Service is not able to undertake
further analysis with regard to critical habitat designation although
such analysis might ultimately negate the need for designation in areas
such as these.
Issue 2: Designation of critical habitat would offer no additional
protection above listing; critical habitat can only be designated for
areas on which essential biological and physical features are currently
found.
Service Response: The designation of critical habitat may provide
some benefits to the southwestern willow flycatcher by identifying for
the public areas important to the species' conservation and
highlighting areas important to the species until a recovery plan is
adopted, including habitat that is not presently occupied by
flycatchers and that may require restoration efforts to support
recovery. The areas included in this designation are believed to be
justified as providing biological and physical features essential to
the flycatcher's conservation. Nevertheless, the Service generally
agrees that the protection afforded by the designation of critical
habitat is marginal in comparison to the protective measures provided
by the species' listing. Regardless of the perceived benefit of this
designation, however, the Service is required to comply with the Court
order requiring a final determination on designation within a specified
time limit.
Issue 3: Critical habitat would not improve the status of the
southwestern willow flycatcher because cowbirds, rather than habitat,
are the limiting factor.
Service Response: The Service recognizes that cowbird parasitism is
a major threat to the viability of the southwestern willow flycatcher.
That threat is exacerbated by the small size and highly fragmented
nature of extant riparian habitats. Habitat suitability for cowbirds,
and thus cowbird abundance and rates of parasitism, appear to decrease
as habitat size and extent increases, ostensibly because patches with
higher ratios of interior to edge habitat are more difficult for
cowbirds to penetrate. In addition, larger habitat patches should have
more host species. Thus, increasing the size and extent of riparian
habitat on a local scale should reduce the rate of cowbird parasitism
on southwestern willow flycatchers by decreasing habitat suitability
for the cowbird and by increasing the number of non-flycatcher host
species that can be parasitized. In many of the small riparian stands
inhabited by flycatchers the number of cowbirds may outnumber host
species, including the flycatcher. In those areas cowbird management
programs will be needed to increase flycatcher reproductive success in
the short-term. The Service believes, however, that over the long-term
the most effective strategy to reduce the rate and extent of cowbird
parasitism is to reduce riparian habitat fragmentation on a regional
scale and to vastly increase the size and extent of riparian habitat on
a local scale.
Issue 4: The proposed critical habitat includes areas with little
potential for appropriate habitat and omits areas with known flycatcher
breeding groups or areas with high potential for occupancy by
flycatchers.
Service Response: The Service received many comments from Federal,
State, and private entities recommending deletions and additions to
proposed critical habitat. In response to public comments, some areas
that were included in the proposed rule were found to be proposed in
error because they have little or no potential for flycatcher habitat,
and were omitted from the final designation. These include:
Approximately 5 miles of shoreline at Lake Isabella downstream of the
South Fork Wildlife Area, removed due to a lack of potential for
habitat to develop along the lakeshore (Kern County, CA); Peck's Lake,
removed due to a lack of potential for habitat to develop around
shoreline (Yavapai County, AZ); approximately 5 miles along the upper
portion of Wet Beaver Creek, removed due to lack of potential for
suitable habitat to develop (Yavapai County, AZ); approximately 14
miles along the upper portion of West Clear Creek, removed due to lack
of potential for suitable habitat to develop (Yavapai County, AZ);
approximately 20 miles along the Rio Grande, removed due to lack of
potential for suitable habitat to develop (Bernalillo County, NM).
The Service did not consider omissions for other reasons or
additions to the critical habitat proposed in 1993 because imposed time
constraints and lack of resources made this impracticable. This does,
not, however, preclude the Service from considering further omissions
and additions to critical habitat for this species at some time in the
future as resources allow.
Issue 5: Existing regulatory mechanisms and agency management plans
targeted at listed species provide adequate protection.
Service Response: The Service agrees that some existing regulatory
mechanisms and management plans provide conservation benefits to the
flycatcher. As mentioned in Issue 1, the U.S. Marine Corps and the
State of California have both worked with the Service to develop
ecosystem-oriented conservation plans that the Service believes will be
highly effective in providing for the conservation needs of the
southwestern willow flycatcher at Camp Pendleton and in portions of San
Diego and Orange counties. Although designation of critical habitat
should not impose any additional restrictions on actions consistent
with the management agreements in these areas now or in the future,
they do not cover sufficient area to provide adequate protection for
the species as a whole. Furthermore, the Service is obliged to comply
with a Court order to designate critical habitat for the flycatcher.
Provisions of section 404 of the Clean Water Act do not
specifically protect the southwestern willow flycatcher or its habitat,
but do provide some protection to the aquatic and riparian ecosystems
of which it is a part. Section 404 also provides for mitigation for
destruction of these habitats, although even temporary destruction and
subsequent replacement of important riparian habitat may adversely
affect the southwestern willow flycatcher. Regardless of the possible
conservation benefits of the Clean Water Act, however, this designation
is required by Court order.
Issue 6: The Service is required to comply with the National
Environmental Policy Act in designating critical habitat.
Service Response: An Environmental Assessment (EA) and a draft
Finding of No Significant Impact (FONSI) have been prepared for this
rule in accordance with 40 CFR 1501.3 (see following section entitled
National Environmental Policy Act). The EA and FONSI are available upon
request from the Field Supervisor, Arizona Ecological Services Field
Office (see ADDRESSES above).
[[Page 39137]]
Issue 7: Designation of critical habitat would result in loss of
revenues that local communities derive from use of public lands;
critical habitat will adversely affect State, Municipal, and private
lands.
Service Response: Critical habitat only applies to Federal actions
on Federal lands or Federally-permitted actions on private lands. The
economic analysis provided in this final rule demonstrates that there
will be no adverse economic effects above the effects that would result
from the listing of the species.
Issue 8: Riparian habitats are in a constant state of change,
making any boundaries established under critical habitat also subject
to change; lateral boundaries of critical habitat do not meet
regulatory requirements because they are difficult to interpret and
change seasonally; the constituent elements of critical habitat for the
southwestern willow flycatcher have not been adequately described.
Service Response: The upstream/downstream boundaries established
with this final rule, to a limited extent, incorporated the dynamic
nature of riparian habitats that commentors referred to and that is
discussed under issue number two. The Service agrees, however, that the
lateral boundaries of critical habitat are inadequate and do not
incorporate the dynamic nature of riparian systems. For example,
changes in the distribution of riparian habitats in response to natural
flooding events, or changes in stream flow due to droughts,
impoundments, etc., sometimes leave suitable habitat more than 100
meters from surface water. To alleviate this inadequacy, the lateral
boundaries of critical habitat were established by the 100-year
floodplain, which is delineated on maps available at county offices and
the Federal Emergency Management Agency.
Issue 9: The Service is focusing management efforts for the
southwestern willow flycatcher too narrowly on factors affecting the
species only on its breeding grounds.
Service Response: The Service agrees that factors affecting the
southwestern willow flycatcher during the non-breeding season could be
playing a significant role in the status of this species. To that end
the Service has supported work currently funded by the Bureau of
Reclamation to identify the distribution of the southwestern willow
flycatcher during the non-breeding season. If research demonstrates
adverse effects outside of the United States, the Secretary has the
authority under section 8 of the Act to provide assistance to foreign
governments in developing management programs necessary for the
conservation of the southwestern willow flycatcher. This opportunity,
however, does not eliminate, reduce, or change the obligations of
Federal agencies under sections 7 and 9 of the Act, nor does it change
the obligations of citizens under section 9 of the Act.
Issue 10: The goal of the critical habitat designation is
protection of riparian habitat, not protection of the flycatcher.
Service Response: Section 2(b) of the Act states, ``(t)he purposes
of this Act are to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered species and
threatened species, and to take such steps as may be appropriate to
achieve the purposes of the treaties and conventions set forth in
subsection (a) of this section.'' The purpose established in section
2(b) of the Act explicitly recognizes the critical role of ecosystems
and, therefore, habitat, in the protection of endangered species. In so
far as the southwestern willow flycatcher is a neotropical migratory
bird species that is dependent solely on riparian areas to carry out
the portion of its life cycle devoted to breeding, the Service
acknowledges and supports the concept of protecting habitat in order to
conserve the southwestern willow flycatcher. However, the goal of the
critical habitat designation for the southwestern willow flycatcher is
to protect areas essential to the conservation of this species. Other
riparian areas that were not found to be essential to the conservation
of the flycatcher have been omitted from this final rule.
Paperwork Reduction Act
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
Economic Effects
Section 4(b)(2) of the Act requires the Service to consider
economic and other impacts of designating a particular area as critical
habitat. The Secretary may exclude areas from critical habitat if the
benefits of exclusion outweigh the benefits of including the area in
critical habitat, unless failure to designate a specific area would
result in extinction of the species. The economic analysis assists in
making that determination by examining how the designation may affect
Federal lands, and any non-Federal activity with some Federal
involvement. Activities on private or State-owned lands that do not
involve Federal permits, funding or other Federal actions are not
restricted by the designation of critical habitat.
Economic effects caused by the listing of the flycatcher as
endangered and by other statutes are the baseline upon which critical
habitat is imposed. The analysis examines the incremental economic and
conservation effects of the critical habitat addition. Economic effects
are measured as changes in National income, and regional jobs and
household income.
Fourteen counties in three States are affected by the designation
of critical habitat: Cochise, Pima, Pinal, Yavapai, Gila, Coconino, and
Apache counties in Arizona; Kern, Riverside, San Bernardino, and San
Diego counties in California; and Catron, Grant, and Hidalgo counties
in New Mexico. In total, nearly 964 river km (599 miles) are being
designated as critical for the southwestern willow flycatcher. The
percent of total length of rivers in each State affected by critical
habitat designation is relatively small: 12.4 percent for Arizona; 0.5
percent for California; and 6.6 percent for New Mexico. A high
percentage of public access to rivers and streams exists in all three
States.
By focusing attention on a certain area, designating critical
habitat may result in minor economic benefits provided directly by the
species and indirectly by its habitat, including aesthetic or scenic
beauty, biodiversity, ecosystem and passive use (existence) values.
Quantitative or monetary values for such benefits are not now possible
due to data limitations.
The Forest Service, Bureau of Land Management, Bureau of
Reclamation, Marine Corps, and Army Corps of Engineers manage areas of
proposed critical habitat for the flycatcher. The Corps of Engineers
and other Federal agencies that may be involved with funding or permits
for projects in the critical habitat areas may also be affected.
Because the Service believes that virtually all ``adverse
modification'' calls would also result in ``jeopardy'' calls under
section 7 of the Act, designation of critical habitat for the
flycatcher is not expected to result in any incremental restrictions on
agency activities. Critical habitat designation will, therefore, result
in no additional protection for the flycatcher nor any additional
economic effects beyond those that may have been caused by listing and
by other statutes. Additionally, all previously completed biological
opinions would not require reinitiation to reconsider any critical
habitat designated in this rulemaking.
[[Page 39138]]
If no Federal agency is involved in management, funding, or by
other means of non-Federal areas with critical habitat for the
flycatcher, they are not subject to the section 7 consultation process
for critical habitat.
Economic effects caused by the listing of the flycatcher as
endangered and by other statutes are the baseline upon which critical
habitat is imposed. The analysis examines the incremental economic and
conservation effects of the critical habitat addition. Economic effects
are measured as changes in national income, and regional jobs and
household income. Of the 14 counties where critical habitat is
proposed, 9 would qualify as small businesses. However, because
critical habitat designation is not expected to cause additional
habitat restrictions in any biological opinions issued under the Act,
there are no incremental economic effects attributable to the
designation. A copy of the economic analysis and description of the
exclusion process with supporting documents are included in the
Service's administrative record and may be obtained by contacting the
Service (see ADDRESSES section).
The Service reviewed the proposal to designate critical habitat for
the flycatcher and the assessment of associated benefits and costs.
Because the economic analysis identified no economic benefits from
excluding any of the areas, the Service has made a determination to
designate all of the 18 areas as critical habitat for the southwestern
willow flycatcher.
In addition, the Service has determined that this rulemaking would
not have a significant effect on a substantial number of small entities
in the area, such as businesses, organizations and governmental
jurisdictions, under the Regulatory Flexibility Act of 1980 (5 U.S.C.
601 et seq.). This rulemaking was reviewed under Executive Order 12866.
Unfunded Mandates
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities.
Civil Justice Reform
The Department has determined that these final regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988.
National Environmental Policy Act Compliance
An Environmental Assessment (EA) and a draft Finding of No
Significant Impact (FONSI) have been prepared for the final rule to
designate critical habitat for the southwestern willow flycatcher
(Empidonax traillii extimus), in accordance with 40 CFR 1501.3. The EA
and FONSI are available upon request from the Field Supervisor, Arizona
Ecological Services Field Office (see ADDRESSES above).
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Field Supervisor, Arizona Ecological
Services Field Office (see ADDRESSES above).
Author: The primary author of this final rule is Sam Spiller,
Arizona Ecological Services Office (see ADDRESSES above).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations is amended 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.
Sec. 17.11 [Amended]
2. Section 17.11 (h) is amended by revising the ``Critical
habitat'' entry for ``Flycatcher, southwestern willow,'' under Birds,
to read ``17.95(b)'.
3. Section 17.95(b) is amended by adding critical habitat for the
Southwestern willow flycatcher (Empidonax traillii extimus), in the
same alphabetical order as this species occurs in Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
[[Page 39139]]
Southwestern Willow Flycatcher (Empidonax traillii extimus)
California: Areas of land and water as follows:
1. Santa Ana River, Riverside and San Bernardino Counties: from
Rio Road (T2S, R5W, no surveyed section but at 34 deg. 59' 00''
North, 117 deg. 25' 15'' West) downstream to Prado Flood Control
Basin Dam (T3S, R7W, Section 20). Approximately 25 km (16 miles).
The boundaries include areas within the 100-year floodplain where
thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR22JY97.011
[[Page 39140]]
2. Santa Margarita River, San Diego County: from the unnamed
trail at T8S, R3W, Section 34) downstream to northbound Interstate 5
(T11S, R5W, Section 19). Approximately 33 km (20 miles). The
boundaries include areas within the 100-year floodplain where
thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
3. San Luis Rey River, San Diego County: from Mission Road (T9S,
R2W, Section 27) downstream to northbound Interstate 5 (T11S, R5W,
Section 22). Approximately 39 km (24 miles). The boundaries include
areas within the 100-year floodplain where thickets of riparian
trees and shrubs occur or may become established as a result of
natural floodplain processes or rehabilitation.
4. San Diegito River, San Diego County: from southbound
Interstate 15 (T13S, R2W, no section surveyed, but at 33 deg. 3'
45'' North, 117 deg. 4' 00'' West) downstream to northbound
Interstate 5 (T14S, R4W, Section 12). Approximately 24 km (15
miles). The boundaries include areas within the 100-year floodplain
where thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
[GRAPHIC] [TIFF OMITTED] TR22JY97.012
[[Page 39141]]
5. San Diego River, San Diego County: from Carlton Hills
Boulevard (T15S, R1W, no section surveyed, but at 32 deg. 50' 45''
North, 117 deg. 59' 30'' West) downstream to the Second San Diego
Aqueduct T15S, R2W, no section surveyed, but at 32 deg. 49' 30''
North, 117 deg. 3' 45'' West). Approximately 8 km (5.5 miles). The
boundaries include areas within the 100-year floodplain where
thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
6. Tijuana River, San Diego County: from Larsen Field (T19S,
R2W, Section 1) downstream to the windmill at T19S, R2W, Section 4.
Approximately 5.5 km (3.3 miles). The boundaries include areas
within the 100-year floodplain where thickets of riparian trees and
shrubs occur or may become established as a result of natural
floodplain processes or rehabilitation.
[GRAPHIC] [TIFF OMITTED] TR22JY97.013
[[Page 39142]]
7. South Fork of the Kern River, Kern County: from the
confluence of Canebrake Creek (T25S, R36E, Section 30) downstream to
a line running north-south between Lyme Dyke and Lime Point
encompassing the South Fork Wildlife Area at the eastern end of Lake
Isabella (T26S, R34E, Sections 13 and 14). Approximately 26 km (16
miles). The boundaries include areas within the 100-year floodplain
where thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
[GRAPHIC] [TIFF OMITTED] TR22JY97.014
Arizona: Areas of land and water as follows:
1. San Pedro River, Cochise County: from the Hereford Bridge
(T23S, R22E, Section 9), downstream to eastbound Interstate 10
bridge at Benson (T17S R20E, Section 11). Approximately 87 km (54
miles). The boundaries include areas within the 100-year floodplain
where thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
2. San Pedro River, Cochise, Pima and Pinal Counties: from the
Gaging Station near Aguaja Canyon (T12S, R18E, Section 19),
downstream to the confluence with the Gila River (T5S, R15E, Section
23). Approximately 106 km (66 miles). The boundaries include areas
within the 100-year floodplain where thickets of riparian trees and
shrubs occur or may become established as a result of natural
floodplain processes or rehabilitation.
[GRAPHIC] [TIFF OMITTED] TR22JY97.015
[[Page 39143]]
3. Verde River, Yavapai and Gila Counties: from Sob Canyon
(T17N, R3E, Section 29) to its inflow into Horseshoe Reservoir (T8N,
R6E, Section 15), including Tavasci Marsh and Ister Flat.
Approximately 145 km (90 miles). The boundaries include areas within
the 100-year floodplain where thickets of riparian trees and shrubs
occur or may become established as a result of natural floodplain
processes or rehabilitation.
4. Wet Beaver Creek, Yavapai County: from the gauging station
upstream of the Beaver Creek Ranger Station (T15N, R6E, Section 24),
downstream to the confluence of Beaver Creek and the Verde River
(T14N, R5E, Section 30). Approximately 32 km (20 miles). The
boundaries include areas within the 100-year floodplain where
thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
5. West Clear Creek, Yavapai County: from the section line
dividing sections 18 and 17 in T13N, R6E downstream to the
confluence with the Verde River (T13N, R5E, Section 17).
Approximately 14 km (9 miles). The boundaries include areas within
the 100-year floodplain where thickets of riparian trees and shrubs
occur or may become established as a result of natural floodplain
processes or rehabilitation.
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6. Colorado River, Coconino County: from river mile 39 (T35N,
R5E, Section 16) downstream to river mile 71.5 (T31N, R5E Section
8). (River mile 0 = Lee's Ferry). Approximately 52 km (32 miles).
The boundaries include areas within the 100-year floodplain where
thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
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7. Little Colorado River, and the West, East, and South Forks of
the Little Colorado River, Apache County: from the diversion ditch
at T8N, R28E, Section 16, upstream to Forest Road 113 on the West
Fork (T7N, R27E, Section 33), upstream to Forest Road 113 on the
East Fork (T6N, R27E, Section 10), and upstream to Joe Baca Draw on
the South Fork (T8N, R28E, Section 34). Approximately 48 km (30
miles). The boundaries include areas within the 100-year floodplain
where thickets of riparian trees and shrubs occur or may become
established as a result of natural floodplain processes or
rehabilitation.
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New Mexico: Areas of land and water as follows:
1. Gila River and the East and West Forks of the Gila River,
Catron and Grant Counties: from El Rincon on the Gila River (T13S,
R14W, S36) upstream to Hell's Hole Canyon on the West Fork of the
Gila River T12S, R15W, S4), and upstream to the confluence of Taylor
Creek and Beaver Creek on the East Fork of the Gila River (T11S,
R12W, S17). Approximately 63 km (39 miles). The boundaries include
areas within the 100-year floodplain where thickets of riparian
trees and shrubs occur or may become established as a result of
natural floodplain processes or rehabilitation.
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2. Gila River, Grant and Hidalgo Counties: from the confluence
of Hidden Pasture Canyon (T14S, R16W, Section 14) downstream to the
confluence of Steeple Rock Canyon (T18S, R21W, Section 33).
Approximately 90 km (56 miles). The boundaries include areas within
the 100-year floodplain where thickets of riparian trees and shrubs
occur or may become established as a result of natural floodplain
processes or rehabilitation.
[GRAPHIC] [TIFF OMITTED] TR22JY97.020
3. San Francisco River, Catron County: from the confluence of
Trail Canyon (T6S, R20W, Section 4) downstream to San Francisco Hot
Springs, near the confluence with Box Canyon (T12S, R20W, Section
23). Approximately 105 km (65 miles). The boundaries include areas
within the 100-year floodplain where thickets of riparian trees and
shrubs occur or may become established as a result of natural
floodplain processes or rehabilitation.
4. Tularosa River and Apache Creek, Catron County: from the
confluence of the Tularosa and San Francisco Rivers (T7S, R19W,
Section 23) upstream, to the source of the Tularosa River near the
continental divide (T4S, R15W, Section 33), and upstream on Apache
Creek to the confluence with Whiskey Creek (T4S, R18W, Section 25).
Approximately 60 km (37 miles). The boundaries include areas within
the 100-year floodplain where thickets of riparian trees and shrubs
occur or may become established as a result of natural floodplain
processes or rehabilitation.
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Dated: July 16, 1997.
Joseph E. Doddridge,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-19209 Filed 7-21-97; 8:45 am]
BILLING CODE 4310-55-C
