Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southwestern Willow Flycatcher (Empidonax traillii extimus, 60886-61009 [05-20144]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 201 (Wednesday, October 19, 2005)]
[Rules and Regulations]
[Pages 60886-61009]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20144]



[[Page 60885]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Southwestern Willow Flycatcher (Empidonax traillii 
extimus); Final Rule

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / 
Rules and Regulations

[[Page 60886]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT88


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Southwestern Willow Flycatcher (Empidonax 
traillii extimus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the southwestern willow flycatcher 
(Empidonax traillii extimus) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 48,896 hectares (ha) 
(120,824 acres (ac)) or 1,186 kilometers (km) (737 miles (mi)) fall 
within the boundaries of the critical habitat designation. The critical 
habitat is located in Apache, Cochise, Gila, Graham, Greenlee, 
Maricopa, Mohave, Pinal, Pima, and Yavapai counties in Arizona (AZ), 
Kern, Santa Barbara, San Bernardino, and San Diego counties in southern 
California (CA), Clark County in southeastern Nevada (NV), Grant, 
Hidalgo, Mora, Rio Arriba, Soccoro, Taos, and Valencia counties in New 
Mexico (NM), and Washington County in Southwestern Utah (UT).

DATES: This rule is effective November 18, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the AZ Ecological Services Office, U.S. Fish and Wildlife Service, 2321 
West Royal Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210). 
The final rule, final environmental analysis, final economic analysis, 
and maps are available via the Internet at https://www.fws.gov/
arizonaes.

FOR FURTHER INFORMATION CONTACT: For information about Santa Barbara 
County in CA, contact Diane K. Noda, Field Supervisor, Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA, 93003 
(telephone 805/644-1766; facsimile 805/644-3958). For information about 
San Bernardino or San Diego Counties in CA, contact Jim Bartel, Field 
Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92011 (telephone 760/431-9440; facsimile 760/431-9624). 
For information about Kern County in CA, contact Wayne White, Field 
Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room 
W-2605, Sacramento, CA 95825 (telephone 916/414-6600; facsimile 916/
414-6713). For information about Grant, Hidalgo, Mora, Rio Arriba, 
Soccoro, Taos, or Valencia Counties in NM, contact Susan MacMullin, 
Field Supervisor, NM Fish and Wildlife Service Office, 2105 Osuna Road 
NE, Albuquerque, NM 87113 (telephone 505/346-2525; facsimile 505/346-
2542). For information about Clark County in NV, contact Cynthia 
Martinez, Field Supervisor, Las Vegas Fish and Wildlife Service Office, 
4701 North Torrey Pines Drive, Las Vegas, NV 89130 (telephone 702/515-
5230; facsimile 702/515-5231. For information about Washington County 
in UT, contact Henry Maddux, Field Supervisor, Salt Lake City Fish and 
Wildlife Service Office, 2369 West Orton Circle, Suite 50, West Valley 
City, UT 84119 (telephone 801/975-3330; facsimile 801/975-3331). For 
information about Apache, Cochise, Gila, Graham, Greenlee, Maricopa, 
Mohave, Pinal, Pima, or Yavapai Counties in AZ, contact Steve Spangle, 
Field Supervisor, AZ Fish and Wildlife Service Office, 2321 West Royal 
Palm, Suite 103, Phoenix, AZ 85021 (telephone 602/242-0210; facsimile 
602/242-2513).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 466 species or 37 percent 
of the 1,268 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,268 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United State 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically

[[Page 60887]]

imperiled species, and final listing determinations on existing 
proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects, the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy Act (NEPA). None of these costs result in any 
benefit to the species that is not already afforded by the protections 
of the Act enumerated earlier, and they directly reduce the funds 
available for direct and tangible conservation actions.

Background

    Background information on the southwestern willow flycatcher can be 
found in our proposal of critical habitat for the southwestern willow 
flycatcher, published in the Federal Register on October 12, 2004 (69 
FR 60706); the Southwestern Willow Flycatcher Recovery Plan (USFWS 
2002); our previous designation of critical habitat for this species, 
published on July 22, 1997 (62 FR 39129), and August 20, 1997 (62 FR 
44228); and the final rule listing this bird as endangered (February 
27, 1995; 60 FR 10694). That information is incorporated by reference 
into this final rule. This rule becomes effective on the date listed 
under DATES at the beginning of this document, and replaces the July 
22, 1997, critical habitat designation for this species that was set 
aside pursuant to a court order on May 11, 2001.

Previous Federal Actions

    Previous Federal actions for the southwestern willow flycatcher can 
be found in our proposal of critical habitat for the southwestern 
willow flycatcher published on October 12, 2004 (69 FR 60706). That 
information is incorporated by reference into this final rule.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the southwestern willow flycatcher 
in the proposed rule published on October 12, 2004 (69 FR 60706). The 
comment period was extended on December 13, 2004 (69 FR 72161), and on 
March 31, 2005 (70 FR 16474), resulting in the comment period being 
continuously open until May 31, 2005. The comment period was re-opened 
once more from July 7 to July 18, 2005 (70 FR 39227). We contacted the 
appropriate Federal, State, and local agencies, Tribes, scientific 
organizations, elected officials, and other interested parties and 
invited them to comment on the proposed rule. We contacted these groups 
by letter, electronic mail, and/or post card at the time of publication 
of the proposed rule; at each extension of the comment period; when we 
announced the availability of the draft economic analysis, draft 
environmental assessment, and location of public hearings (70 FR 
21988); and during re-opening of the comment period (70 FR 39227). 
Following publication of each Federal Register notice, we widely 
distributed news releases and posted them on the Internet. We also sent 
two newsletter updates to these groups during the rulemaking process to 
update them on the status of the proposal and associated documents.
    In addition, we invited public comment on the proposal through the 
publication of legal notices in 14 regional newspapers announcing 8 
public hearings, 8 public information meetings, and the availability of 
the draft economic analysis and draft environmental assessment. These 
legal notices were published in the Arizona Republic, Silver City Daily 
Press, Santa Fe New Mexican, Grand Junction Sentinel, The Spectrum (St 
George, UT), Las Vegas Review Journal, Kern Valley Sun, The Bakersfield 
Californian, Riverside Press-Enterprise, San Bernardino Sun, San Diego 
Union Tribune, Albuquerque Journal, Albuquerque Tribune, and Valley 
Courier (Alamosa, CO). We published legal ads prior to NEPA scoping 
meetings and also when we announced the documents' availability and the 
public hearings.
    We held public hearings and NEPA informational open houses at 
Escondido and Chino, CA (May 2-3, 2005); Las Vegas, NV, and Lake 
Isabella, CA (May 9-10, 2005); and Mesa, AZ, Silver City, NM, 
Albuquerque, NM, and Alamosa, CO (May 16-19, 2005). We also contacted 
and sent press releases to news media in Arizona, New Mexico, Southern 
California, Southern Nevada, Southern Utah and Southern Colorado. 
Additional public information meetings were held in Camp Verde, AZ 
(February 17, 2005--sponsored by the Verde Watershed Association); 
Albuquerque, NM (May 18, 2005--sponsored by Northern NM Pueblos), 
Bishop, CA (May 24, 2005--sponsored by Los Angeles Department of Water 
and Power), and Safford, AZ (July 7, 2005--sponsored by Graham County). 
All comments and new information received during the open comment 
period have been incorporated into this final rule as appropriate.
    We received a total of 534 pieces of correspondence (e-mails, 
letters, and faxes) during the public comment periods. Of the 534 
comment letters, 237 were received from individuals, 164 from 
government agencies, 31 from 21 different tribes, 62 from 
organizations, and 40 from businesses.
    We received comments from each State represented in the proposed 
designation. We received 260 comments letters from AZ, 72 comment 
letters from CA, 64 from NM, 40 from CO, 8 from NV, and 5 from UT. A 
total of 85 were received from outside of these States or areas where 
critical habitat was proposed for designation. Comments from each piece 
of correspondence were identified, grouped by issue, and reviewed.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from at least three 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the subspecies occurs, and/or familiarity with 
the principles of conservation biology. Of the seven individuals 
contacted, three responded. The peer reviewers that submitted comments 
generally supported the proposal and provided us with comments, which 
are included in the summary below and incorporated into the final rule, 
as appropriate. We received comments from the peer reviewers during the 
comment period on our proposed rule.

Peer Review Comments

    (1) Comment: Peer reviewers commented that we made good use of the 
current data, published and gray literature, expert opinion, and the 
Recovery Plan (USFWS 2002).
    Our Response: We believe we have considered and applied to this 
designation the best available scientific

[[Page 60888]]

and commercial information regarding the southwestern willow 
flycatcher.
    (2) Comment: One peer reviewer commented that while we described in 
detail the dynamic aspects of flycatcher habitat, that dynamic 
component is not reflected in the primary constituent elements (PCEs). 
Limiting critical habitat to only where vegetation currently exists 
undermines the dynamic component of its habitat.
    Our Response: As we have described in the proposed rule and this 
final rule, the dynamic aspects of flycatcher habitat are an important 
component of its long-term suitability for nesting and the overall 
quality and presence of riparian vegetation. Because flycatchers 
commonly place nests in the dense riparian vegetation in early 
successional growth, recycling of habitat from natural disturbances 
(i.e., flooding) is necessary to promote dense growth. Germination and 
growth of riparian vegetation is essential. As a consequence of river 
dynamics and proximity to water, the location and/or condition of its 
habitat can change from one season to the next due to drought, 
flooding, or simple growth of vegetation. Our PCEs focused on the end 
result of all the components that culminate in the development of 
flycatcher habitat. We described those components (e.g., broad 
floodplain, surface water, fine sediments, hydrologic regime, channel-
floodplain connectivity, elevated groundwater, etc.) in detail in the 
supporting text for the PCEs (69 FR 60712-60715). For example, we 
described in the Sites for Germination and Seed Dispersal section, the 
importance of appropriate floodplain conditions for the development, 
abundance, distribution, maintenance, and germination of flycatcher 
habitat, including features such as elevated groundwater, and fine/
moist soils for seed germination and insect production.
    As the peer reviewer mentioned, we described in great detail the 
dynamic aspects of flycatcher habitat location and growth in the 
proposed rule. However, we did not reflect the essential aspect of 
vegetation germination and growth (i.e., succession) that should 
accompany these PCEs. In order to more accurately reflect our proposal 
and the PCEs for the southwestern willow flycatcher, we have added a 
``successional'' component to the PCEs. The Act requires that Federal 
action agencies consider and consult on actions that affect the PCEs. 
Thus, projects that impede the regeneration and/or growth of riparian 
vegetation, depending on the scope of the project, could result in an 
adverse affect to riparian habitat, thus requiring consultation under 
section 7 of the Act.
    (3) Comment: One peer reviewer commented, with respect to the PCEs, 
that flycatcher habitat is more than dense vegetation. Southwestern 
willow flycatchers require a mosaic of riparian vegetation in a variety 
of developmental (i.e., successional) stages.
    Our Response: We agree. Southwestern willow flycatcher habitat 
consists of riparian vegetation in a variety of growth stages used for 
a variety of life-history needs, such as foraging, migration, and 
dispersal. An area with dense vegetation for nest placement is the most 
defined structure and is captured in PCEs 1b through 1e. By emphasizing 
shorter/sparser vegetation, with a mosaic not uniformly dense as small 
as 0.1 ha (.25 ac), PCEs 1a and 1e not only encompasses riparian plant 
species, but important habitats for breeding and foraging southwestern 
willow flycatchers, but also accounts for habitat for dispersing and 
migrating southwestern willow flycatchers. Also, on the basis of the 
issue raised in this comment, and the need for further clarification, 
we expanded PCE number 1 in this final rule to accurately reflect other 
life-history needs of the southwestern willow flycatcher (i.e., 
migration, dispersal, foraging, and shelter) fulfilled by riparian 
vegetation described in our proposed and final rules. However, we note 
that the methodology used for designating critical habitat for the 
southwestern willow flycatcher was based around nesting territories, 
and critical habitat is not being designated solely as an area that is 
used for migration, dispersal, foraging, and shelter.
    (4) Comment: Two peer reviewers remarked that extant, large 
populations of southwestern willow flycatchers are the most important 
assets for recovery. But excluding other locations with smaller 
populations may fall short in providing specific areas essential to the 
conservation of a listed species and that may require special 
management considerations. Management Units where recovery goals exist 
that are not represented in this designation were used as examples.
    Our Response: We recognize that there are locations and areas 
within the geographical area occupied by the southwestern willow 
flycatcher that were not proposed as critical habitat. We also agree 
with the comment that locations with smaller breeding populations or 
improvement of habitat conditions in areas with no breeding populations 
are important. However, section 3(5)(c) of the Act states that not all 
areas that can be occupied by a species should be designated as 
critical habitat unless the Secretary determines that all such areas 
are essential to the conservation of the species. As described below, 
the methodology used to define those areas that meet the definition of 
critical habitat focused on large populations that are in high 
connectivity to one another. Thus, while not all areas important for 
flycatcher recovery were proposed as critical habitat, we believe this 
designation defines those areas that are essential. We also acknowledge 
that while Recovery Plans formalize the recovery strategy for a 
species, they are not regulatory documents and that critical habitat 
can contribute to the overall recovery strategy for a listed species, 
but does not, by itself, achieve recovery plan goals.
    We encourage Federal and State agencies, Tribal governments, 
municipalities, private groups, and landowners to continue conducting 
surveys for flycatchers, protect and strive to improve smaller 
populations of flycatchers, and manage flycatcher habitat to create 
more populations in order to reach recovery. Because an area is not 
designated as critical habitat, does not mean it is not important for 
flycatcher recovery.
    (5) Comment: Two peer reviewers, who were involved with the 
development of the population viability analysis for the flycatcher, 
generally agreed that we interpreted the information correctly and 
appropriately identified 10 territories as a large population. One 
reviewer commented that, ``the recommendation in the Recovery Plan with 
regard to metapopulation stability was based on a population viability 
analysis conducted to answer questions about the relationship between 
individual flycatcher sites and their relative importance to overall 
flycatcher population size. The emphasis in the Recovery Plan of the 
importance of large populations to metapopulation stability is based on 
the positive relationship between population size and colonization 
potential. The relationship however is non-linear with increase in 
colonization potential diminishing for growth above 10 territories and 
virtually disappearing for growth above 25 territories. Given this, a 
biologically based break point of 10 territories to distinguish between 
large and small populations (sites) is appropriate.''
    Our Response: We recognize that the use of numbers and break points 
can be difficult, and also agree that we interpreted and used the data 
appropriately.

[[Page 60889]]

    (6) Comment: Peer reviewers generally agreed that our application 
of a 29 km (18 mi) radius, determined by the between-year movements 
recorded from banded southwestern willow flycatchers, was appropriate 
to delineate the limits of essential habitat and a high degree of 
connectivity between collections of smaller sites. However, two peer 
reviewers recognize that, given more time and with additional banding, 
survey, and monitoring efforts, it is likely that greater distance 
movements would be recorded more frequently.
    Our Response: We acknowledge the input provided by the reviewers 
with respect to longer movements, and note that the researchers have 
also provided this perspective. We understand that there are some 
between-year flycatcher movements that are very large (greater than 400 
km/248 miles) (E. Paxton, USGS, e-mail). However, these movements, 
while important to understand the connection of populations, are not 
common. Populations located hundreds of kilometers (miles) apart would 
not likely be considered ``highly'' connected. Conversely, sites only a 
kilometer or so apart could hardly be considered a different site. From 
1997 to 2003, Paxton (USGS, e-mail) reported 267 of 292 band recoveries 
occurred within 29 km (18 mi) of previous year's location. Our approach 
with respect to use of the results of banding data, was to determine 
highly connected southwestern willow flycatcher sites in order to 
identify essential habitat and define population connectivity. We 
believe our interpretation of the data for the purposes used here was 
appropriate.
    (7) Comment: Peer reviewers supported using the survey results from 
the years 1993 to 2002 to develop this designation of critical habitat 
for the southwestern willow flycatcher.
    Our Response: The information collected throughout the bird's range 
by the public and surveyors completing and submitting forms, and State 
and Federal agencies summarizing and cataloging these results in 
databases is invaluable. It is this quality and level of data that 
provides us the ability to develop the appropriate guidance documents 
and regulations pursuant to the Act that assist in the recovery of 
federally listed species such as the southwestern willow flycatcher.
    (8) Comment: Peer reviewers generally agreed that a lateral extent 
boundary tracking the extent of riparian vegetation within the 100-year 
floodplain was appropriate.
    Our Response: As one peer reviewer noted and we pointed out in the 
proposed rule, flycatcher habitat will change its location and 
condition within the 100-year floodplain due to events such as 
flooding, drought, and vegetation growth. Therefore, a lateral extent 
that reasonably captures the boundaries of that dynamic habitat 
movement, we believe, is appropriate.
    (9) Comment: One peer reviewer commented that rarely, flycatcher 
breeding habitat may persist outside of the 100-year floodplain in 
response to an artificial or man-made situation.
    Our Response: We are aware that infrequently, flycatcher breeding 
habitat and migratory habitat may occur in unusual locations outside 
the floodplain. There may also be more natural situations where 
flycatchers use upland habitat for nesting or foraging. However, we 
believe we captured essential areas across the bird's range through our 
methodology as described in this rule. We point out, as the reviewer 
did, that direct or indirect adverse affects to those areas are still 
subject to consultation under section 7 of the Act and those birds are 
still protected by the prohibitions set forth in section 9 of the Act.
    (10) Comment: One peer reviewer pointed out that there are 
significant anthropogenic influences throughout the bird's range that 
help support southwestern willow flycatcher habitat which we did not 
elaborate on in the proposed rule. Because of that, there may be some 
confusion over what constitutes a ``riparian developed'' area.
    Our Response: As the peer reviewer noted, irrigation canals and/or 
agricultural run-off, among other things, can help develop and support 
flycatcher habitat. The Recovery Plan (USFWS 2002: D-15) discussed that 
``* * * although some flycatcher breeding sites * * * are relatively 
un-impacted by human activities, most of the riparian vegetation 
patches in which the flycatcher breeds are supported by various types 
of supplemental water including agricultural and urban run-off, treated 
water outflow, irrigation or diversion ditches, reservoirs, and dam 
outflows. Although the water provided to these habitats might be 
considered ``artificial'', they are often essential for maintaining the 
habitat in a suitable condition for breeding flycatchers. However, 
reliance on such water sources for riparian vegetation persistence may 
be problematic because the availability (in quantity, timing, and 
quality) is often subject to dramatic changes based on human use 
patterns; there is little guarantee that the water will be available 
over the long-term.''
    Our PCEs focused on the culmination of factors such as floodplain 
shape, soils, water, and groundwater elevation that resulted in 
vegetation and insects appropriate for southwestern willow flycatchers 
when they are breeding (flycatchers that are documented attempting to 
nest; breeding flycatchers are always territorial flycatchers), 
migrating (flycatchers traveling north to breeding grounds and south to 
wintering grounds), dispersing (young-of-the-year and adult flycatchers 
typically following nesting and prior to migration), territorial 
(flycatchers during the breeding season that defend a territory; 
territorial flycatchers often nest, however un-paired territorial birds 
may not), and non-breeding (flycatchers during a portion of or for the 
entire nesting season that do not defend a territory or attempt to 
nest; these birds can also be referred to as floaters). Anthropogenic 
(i.e., man-made) factors can, if conditions are right, mimic some of 
those factors and help support southwestern willow flycatcher habitat. 
Also, these same types of activities, depending on the degree, 
location, and extent of their influence, can degrade southwestern 
willow flycatcher habitat. For example, dam operations can cause water 
to spread out over a wider area more consistently than there would be 
without the dam, potentially causing the development of riparian 
habitat over a large area. However, depending on how that dam is 
operated, flycatcher habitat may or may not be able to develop due to 
the amount and length of time water covers the floodplain/lake bottom. 
Additionally, some dams divert water from a river such that water 
rarely returns to the river channel, thereby removing the opportunities 
for habitat to develop below the dam.
    Our description of riparian developed areas in the lateral extent 
section refers to infrastructures that do not grow riparian vegetation 
such as agricultural fields, roads, houses, landscaped areas 
surrounding houses, cement pads, bridge footings, bases of utility 
structures, and existing gravel pits.
    Overall, we recognize the value of situations where man-made 
activities augment, maintain, enhance, or develop southwestern willow 
flycatcher habitat. We also recognize the potential difficulties that 
may arise with respect to a landowner's desire to change practices that 
could result in incidental take of flycatchers (regardless of a 
critical habitat designation). In these instances, we seek to work with 
landowners and/or agencies to provide Endangered Species Act coverage 
through section 7 consultations, a Safe Harbor Agreement, or Habitat 
Conservation Plan to ensure conservation of the flycatcher and to

[[Page 60890]]

provide regulatory authorization and unburden a landowner.

Comments Related to Previous Federal Actions, the Act, and Implementing 
Regulations

    (11) Comment: Many commented that our discussion concerning the 
value of designating critical habitat, and the procedural and resource 
difficulties involved should be addressed in a different forum, not in 
a critical habitat rule.
    Our Response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, other 
conservation mechanisms provide greater incentives and conservation 
benefits than does the designation of critical habitat. These other 
mechanisms include the section 4 recovery planning process, section 6 
funding to the States, section 7 consultations, the section 9 
protective prohibitions of unauthorized take, the section 10 incidental 
take permit process, and cooperative programs with private and public 
landholders and tribal nations.
    (12) Comment: Many commenters identified particular areas that they 
believed should not be designated because critical habitat will 
unnecessarily burden the regulated public and will overload Service 
staff with implementation of the designation. Specifically, many 
private landowners with agricultural fields, water diversions, and 
cattle ranches throughout the bird's range commented that this 
designation would cause them harm economically and delay projects 
through the regulatory process.
    Our Response: Pursuant to the Act, we are statutorily required to 
designate critical habitat for a federally listed species if it is 
determined to be both prudent and determinable. We have previously made 
a determination that critical habitat was both prudent and determinable 
in our previous designation for this species (62 FR 39129, July 22, 
1997). We further note that we are under court order to re-designate 
critical habitat for the southwestern willow flycatcher (please refer 
to our proposed rule (69 FR 60706, October 12, 2004) under Previous 
Federal Action for a discussion of the litigation history concerning 
this designation). Critical habitat designations do not constitute or 
create a regulatory burden, by themselves, in terms of Federal laws and 
regulations on private landowners carrying out private activities, but 
in certain areas they may trigger additional State regulatory reviews 
and other requirements. For example, actions occurring in critical 
habitat in California may be subject to additional regulatory reviews 
under the California Environmental Quality Act and other State laws and 
regulations. When a private action requires Federal approval, permit, 
or is federally funded, the critical habitat designation may impose a 
Federal regulatory burden for private landowners; absent Federal 
approval, permits, or funding, the designation should not affect 
farming and ranching activities on private lands. Similarly, a Federal 
nexus could result in the designation affecting future land use plans, 
and the designation may trigger State requirements which could impact 
such plans. However, we note that lands included in this proposal are 
waterways with limited development (housing or commercial structures) 
potential. As explained in this rule, we are required to and have 
developed an economic analysis of the effects of this designation 
pursuant to section 4(b)(2) of the Act which considers the issues 
raised by the commenters.
    (13) Comment: Some commented that designation of critical habitat 
for the southwestern willow flycatcher conflicts with management of 
native fish (Lake Mead and Horseshoe Lake), and similarly, that 
critical habitat for the flycatcher is inappropriate because it results 
in single species management.
    Our Response: Management for southwestern willow flycatcher habitat 
and native fish and other riparian/aquatic species should largely be 
compatible. A large number of riparian species are listed as threatened 
or endangered, species that naturally inhabit the riparian and/or 
aquatic habitats to which the flycatcher is also tied (USFWS 2002: 55-
60). This underscores that southwestern riparian and aquatic habitats, 
while supporting disproportionately high levels of biodiversity, have 
also been degraded at a landscape level. The presence of so many listed 
species within this broad ecosystem does not mean that difficult 
decisions must be made of managing for one listed species rather than, 
or at the expense of, another. Rather this situation illustrates that 
if riparian and aquatic ecosystems are improved to a more natural, 
heterogeneous conditions (recognizing that restoring rivers to 
completely wild conditions is not possible), many imperiled species 
will benefit.
    We do recognize however that there may be some specific instances 
where situations such as water storage could result in conflicts in 
somewhat artificial environments such as lakes for the flycatcher and 
listed fish. However, these instances throughout the flycatcher's range 
and this designation, we believe, are few and far between, and are site 
specific. The two locations brought up in comments, Lake Mead and 
Horseshoe Lake, are being excluded from this final rule pursuant to 
section 4(b)(2) of the Act.
    (14) Comment: Some comments pointed out that our critical habitat 
proposal was significantly different in the amount and location of 
areas identified in our 1997 designation, and there was no discussion 
or analysis of the difference.
    Our Response: As the comment points out, some areas designated as 
critical habitat in 1997 were not proposed for designation in this 
proposal, some of the same areas were proposed, and new areas were 
proposed. Our draft NEPA document described the specific streams that 
changed between the two proposals. Our specific methodology used to 
identify areas proposed as critical habitat provided our approach to 
critical habitat in contrast to the previous designation (which had no 
specific methodology). The science provided in the Recovery Plan (USFWS 
2002) and our improved knowledge of the distribution and abundance of 
territories, use of river corridors for migration, year-to-year 
movements, and habitat use within territories helped guide our approach 
and provided support for the segments proposed. Therefore, it was 
largely our improved knowledge of the flycatcher and its habitat that 
provided the difference in areas proposed in 2004 compared to those in 
1997.
    (15) Comment: Some stated that our comment periods for the proposed 
rule, NEPA document, and economic analysis were inadequate to allow the 
public to understand and comment meaningfully on the proposed rule and 
should be extended.
    Our Response: The proposed critical habitat rule for the 
southwestern willow flycatcher was available to the public for review 
and comment from October 12, 2004, to May 31, 2005, and for an 
additional 11 days from July 7 to July 18, 2005. The comment periods 
for the economic analysis and NEPA document extended from April 28, 
2005, to May 31, 2005, plus the additional 11-day period in July. 
Therefore, there was an open comment period for 43 days for the draft 
economic analysis and NEPA documents, plus there was a total of just

[[Page 60891]]

over 70 days where the public was able to examine these documents. We 
believe these two public comment periods of over 8 months for the 
proposal, and 43 days (but over 70 days to review) for the NEPA and 
economic analysis, provided adequate opportunity for public comment. In 
addition, due to the large scope of this rule and in order to comply 
with our September 30, 2005, court ordered date for completion of the 
final rule it would not have been possible to extend the comment period 
beyond July 18, 2005.
    (16) Comment: One commenter stated that the Service did not 
adequately notify landowners where proposed critical habitat was 
located. Another commenter expressed concern that the quality of the 
maps was poor and therefore, made it difficult for the public to 
adequately comment on the proposed revisions.
    Our Response: Due to the large scope of the proposed designation it 
was not possible to contact each landowner. However, we issued a widely 
disseminated news release regarding our proposal and published legal 
notices in major newspapers in areas involved in the proposal. We 
published numerous Federal Register notices including a notice of 
intent to conduct scoping for critical habitat, the critical habitat 
proposal, comment period extensions, notice of availability of draft 
documents, notices of scoping meetings and hearings. We sent out 
thousands of letters and cards to State and Federal government 
agencies, private individuals and groups, elected officials, and tribal 
governments also announcing the proposal, document availability, and 
public meetings/hearings. We also developed and sent out press releases 
concurrent with Federal Register notice announcements. A web page of 
southwestern willow flycatcher critical habitat materials was 
maintained at Arizona Ecological Services Web Site https://www.fws.gov/
arizonaes. Public meetings, open houses and/or hearings on the 
published proposal were held in the following locations: February 17, 
2005--Camp Verde, AZ (sponsored by Verde Watershed Association); May 2, 
2005, Escondido, CA; May 3, 2005, Chino, CA; May 9, 2005, Las Vegas, 
NV; May 10, 2005, Lake Isabella, CA; May 16, 2005, Mesa, AZ; May 17, 
2005, Silver City, NM; May 18, 2005, Albuquerque, NM; May 19, 2005, 
Alamosa, CO; May 24, 2005--Bishop, CA (sponsored by Los Angeles Water 
and Power Authority); July 7, 2005--Safford, AZ (sponsored by Graham 
County). NEPA scoping meetings were held at Escondido, Chino, and Lake 
Isabella, CA; Phoenix, AZ; Las Vegas, NV; Silver City and Albuquerque, 
NM, and Alamosa, CO in early 2004.
    Maps delineating the boundaries of critical habitat were included 
in the October 12, 2004, proposed rule, and posted at https://
criticalhabitat.fws.gov were specific GIS layers of the proposed 
critical habitat. In the proposed rule we provided contact information 
for eight Service Field Offices for anyone seeking assistance with the 
proposed critical habitat. Therefore, we believe that we made every 
effort possible to reach all interested parties and provide avenues for 
them to obtain information concerning our proposal and supporting 
documents.
    (17) Comment: One commenter stated that local land use controls 
provide sufficient protection for the southwestern willow flycatcher.
    Our Response: Although there are other State, local, and Federal 
laws that offer some protection to endangered species and their 
habitats (e.g., Clean Water Act and California Environmental Quality 
Act), none provide the same level of protection and review for 
threatened and endangered species as does the Act. These laws are not 
redundant and work in concert to provide protection for environmental 
resources.
    (18) Comment: Some comments expressed that the Service failed to 
identify special management considerations related to a variety of 
lands across the subspecies range.
    Our Response: In our proposed designation of critical habitat for 
the southwestern willow flycatcher that published on October 12, 2004 
(69 FR 60706), we identified special management considerations shared 
by all stream segments proposed for southwestern willow flycatcher 
critical habitat. We cited threats such as loss and modification of 
habitat due to industrial, agricultural, and urban developments, and 
directed the reader to locations where the threats are described in 
great detail in the final listing rule (60 FR 10694, February 27, 
1995), the previous critical habitat designation (62 FR 39129, July 22, 
1997), and the final recovery plan (USFWS 2002). We note there are 
complete appendices included in the Recovery Plan (USFWS: Appendices A-
O) that elaborate on rangewide southwestern willow flycatcher 
management issues focusing on water management, livestock grazing, 
recreation, cowbird parasitism, habitat restoration, exotic plants, 
fire management, recreation, etc.
    (19) Comment: One comment asked whether on-going activities, such 
as routine inspections, road grading, and construction adjacent to 
designated critical habitat are considered to appreciably decrease 
habitat values or quality through indirect effects.
    Our Response: The effects of any such activities on critical 
habitat must be considered by the Federal agency planning to conduct 
such activities. The action agency determines whether their action(s) 
``may affect'' the southwestern willow flycatcher or its primary 
constituent elements within the adjacent critical habitat based on 
their analyses. If so, the action agency would enter into consultation 
with us under section 7. We do not anticipate that grading existing 
roads or inspection of existing developed areas would likely result in 
an effect to critical habitat. Construction, depending on the type of 
activity, could have adverse effects, especially if it indirectly 
resulted in impacts to habitat such as groundwater pumping, channel 
manipulation, habitat trampling, etc.
    (20) Comment: Several comments expressed concern that commercial 
activities, such as mining, mineral prospecting, agriculture, etc. 
would be prohibited or severely restricted by a designation of critical 
habitat.
    Our Response: Section 7(a)(2) of the Act 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 
result in the destruction or adverse modification of critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, the action agency 
ensures that their actions do not destroy or adversely modify critical 
habitat. Section 7 of the Act does not apply to activities on private 
or other non-Federal lands that do not involve a Federal nexus, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat does not prohibit private or commercial activities 
from occurring. However, all parties, Federal, State, private, and 
tribal are unable to take (e.g., harm, harass, pursue) listed species 
under section 9 without the appropriate permit.
    (21) Comment: Some comments suggested that the designation of 
critical habitat would prohibit mosquito abatement programs.
    Our Response: The Service does not believe that mosquito abatement 
programs focused in communities and developed areas necessarily pose a 
risk to southwestern willow flycatchers. We

[[Page 60892]]

encourage cooperation and coordination from those applying chemicals to 
riparian areas in and around river water due to possible concerns 
regarding southwestern willow flycatchers, other wildlife dependent on 
insect populations, and water quality. We believe there are 
applications of mosquito abatement in riparian areas that could be 
compatible with southwestern willow flycatchers and reduce risk to 
other wildlife and people. For example, application of larvicide is 
typically most effective, target specific, and provides the least risk 
to non-target species (CDC 2003).

Comments Related to Critical Habitat, Primary Constituent Elements, and 
Methodology

    (22) Comment: Some questioned the scientific evidence used to 
determine critical habitat, one describing it as junk science.
    Our Response: In designating critical habitat for the southwestern 
willow flycatcher, we have used the best available scientific and 
commercial information, including results of numerous surveys, peer-
reviewed literature, unpublished reports by scientists and biological 
consultants, habitat models (Hatten and Paradzick 2003; Dockens and 
Paradzick 2004), a stakeholder-driven Recovery Plan (USFWS 2002), and 
expert opinion from biologists with extensive experience studying the 
southwestern willow flycatcher and its habitat. Further, information 
provided in comments on the proposed designation and the draft economic 
analysis were evaluated and taken into consideration in the development 
of this final designation, as appropriate. The literature cited for 
this rule is posted at https://www.fws.gov/arizonaes/. Also, the 
proposed rule has undergone peer review, and those comments are 
included above.
    (23) Comment: One commenter remarked that the information developed 
for the 29 km (18 mi) radius is inappropriate because it was site 
specific and is only a by-product of the study area.
    Our Response: We disagree and note the support for this radius 
provided by peer reviewers in comment number 6. In the instance of the 
work conducted by U.S. Geological Survey (USGS) that provided the 
information on natural movements of southwestern willow flycatchers, we 
are familiar with no other study that has occurred for as many years 
(since 1997), over as large an area, and has trapped, banded, and re-
sighted as many birds. The primary study area occurs along lower Tonto 
Creek, Roosevelt Lake, the Salt River immediately above Roosevelt Lake, 
the lower San Pedro River (encompassing an area from approximately 
Bingham Cienaga to Winkelman), and the Gila River from Dripping Springs 
Wash downstream past Kearny. However, the ability to detect banded 
flycatchers extends beyond this general study area to AZ, and to a 
lesser extent, across the entire bird's range.
    Banding and re-sighting of birds by the USGS occurs primarily in 
conjunction with crews from Arizona Game and Fish Department. In some 
years, approximately 40 or more people are directly participating in 
this effort. In past years, the USGS has traveled to locations across 
AZ, such as Camp Verde; the Gila River near Safford; and Greer to trap, 
band, and/or re-locate banded southwestern willow flycatchers, and has 
traveled throughout the subspecies range to trap, band, collect genetic 
material, and possibly detect previously banded birds.
    The primary study area encompasses a variety of habitats and 
conditions and locations over a large area. The habitat varies from 
free-flowing Tonto Creek and Salt River, to the regulated conservation 
space of Roosevelt Lake, to the regulated Gila River below Coolidge 
Dam, and the free-flowing San Pedro River. The work encompassed within-
drainage and between-drainage movements. We believe these are diverse 
locations providing diverse habitats over a wide ranging study area. 
This large study area did not place artificial geographic limits on 
potential re-sightings of banded southwestern willow flycatchers.
    A portion of each southwestern willow flycatcher recovery permit, 
issued by the Service for surveying in Region 2, identifies the 
importance of banded birds and the reporting requirements if one is 
detected. The USGS is able to respond to these reports to try and 
confirm these sightings. Also in support of this effort, the importance 
of documenting banded flycatchers is a section of each survey training 
session that every permitted surveyor attends. Therefore, the area and 
effort to determine the movements of flycatchers extends beyond the 
primary Roosevelt/San Pedro/Gila River area, to all survey sites across 
AZ, and to a lesser extent, across the bird's range. The USGS is also 
in contact with scientists studying flycatchers across their range, 
such as SWCA, Inc. and the Bureau of Reclamation along the lower 
Colorado River, and ongoing research on the Kern River, CA. 
Additionally, band recoveries are reported to the USGS Bird Banding Lab 
and reported back to the scientists.
    We understand that the selection of a study area could limit the 
extent of data collected, but in this case, we do not believe it 
hampered our ability to make an appropriate conclusion on southwestern 
willow flycatcher movements to determine high connectivity between 
distant sites. The frequency (267 of 292) of band recoveries within 29 
km (18 mi) radius; the approximate 150 km/93 mi distance between the 
limits of intensive monitoring (Tonto Creek inflow to Roosevelt Lake to 
Bingham Cienega on San Pedro River); the training, survey effort, and 
band recovery opportunities statewide and rangewide; and range of 
flycatcher movements recorded (0 km/mi to 440 km/276 mi) leads us to 
conclude that our application of the data collected was appropriate.
    (24) Comment: One commented that the critical habitat designation 
is not consistent with the Recovery Plan's definition of occupied 
habitat.
    Our Response: The Recovery Plan and survey protocols established 
for southwestern willow flycatchers define or describe the 
determination of an occupied nesting territory, but do not address, nor 
were intended to address, the amount or extent of area used by 
southwestern willow flycatchers for life-history needs, its home range, 
migration stopover areas, or how to delineate critical habitat. We note 
the Recovery Plan's (USFWS 2002: 16) conclusion that ``nesting habitat 
is only a small portion of the larger landscape that needs to be 
considered when developing management plans, recovery actions, 
biological assessments for section 7 consultations with the USFWS, or 
other documents defining management areas or goals for flycatcher 
recovery.'' The critical habitat designation follows this guidance.
    (25) Comment: One individual commented that critical habitat should 
be designated and recovery should be conducted on a patch-by-patch 
basis.
    Our Response: Flycatcher habitat is ephemeral and its mosaic-like 
distribution is dynamic in nature, because riparian vegetation is prone 
to periodic disturbance (i.e., flooding) (USFWS 2002:17). Therefore, it 
is not realistic to assume that any breeding habitat patch will remain 
suitable over the long-term, or persist in the same location (USFWS 
2002:17). Designation at the patch level is technologically unfeasible 
because comprehensive mapping of flycatcher habitat at the patch level 
does not exist.
    Cardinal and Paxton (2005) described the extent of area or home 
range used by pre-breeding, breeding, and post-nesting southwestern 
willow flycatchers

[[Page 60893]]

and dispersing young-of-the-year southwestern willow flycatchers, and 
discovered flycatchers using a variety of habitats extending beyond the 
area where a nest is placed for foraging, territory establishment, mate 
discovery, and staging for migration. Koronkiewicz et al. (2004) and 
McLeod et al. (2005) described the use of the entire length of the 
lower Colorado River and its tributaries by willow flycatchers during 
migration. Also, southwestern willow flycatchers exhibit general site 
fidelity, rather than specific nest fidelity, largely in response to 
its dynamic habitat (USFWS 2002: 22). Breeding southwestern willow 
flycatchers typically move from one season to the next, regularly up to 
29 km (18 mi). A few birds have been detected at greater than 400 km 
(248 miles) from a previous year's breeding location (E. Paxton, USGS, 
e-mail).
    (26) Comment: Many commented that areas identified in the Recovery 
Plan for recovery should be designated as critical habitat, 
specifically river segments not proposed in the Hassayampa/Agua Fria, 
Amaragosa, Santa Cruz, San Francisco, lower Rio Grande, Powell, San 
Juan, and Santa Clara Management Units.
    Our Response: Recovery plans are not regulatory documents, and as a 
result, there are no specific protections, prohibitions, or 
requirements afforded a species based solely on a recovery plan. 
Critical habitat contributes to the overall recovery strategy for 
listed species, but does not by itself achieve recovery plan goals. The 
Act states, at section 3(5)(c), that except in particular circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species. It is not the intent of the Act to designate 
critical habitat for every population and every documented historical 
location of a species. We have designated habitat that contain features 
essential for the conservation of the species.
    While proposed critical habitat for the southwestern willow 
flycatcher does not mirror the exact goals identified in the Recovery 
Plan, it does reflect the concepts of conservation biology used by the 
Recovery Team (USFWS 2002: 74-77). Specifically, our methodology 
targeted large populations and small populations that exist in high 
connectivity which equaled a large population (USFWS 2002: 74-75). This 
approach was chosen by the Team because large populations contribute 
the most to metapopulation stability and those smaller sites arranged 
in high connectivity may provide as much or more stability (USFWS 2002: 
74-75). This choice subsequently supports important conservation 
principles: (1) Populations should be distributed close to each other 
to allow for movement, and (2) those populations should provide for 
stable metapopulations, gene flow, connectivity, and protection against 
catastrophic losses. As a result, across 6 southwestern states, our 
proposal included river segments in 21 of the 29 Management Units with 
numerical conservation goals.
    (27) Comment: Some commenters recommended that all areas occupied 
by the southwestern willow flycatcher be designated as critical habitat 
and more unoccupied areas should be designated.
    Our Response: Section 3(5)(c) of the Act states that not all areas 
that can be occupied by a species should be designated as critical 
habitat unless the Secretary determines that all such areas are 
essential to the conservation of the species. Our regulations (50 CFR 
424.12(e)) also state that, ``The Secretary shall designate as critical 
habitat areas outside the geographic area occupied by the species only 
when a designation limited to its present range would be inadequate to 
ensure the conservation of the species.'' In this instance, we have 
determined that all areas that can be occupied or are presently within 
the geographical area of the southwestern willow flycatcher are not 
essential for conservation of the bird.
    (28) Comment: Some comments stated that our PCEs are too narrow in 
scope and omit important features such as water or moist soils.
    Our Response: Our PCEs specifically refer to the following: (1) 
Riparian plant species needed for breeding, foraging, and shelter for 
breeding, non-breeding, territorial, migrating, and dispersing 
flycatchers, (2) the variety of structural vegetation features targeted 
for nest placement, (3) the range of more generalized riparian habitat 
used for migrating, foraging, dispersing, and non-breeding southwestern 
willow flycatchers; and (4) their food requirements. River hydrology 
and geomorphology, groundwater, surface water, channel-floodplain 
connectivity, overbank flooding, hydrologic regime, fine sediments, 
moist soils, micro-climate, and other processes such as erosion, 
precipitation, drought, humidity, etc. are important for the presence, 
development, location, abundance, growth, regeneration, suitability, 
and maintenance of the vegetation and insects identified as the PCEs. 
We described in great detail the setting and function of these 
components and their role in supporting southwestern willow flycatcher 
habitat in the proposal (69 FR 60712-60715).
    (29) Comment: Several comments stated that we included areas where 
the southwestern willow flycatcher and their PCEs were absent, such as 
roads, developed areas, agricultural fields, bridges, or where the 
bird's status is uncertain. Some requested that we examine the segments 
more closely, particularly in Graham County, AZ, and more finely remove 
areas that do not contain PCEs. Others recommended that we also exclude 
right-of-way corridors adjacent to bridges or transmission lines.
    Our Response: In the development of this final rule, we have 
reviewed lands included in our proposal and have revised and removed 
areas from critical habitat that we could determine did not contain 
features essential to the conservation of the species or in some cases 
entire river segments (see Summary of Changes section below). For 
example, we received GIS layers and aerial photos where we could 
identify, confirm, and subsequently eliminate portions of agricultural 
fields in the Verde Valley, AZ, that fell within the designation; we 
removed Pinto Creek and the South Fork of the Little Colorado River in 
AZ; and we shortened the Big Sandy River segment in AZ, etc. We made an 
effort to exclude all developed areas, such as towns, housing 
developments, and other lands not reasonably believed to contain 
features essential to the conservation of the southwestern willow 
flycatcher.
    However, due to the limitations in technology, it is not possible 
to remove each and every one of these developed areas. Nor does the 
Service have the ability to ground truth and confirm each recommended 
developed area for removal. As a result, even at the refined mapping 
scale, the maps of the final designation may still include developed 
areas that do not contain primary constituent elements (see Criteria 
Used to Identify Critical Habitat section). Areas that do not contain 
the PCEs within the boundaries of critical habitat are not considered 
to be critical habitat and thus, actions in those areas would not 
trigger consultation unless they affected adjacent critical habitat.
    With regard to the request that all right-of-ways be removed from 
critical habitat, we are familiar with flycatcher habitat within right-
of-ways adjacent to bridges or underneath transmission lines; 
therefore, those locations would have the PCEs.
    (30A) Comment: We received numerous comments that the designation 
of critical habitat for the southwestern willow flycatcher would 
prevent the restoration of native habitat for the southwestern willow 
flycatcher-

[[Page 60894]]

specifically, the conversion of exotic saltcedar/tamarisk to native 
cottonwood-willow habitat.
    Our Response: Our 4(b)(8) determination in this final rule, and the 
approach provided in the Recovery Plan (USFWS 2002: Appendix H and K), 
supports site-specific restoration of habitat from exotic habitat to 
native vegetation (or possibly mixed native/exotic) of equal or better 
quality for the flycatcher. The approach provided in the Recovery Plan 
was designed to apply to general riparian restoration in addition to 
those efforts specifically for the southwestern willow flycatcher. 
While these efforts may require section 7 consultation due to temporary 
adverse effects to flycatchers and their habitat, we do not believe 
that a project would result in adverse modification if the results of 
site-specific analysis and restoration culminate in equal or better 
habitat quality for the flycatcher.
    (30B) Comment: Those supportive of the use of biocontrol 
(introduction of nonnative insects) to degrade or kill tamarisk (an 
exotic plant species used by flycatchers for nesting, foraging, etc.) 
through leaf consumption expressed: (1) Opposition to designation of 
flycatcher critical habitat in general; (2) disapproval of the approach 
to biocontrol that is discussed in the final Recovery Plan for the 
flycatcher; (3) asserted that tamarisk does not provide suitable 
nesting habitat (i.e., is inadequate) for flycatchers and other 
wildlife; and (4) that by removing tamarisk, it will reduce the amount 
of water consumed by tamarisk through evapo-transpiration from those 
drainages, which will in turn, increase the amount of water in the 
river.
    Our Response: As indicated above in our response to comment number 
30, the Recovery Plan (USFWS 2002: Appendix H and K), supports site-
specific restoration of exotic habitat to native vegetation (or 
possibly mixed native/exotic) of equal or better quality for the 
flycatcher. The Recovery Plan (USFWS 2002: Appendix H and K) provides 
guidance to determine the cause for exotic plant proliferation, long-
term ecosystem solutions, measures to determine the success of 
restoration activities, and restoration strategies. Absent any new 
information on biocontrol, we continue to support the concern related 
to the use of biocontrols and guidance provided in the Recovery Plan 
regarding introduction of biocontrol into the breeding range of the 
flycatcher (USFWS 2002:121).
    (31) Comment: We received comments that our approach in targeting 
occupied segments does not allow for the growth of southwestern willow 
flycatcher populations.
    Our Response: We disagree and believe our approach in targeting 
river segments with large populations and collections of small sites in 
high connectivity that equal a large population provides for the growth 
of populations within designated critical habitat and outside of 
critical habitat. The focus on protection of large sites with the 
ability to produce dispersers was a conservation strategy of the 
Recovery Team (USFWS 2002:75). The Recovery Team (USFWS 2002:75) 
described that ``maintaining and augmenting existing breeding 
populations is a faster, easier, and more reliable way to maintain and 
achieve population goals * * *.'' ``Thus, maintenance and protection of 
existing populations is a priority.'' Existing sites have the 
opportunity to grow and produce dispersers to develop nesting areas 
within designated critical habitat segments, or disperse to pioneer 
sites outside of designated critical habitat. Because all potential or 
existing flycatcher habitat is not designated as critical habitat, this 
does not imply that non-designated areas are not important for 
southwestern willow flycatcher conservation.
    (32) Comment: Some commented that our departure fr