Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Western Distinct Population Segment of the Yellow-Billed Cuckoo, 20798-21005 [2021-07402]
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Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2013–0011;
FF09E21000 FXES11110900000 212]
RIN 1018–BE29
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Western Distinct
Population Segment of the YellowBilled Cuckoo
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), designate
critical habitat for the western distinct
population segment of the yellow-billed
cuckoo (western yellow-billed cuckoo)
(Coccyzus americanus) under the
Endangered Species Act. In total,
approximately 298,845 acres (120,939
hectares) are now being designated as
critical habitat in Arizona, California,
Colorado, Idaho, New Mexico, Texas,
and Utah. This rule extends the Act’s
protections to critical habitat for this
species.
SUMMARY:
DATES:
This rule is effective May 21,
2021.
This final rule is available
on the internet at https://
www.regulations.gov, and the
Sacramento Fish and Wildlife Office
website at https://www.fws.gov/
sacramento. Comments and materials
we received, as well as supporting
documentation we used or developed in
preparing this rule, are available for
public inspection at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011.
The coordinates or plot points or both
from which the maps are generated are
included in the decisional record for
this critical habitat designation and are
available at https://www.regulations.gov
at Docket No. FWS–R8–ES–2013–0011
and on the Service’s website at https://
www.fws.gov/sacramento.
FOR FURTHER INFORMATION CONTACT:
Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento
Fish and Wildlife Office, 2800 Cottage
Way, Room W–2605, Sacramento,
California 95825; or by telephone 916–
414–6600. If you use a
telecommunications device for the deaf
(TDD), call the Federal Relay Service
(FRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
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ADDRESSES:
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Executive Summary
Scope of this rule. The information
presented in this final rule pertains only
to the western distinct population
segment of the yellow-billed cuckoo
(western yellow-billed cuckoo) (DPS).
Any reference to the ‘‘species’’ or to the
western yellow-billed cuckoo within
this document only applies to the DPS
and not to the yellow-billed cuckoo as
a whole unless specifically expressed. A
complete description of the DPS and
area associated with the DPS is
contained in the proposed and final
listing rules for the western yellowbilled cuckoo published in the Federal
Register (78 FR 61621, October 3, 2013,
and 79 FR 59992, October 3, 2014).
Why we need to publish a rule. Under
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.;
hereafter ‘‘Act’’ or ‘‘ESA’’), any species
that is determined to be an endangered
or threatened species requires critical
habitat to be designated, to the
maximum extent prudent and
determinable. Designations and
revisions of critical habitat can only be
completed by issuing a rule.
What this document does. This is a
final rule to designate critical habitat for
the western yellow-billed cuckoo. This
final designation of critical habitat
identifies areas that we have
determined, based on the best scientific
and commercial information available,
are essential to the conservation of the
species or otherwise essential for its
conservation. After exclusions of areas
under section 4(b)(2) of the Act, the
final critical habitat comprises 63 units
and is located in the States of Arizona,
California, Colorado, Idaho, New
Mexico, Texas, and Utah. The total
change in area as a result of exclusions
or changes from the revised proposed
designation is a reduction of
approximately 194,820 acres (ac)
(78,840 hectares (ha)). In addition, some
of the areas removed did not contain the
physical or biological features or meet
our criteria for critical habitat for the
western yellow-billed cuckoo and were
identified based on comments or
additional review. The total area
excluded is approximately 172,490 ac
(69,808 ha).
The basis for our action. Section
4(a)(3) of the Act requires the Secretary
of the Interior (Secretary) to designate
critical habitat concurrent with listing to
the maximum extent prudent and
determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific
areas within the geographical area
occupied by the species, at the time it
is listed, on which are found those
physical or biological features (I)
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essential to the conservation of the
species and (II) which may require
special management considerations or
protections; and (ii) specific areas
outside the geographical area occupied
by the species at the time it is listed,
upon a determination by the Secretary
that such areas are essential for the
conservation of the species. Section
4(b)(2) of the Act states that the
Secretary must make the designation on
the basis of the best scientific data
available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impacts of specifying any
particular area as critical habitat.
Section 4(b)(2) also authorizes the
Secretary to exclude areas from the
critical habitat if the benefits of
excluding the areas outweigh the
benefits of including the areas, unless
exclusion would result in extinction of
the species.
Peer review and public comment. We
sought comments from six independent
specialists to ensure that our
designation is based on scientifically
sound data and analyses. In 2014, we
obtained opinions from four
knowledgeable individuals with
scientific expertise to review our
technical assumptions, analysis, and
whether or not we had used the best
scientific data available. These peer
reviewers generally concurred with our
methods and conclusions and provided
additional information, clarifications,
and suggestions to improve this final
rule. Information we received from peer
review is incorporated in this final
designation of critical habitat. We also
received comments from one of the peer
reviewers on our 2020 revised proposed
rule. We considered all comments and
information received from the peer
reviewer, species experts, and the
public during the comment period for
the 2014 proposed and the 2020 revised
proposed designation of critical habitat.
Previous Federal Actions
On October 3, 2013 (78 FR 61621), we
published a proposed rule to list the
western distinct population segment
(DPS) of the yellow-billed cuckoo as
threatened. On August 15, 2014 (79 FR
48547), we published a proposed rule to
designate critical habitat for the DPS.
On October 3, 2014 (79 FR 59992), we
published the final listing rule, which
added the western yellow-billed cuckoo
to the List of Endangered and
Threatened Wildlife in title 50 of the
Code of Federal Regulations at 50 CFR
17.11(h) as a threatened species. On
February 27, 2020 (85 FR 11458), we
published a revised proposed critical
habitat designation and opened a public
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comment period that closed on April 27,
2020. On September 16, 2020 (85 FR
57816), we published a not-warranted
12-month finding on a petition to delist
the western yellow-billed cuckoo.
Please refer to the proposed and final
listing and revised proposed critical
habitat rules for the western yellowbilled cuckoo published in the Federal
Register for a detailed description of
previous Federal actions concerning this
species.
Summary of Changes From the Revised
Proposed Rule
We reviewed the site-specific
comments related to critical habitat for
the western yellow-billed cuckoo (see
Summary of Comments and
Recommendations), completed our
analysis of areas considered for
exclusion under section 4(b)(2) of the
Act, reviewed our analysis of the
Physical or biological features (PBFs)
essential to the long-term conservation
of the western yellow-billed cuckoo,
reviewed the application of our
conservation strategy and criteria for
identifying critical habitat across the
range of the western yellow-billed
cuckoo to refine our designation, and
completed the economic analysis of the
designation. This final rule incorporates
changes to our 2020 revised proposed
critical habitat rule based on the
comments that we received, and have
responded to in this document, and
considers efforts to conserve the western
yellow-billed cuckoo.
As a result, our final designation of
critical habitat reflects the following
changes from the February 27, 2020,
revised proposed rule (85 FR 11458):
(1) We revised unit areas based on
comments received regarding areas that
did or did not contain the physical or
biological features essential to the
conservation of the species.
(2) We revised Federal, Tribal, and
private land ownership information
regarding Unit 70 (UT–1) based on
information received from Duchesne
County, Utah.
(3) We excluded approximately
172,490 ac (69,808 ha) from entire or
portions of Units as identified in Table
3, Areas Excluded by Critical Habitat
Unit.
(4) In the revised proposed rule, we
misidentified the acreage of off-site
restoration areas identified in the Lower
Colorado River Multi-Species
Conservation Program Habitat
Conservation Plan (LCR MSCP HCP).
We now acknowledge this
miscalculation and as a result of the
HCP providing conservation for the
western yellow-billed cuckoo and its
habitat, we are excluding from this
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designation all lands that were
identified as proposed critical habitat
within the planning area.
(5) The U.S. Forest Service (USFS)
suggested that the Tucson Audubon
Society (MacFarland and Horst 2015)
did not survey Unit 44 (AZ–32,
California Gulch). We corrected the unit
description with survey information
used to determine occupancy for this
unit.
(6) We updated the climate change
information with new references based
on comments.
(7) We corrected a number of errors in
unit length, acreage, and descriptions.
(8) We clarified that Rockhouse
Demonstration Site on the Salt River
inflow to Roosevelt Lake was not
included as critical habitat.
(9) In the revised proposed rule, we
failed to identify potential exclusions
for San Carlos Apache parcels on the
lower San Pedro River and Aravaipa
Creek and for Eagle Creek on the San
Carlos Apache Tribal lands. These
Tribal lands have been excluded. We
corrected ownership and operation of
San Carlos Apache Reservoir and
Coolidge Dam.
Supporting Documents
In the revised proposed critical
habitat rule, we stated that a draft
analysis document under the National
Environmental Policy Act (NEPA) for
the designation of critical habitat was
made available to the public for
comment. We have now finalized an
environmental assessment with a
finding of no significance under NEPA.
The document and finding of no
significance is available at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011 and from the
Sacramento Fish and Wildlife Office at
https://www.fws.gov/sacramento. See
Required Determinations section below
for a discussion of our NEPA obligations
for this designation.
We also finalized our information
pertaining to our economic analysis
after considering public comment on the
draft document. The final document
(IEc 2020, entire) is available at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011.
Species Information
The western yellow-billed cuckoo is a
migratory bird species, traveling
between its wintering grounds in
Central and South America and its
breeding grounds in North America
(Continental United States and Mexico)
each spring and fall often using river
corridors as travel routes. Habitat
conditions through most of the western
yellow-billed cuckoo’s range are often
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dynamic and may change condition or
location within or between years
depending on environmental
conditions, vegetation growth, tree
regeneration, plant maturity, stream
dynamics, and sediment movement and
deposition. The species’ major food
resources (insects) are also similarly
variable in abundance and distribution.
As a result, the western yellow-billed
cuckoo’s use of an area is tied to the
area’s habitat condition and food
resources, which as stated, can be
variable between and within years. This
variability in resources may cause the
western yellow-billed cuckoo to move
between areas in its wintering or
breeding grounds to take advantage of
habitat conditions and food availability.
For a thorough discussion of the
western yellow-billed cuckoo’s biology
and natural history, including limiting
factors and species resource needs,
please refer to the proposed and final
rules to list this species as threatened
published in the Federal Register on
October 3, 2013 (78 FR 61621), and
October 3, 2014 (79 FR 59992),
(available at https://www.regulations.gov
at Docket No. FWS–R8–ES–2013–0104),
and the proposed critical habitat rule,
which published August 15, 2014 (79
FR 48548) (available at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011).
Summary of Comments and
Recommendations
We requested written comments from
the public on the initial proposed (2014)
and revised proposed (2020) designation
of critical habitat for the western
yellow-billed cuckoo during multiple
comment periods. The first comment
period opened on August 15, 2014, and
closed on October 14, 2014 (79 FR
48548). The comment period was
reopened from November 12, 2014, to
January 12, 2015 (79 FR 67154). On
December 2, 2014, we announced a
public hearing which was held in
Sacramento, California, on December
18, 2014 (79 FR 71373). On February 27,
2020, we opened a comment period on
the revised proposed critical habitat (85
FR 11458). The comment period closed
on April 27, 2020.
In our 2014 proposed rule designating
critical habitat, we contacted
appropriate Federal, State, Tribal
governments, and local agencies;
scientific organizations; and other
interested parties, and invited them to
comment on the proposed critical
habitat designation and 2014 draft
economic analysis. We also held a
public hearing in December 2014 in
Sacramento, California, and received
comments from scientific experts,
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landowners, and other stakeholders
regarding the proposed designation. On
February 27, 2020, with the publication
of the revised proposed rule (85 FR
11458), we again contacted all
interested parties including appropriate
Federal and State agencies, Tribal
governments, scientific experts and
organizations, and other interested
parties and invited them to submit
written comments on the revised
proposal by April 27, 2020. We stated
that any comments received as a result
of the 2014 proposed rule need not be
resubmitted and that they would be
addressed in this final rule. Newspaper
notices inviting general public comment
were published in numerous locations
throughout the range of the critical
habitat designation for both the original
and revised proposed rules.
During the comment period on the
2014 proposed rule, we received nearly
1,200 written comments as well as over
87,000 form letters on the proposed
critical habitat designation or the draft
economic analysis (IEc 2013, entire).
During the comment period on the
revised proposed rule, we received an
additional 99 comment letters and over
6,000 form letters on the revised
proposed critical habitat designation or
the draft economic analysis (IEc 2019,
entire; IEc 2020, entire). We also
received from several parties additional
requests for exclusion of areas that were
not identified in the revised proposed
rule. We reviewed each exclusion
request and whether the requester
provided information or a reasoned
rationale to initiate an analysis or
support an exclusion (see Policy
Regarding Implementation of Section
4(b)(2) of the Endangered Species Act:
81 FR 7226; February 11, 2016). All
substantive information provided
during each comment period has either
been incorporated directly into this final
determination or addressed in our
responses below.
Peer Review
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), and our August 22, 2016,
memorandum updating and clarifying
the role of peer review actions under the
Act, we solicited expert opinion on the
2014 proposed critical habitat from six
knowledgeable individuals with
scientific expertise that includes
familiarity with the western yellowbilled cuckoo and its habitat, biological
needs, and threats. We received
responses from four of the peer
reviewers. In 2020, during the public
comment period, we received comments
from one of the peer reviewers regarding
our revised proposed rule. We
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addressed the 2014 and 2020 peer
reviewer comments in this final rule as
appropriate.
We reviewed all the comments we
received from the peer reviewers for
substantive issues and new information
regarding the western yellow-billed
cuckoo and its habitat use and needs.
The peer reviewers generally concurred
with the information regarding the
western yellow-billed cuckoo and its
habitat. In some cases, they provided
additional information, clarifications,
and suggestions to improve the
designation. Our revised designation
was developed in part to address some
of the concerns and information raised
by the 2014 peer reviewers. The
reviewers also provided or corrected
references we cited in the proposed
rule. The additional details and
information have been incorporated into
this final listing rule as appropriate.
Substantive comments we received from
peer reviewers as well as Federal, State,
Tribal, and local governments,
nongovernmental organizations, and the
public are outlined below.
Comment 1: One peer reviewer
recommended discussion of the role
nonnative plant species other than
tamarisk (salt cedar) (Tamarix spp.) play
in supporting western yellow-billed
cuckoo. The peer reviewer noted that
particularly in western Colorado,
Russian olive (Elaeagnus angustifolia)
forms dense stands dominating the
understory of the largest cottonwood
galleries along areas identified as
critical habitat. The peer reviewer
provided information on a confirmed
nest on July 21, 2008, in Russian olive
in revised proposed Unit 69 (CO–2)
along the North Fork of the Gunnison
River near the town of Hotchkiss. The
peer reviewer commented that the
possible effects to western yellow-billed
cuckoo and its habitat should be
considered during widespread removal
of Russian olive and the reviewer
recommended rapid replacement with
native shrubs.
Our Response: In response to this
comment, in the 2020 revised proposed
critical habitat, we included discussion
of the presence and use of nonnative
plant species, including Russian olive,
in western yellow-billed cuckoo habitat
(85 FR 11458, at pp. 11466, 11469,
11473).
Comment 2: One peer reviewer
suggested adding additional areas along
the Sacramento River, California, based
on future plans for restoration of those
sites.
Our Response: We based our
designation of areas by selecting
occupied breeding habitat for the
western yellow-billed cuckoo. Our
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conservation strategy and criteria for
identifying occupied areas is supported
by existing information on species’
abundance and distribution. In our
analysis, we found that existing habitat
availability along the Sacramento River
is sufficient to support a larger number
of breeding birds. As a result, in this
final rule, we do not include additional
unoccupied areas, especially if those
areas have not been restored to contain
the habitat features necessary for the
species.
Comment 3: One peer reviewer
suggested including areas along river
segments to allow for natural stream
processes such as bank cutting and
deposition to occur, especially when
hardened banks limit this natural
process, thereby limiting the
establishment of riparian vegetation.
Our Response: In determining
boundaries for the critical habitat along
river segments, we evaluated aerial
imagery to map those vegetated areas
along the river segments that we
determined contain the physical or
biological features (PBFs) essential to
the conservation of the species and
which may require special management
considerations or protection. In most
cases, we included areas along rivers
and streams that would allow for
natural stream processes such as cutting
and deposition that would allow for
such meandering of the river to take
place.
Federal Agency Comments
Comment 4: USFS stated that the
critical habitat designation in Unit 64
CA–2 at Lake Isabella, California, could
affect recreation and grazing
opportunities on USFS lands. The U.S.
Army Corps of Engineers (Corps) also
commented that designating areas
within the floodplain would disrupt
flood control operations and that
portions of the unit within the
floodplain of Lake Isabella under
conservation easement should be
removed or excluded.
Our Response: As a result of the
Federal agency and other public
comments (Kern County and Kern River
Watermaster) on the 2014 proposed
designation and discussions with the
Corps since the publication of the 2020
revised proposed designation, we
revised the extent of the critical habitat
within Unit 64 at Lake Isabella to avoid
those areas typically inundated by the
lake or areas within the floodplain.
Although the western yellow-billed
cuckoo may use these areas during
periods of drought or other times when
the lake is drawn down, these areas are
temporary and extremely variable and
may not contain the physical or
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biological features on a long-term basis.
We also identified and excluded
portions of the unit under conservation
easement under section 4(b)(2) of the
Act. Our rationale for excluding certain
portions of the unit is outlined below.
See Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General.
Comment 5: The Corps requested
exclusion of Unit 4 (AZ–2) and the
portion of Unit 31 (AZ–29) for operation
and maintenance of Alamo Dam and
Lake in Arizona.
Our Response: We identified the
entire Unit 4 (AZ–2) at Alamo Lake and
a portion of Unit 31 (AZ–29) upstream
of the lake on Big Sandy River for
possible exclusion in our proposed rule
and have excluded these areas based on
the Arizona Game and Fish Department
(AGFD) Alamo Lake State Wildlife Area
management plan. We also acknowledge
the multi-year process underway among
the Corps and partners to develop a
long-term operation plan for Alamo
Dam and Lake that benefits
environmental resources while meeting
the dam’s maintenance needs (USACE
2020, entire). Although the original
authority for the Corps’ Alamo Dam and
Lake was for flood control, the Water
Resources Development Act of 1996
(Pub. L. 104–303) authorized the
operation of the dam to provide fish and
wildlife benefits both upstream and
downstream of the dam as long as these
actions do not reduce flood control and
recreation benefits. The revised
operations are designed to improve the
currently degraded riparian western
yellow-billed cuckoo and southwestern
willow flycatcher habitat (Empidonax
traillii extimus) by providing the
magnitude, timing, and duration of flow
that encourages regeneration and
maintenance of riparian vegetation
(USACE 2020, pp. 14–16). Benefits are
expected both upstream and
downstream of Alamo Dam (see
Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General).
Comment 6: The USFS reiterated that
overgrazing does not occur on most of
the 20 units in the Coronado National
Forest that were proposed as critical
habitat. The USFS requested removal of
the statement regarding overgrazing
from the final rule.
Our Response: Our discussion of
overgrazing is in reference to the special
management and protections that may
be required in areas identified as critical
habitat. Grazing operations that are
properly managed, such as USFS lands
under management under the Coronado
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National Forest Land Management Plan
and Allotment Management Plans, may
be in compliance with grazing standards
but may still result in reduced riparian
habitat quality and quantity over time
for western yellow-billed cuckoos.
Comment 7: The Department of
Energy (DOE) through the Western Area
Power Administration (WAPA) and two
local private energy companies
requested information on how
maintaining rights-of-way for electrical
power transmission lines would be
treated in areas of critical habitat and
requested that these areas be excluded
from the designation. The commenters
stated that the designation would limit
maintenance of the rights-of-way and
potentially cause increased risk of
wildfires, power outages, or injury to
human life and property.
Our Response: With respect to rightsof-way maintenance activities in areas
of critical habitat, Federal agencies that
authorize, carry out, or fund actions that
may affect listed species or designated
critical habitat are required to consult
with us to ensure the action is not likely
to jeopardize listed species or destroy or
adversely modify designated critical
habitat. This consultation requirement
under section 7 of the Act is not a
prohibition of Federal agency actions;
rather, it is a means by which they may
proceed in a manner that avoids
jeopardy or adverse modification. Even
in areas absent designated critical
habitat, if the Federal agency action may
affect a listed species, consultation is
still required to ensure the action is not
likely to jeopardize the species. Because
the areas designated as critical habitat
are occupied and consultation will be
required to meet the jeopardy standard,
the impact of the critical habitat
designation should be minimal and
administrative in nature. In some
instances, we have worked with entities
with on-going maintenance
requirements such as in rights-of-way to
develop programmatic consultations
that help to conserve habitat while still
meeting an entity’s operational
responsibilities, and we are willing to
meet with DOE and WAPA to discuss
potential programmatic consultation
activities. In addition, existing
consultation processes also allow for
emergency actions for wildfire and other
risks to human life and property; critical
habitat would not prevent the
commenters from fulfilling those
obligations. Lastly, we note that actions
of private entities for which there is no
Federal nexus (i.e., undertaken with no
Federal agency involvement) do not
trigger any requirement for consultation.
In regard to the commenter’s request
to exclude their rights-of-way areas from
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the critical habitat designation, the
commenters provided general
statements of their desire to be excluded
but no information or reasoned rationale
as described in our preamble discussion
in our policy on exclusions (see Policy
Regarding Implementation of Section
4(b)(2) of the Endangered Species Act:
81 FR 7226; February 11, 2016) (Policy
on Exclusions) or as described in our
2020 revised proposed rule (85 FR
11502). For the Service to properly
evaluate an exclusion request, the
commenter must provide information
concerning how their rights-of-way
maintenance activities would be limited
or curtailed by the designation, and
hence the need for exclusion. In
addition, as noted above, the
requirement to consult with us on
Federal actions that may affect
designated critical habitat is designed to
allow actions to proceed while avoiding
destruction or adverse modification of
critical habitat.
In the Policy on Exclusions, we
outline the procedures we undertake
when determining if an area should or
should not be excluded. In determining
whether or not to exclude an area, the
Secretary is given a great deal of
discretion for undertaking an exclusion
analysis or determining to exclude an
area. In our review of their request of
exclusion, we determined that the effect
of having critical habitat designated in
their rights-of-way would be to require
consultation with us for those Federal
agency actions that may affect such
designated critical habitat. In addition,
we determined that this consultation
requirement would not preclude these
rights-of-way maintenance activities
from occurring, and subsequently would
not result in a potential for increased
risk of wildfires, power outages, or
injury to human life and property.
Comment 8: The U.S. Bureau of
Reclamation (Reclamation) requested
that the full pools of Elephant Butte and
Caballo Reservoirs be excluded from
critical habitat designation based on a
precedent set by the Rio Grande silvery
minnow (Hybognathus amarus)
designated critical habitat, a variety of
commitments associated with section 7
consultations and their Southwestern
Willow Flycatcher and Yellow-billed
Cuckoo Management Plan. The full pool
of Elephant Butte Reservoir is
considered to be River Mile (RM) 62 by
Reclamation.
Our Response: The Service commends
Reclamation on their decision to allow
for the temporary habitat to develop
within Elephant Butte and Caballo
Reservoirs and other commitments
identified in their Southwestern Willow
Flycatcher and Yellow-billed Cuckoo
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Management Plan. We have reviewed
the information presented by
Reclamation for Elephant Butte
Reservoir and information on the
species use and habitat conditions for
the western yellow-billed cuckoo and
determined that an exclusion for
Elephant Butte Reservoir (Unit 37, NM–
6B) to RM 54 is appropriate for
exclusion.
We also reviewed Reclamation’s
request for excluding the two areas
associated with Caballo Reservoir (Unit
39, NM–8A and NM–8B) and
determined that exclusion of these areas
is appropriate. See Exclusions (Federal
Lands) for our description and analysis
for excluding Elephant Butte and
Caballo Reservoirs under section 4(b)(2)
of the Act from the final designation.
Comment 9: Reclamation is concerned
that critical habitat could impose
unnecessary burdens on water storage
and delivery operations in Arizona for
Reclamation and its partners. The areas
of concern include: Habitat downstream
of Horseshoe Dam (Unit 11, AZ–9A); the
eastern part of Unit 17 (AZ–15) on the
Lower San Pedro and Gila Rivers
upstream of Dripping Springs Wash to
San Carlos Reservoir on the Gila River
because this reach cuts through a
narrow canyon, is devoid of vegetation,
and surveys have not detected western
yellow-billed cuckoos; the 2020
proposed Unit 11 (AZ–9B Horseshoe
Dam) extension from the south end of
Horseshoe Reservoir to below Horseshoe
Dam because the additional area
downstream to Sheep Creek is canyonbound with narrow stringers of trees
and does not currently support suitable
breeding or foraging habitat and because
the lower segment occurs within the
Bartlett Reservoir operating space that
precludes establishment and persistence
of suitable nesting and foraging habitat.
Our Response: Habitat for many
species, including the western yellowbilled cuckoo, along rivers, dams, and
reservoirs fluctuates over time as habitat
transitions due to natural or humaninduced succession. At any given time
across the range, habitat may be
regenerating, growing into suitability,
growing out of suitability, desiccated
from drought, or killed from scouring
floods or fire. These processes are
expected to occur over time in critical
habitat. We agree that proposed critical
habitat should not have been identified
in the steeper and narrower portions of
Unit 17 (AZ–15) on the Gila River and
have removed these areas from the final
designation. Although some breeding
and foraging habitat exists in this upper
reach, it is of lesser quality than habitat
farther downstream. We also agree that
the southern boundary of the additional
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Unit 11 (AZ–9B Horseshoe Dam)
segment where PBFs are lacking does
not constitute critical habitat. The
southern terminus of this extension is
now the same as the terminus of the
critical habitat for the southwestern
willow flycatcher. In the revised
proposed rule, we identified portions of
Unit 11 (AZ–9A and AZ–9B) for
consideration to be excluded under the
Salt River Project’s (SRP’s) Horseshoe
and Bartlett Reservoir HCP and
excluded these areas from the final
designation (see Private or Other NonFederal Conservation Plans Related to
Permits Under Section 10 of the Act).
Comment 10: Reclamation requested a
correction to our description of how
western yellow-billed cuckoo habitat is
maintained in Unit 1 (CA/AZ–1) and
Unit 2 (CA/AZ–2) as a result of the LCR
MSCP. Reclamation points out the
inaccuracy of the statement that the
hydrologic processes needed to
regenerate and maintain breeding
habitat occur within these units but
depends on river flows and flood
timing. The majority of the western
yellow-billed cuckoo breeding that
occurs on the mainstem of the Lower
Colorado River, including habitat at
Palo Verde Ecological Preserve, Cibola
Valley Conservation Area, Cibola
National Wildlife Refuge Unit #1
Conservation Area, and the ‘Ahakhav
Tribal Preserve, has been created
through tree plantings and can be
maintained only through active
irrigation as the habitat is disconnected
from the river channel on the upland
side of the levees.
Our Response: We have reviewed the
information and have revised the
information regarding Unit 1 and Unit 2
in this final rule to clarify that most of
the western yellow-billed cuckoos
breeding along the Lower Colorado
River are breeding in revegetation sites
created by the LCR MSCP. Because
these units have been excluded (see
Exclusions) from the final designation,
we removed the Unit 1 and 2
descriptions and provide them in our
supporting documentation (Service
2020b, entire).
Comment 11: The U.S. Customs and
Border Protection under the Department
of Homeland Security (DHS/CBP)
requested that the Roosevelt Reservation
portion of critical habitat in Units 1, 16,
20, 21, 44, 45, 52, and 61 along the U.S./
Mexico border be considered for
exclusion under section 4(b)(2) of the
Act for national security reasons and for
being exempt from environmental
regulations (DHS 2020, entire). The
Roosevelt Reservation is a 60-ft (18-m)
wide strip of land owned by the Federal
Government along the United States
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side of the U.S./Mexico border in
California, Arizona, and New Mexico.
Our Response: We have reviewed
DHS/CBP’s request and have excluded
the 60-ft (18-m) area of the Roosevelt
Reservation from the final designation.
Please see Exclusions (Exclusions Based
on Impacts on National Security and
Homeland Security) for our analysis of
the DHS/CBP request for exclusion for
border units within the Roosevelt
Reservation.
Comment 12: The U.S. International
Boundary and Water Commission
(IBWC), expressed concern that the
designation of critical habitat along the
Rio Grande and other areas (Units 1, 2,
37, 39, and 41) would hinder the
implementation of the 1906 Convention
with Mexico or the requirements to
deliver water under the Rio Grande
Compact. Therefore they requested
exclusion of their lands from these
units. IBWC also requested an exclusion
of Unit 20 (AZ–18 Santa Cruz River) to
ensure its permit requirements and
operation of the Nogales International
Wastewater Treatment Plant are not
impacted.
Our Response: Several of the areas
identified by the IBWC have already
been excluded entirely or in part from
the final designation based on
conservation and management of the
areas by other entities and thus are not
addressed further here. These areas
include Unit 1 and 2 along the lower
Colorado River, portions of Unit 37 on
the Rio Grande, Unit 39 at the Caballo
Reservoir, and Unit 41 at Seldon
Canyon and Radium Springs (see
Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General Private or Other Non-Federal
Conservation Plans or Agreements and
Partnerships, in General) for a full
discussion of our exclusion analyses).
We note that IBWC would still need to
consult for actions which may affect the
species under section 7 of the Act to
ensure they do not jeopardize the
species. The only area remaining within
the designation is a portion of Unit 37
(NM–6B) at Elephant Butte Reservoir.
With respect to the remaining area
within Unit 37 (NM–6B), we have no
information indicating that designation
of these areas as critical habitat would
prevent IBWC from implementing the
treaty or meeting their water delivery
commitments, or would otherwise
disrupt water management actions. For
example, our economic analysis did not
identify water delivery or other water
management actions as incurring
significant costs as a result of
designating these areas, nor did it
anticipate that water operations would
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be significantly affected. Moreover, the
IBWC did not specify whether it was
requesting exclusion based upon
national-security or homeland-security
reasons, nor explain how treaty
implementation would fit within these
possible exclusions. IBWC did not
provide any other information or a
reasonably specific justification
showing an incremental impact to
national security or homeland security
from designation, as described in our
preamble discussion in our Policy on
Exclusions (81 FR at 7231). Nor did the
IBWC provide any reasoned explanation
of how treaty implementation would be
affected by a designation, and thus we
have no basis to exclude this area based
on treaty commitments. Additionally,
our 2020 revised proposed rule
designating critical habitat for the
western yellow-billed cuckoo requested
information on how properties for
which exclusions were requested are
managed and protected, noting that
without this information, we could not
weigh the benefits of a potential
exclusion in comparison to inclusion
(85 FR 11458, 11502 (February 27,
2020)). Having received no information,
we have no basis to exclude the
requested portions of Unit 37.
In regard to the IBWC’s request to
exclude areas in Unit 20 due to
potential impacts to waste water
treatment facilities, we have no
information indicating that such
impacts are likely. Due to the arid
nature of the Southwest and lack of
consistent water flows, waste water
treatment facilities often assist in
maintaining river flows and may benefit
riparian habitat (Luthy et al. 2015,
entire). As a result, we do not anticipate
significant changes, if any, for the
operation of waste water treatment
facilities due to the designation of
critical habitat. Moreover, the IBWC
again did not provide any supporting
information, as described above
according to our Policy on Exclusions
(81 FR at 7231), or our request for
information in the 2020 revised
proposed rule designating critical
habitat (85 FR at 11502). As a result, we
could not initiate a review of
information for a potential exclusion
and did not exclude areas along the
Santa Cruz River from Unit 20.
Comment 13: The IBWC provided two
comments regarding the units
designated along the U.S./Mexico
border. First, they concurred with the
DHS/CBP’s request for the exclusion of
the 60-ft (18-m) Roosevelt Reservation
in California, Arizona, and New Mexico,
stating they coordinate with DHS/CBP
on vegetation clearing within the 60-ft
(18-m) Roosevelt Reservation. Second,
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IBWC recommended an additional
exclusion so that the exclusion would
extend to 150-ft (46-m) from the U.S./
Mexican border for national security
and access reasons. IBWC deferred to
the National Park Service (NPS) for
critical habitat designated along the
border in Texas (Unit 72, TX–1).
Our Response: We have excluded the
60-ft (18-m) Roosevelt Reservation from
this final designation based on DHS/
CBP’s request in support of their
national-security mission (see Comment
11 and Exclusions, Exclusions Based on
Impacts on National Security and
Homeland Security). We are not aware
of any reason why this 60-ft (18-m)
exclusion would be insufficient to
provide security and access, or why
extending the exclusion out to 150-ft
(46-m) along the border with Mexico
would be necessary for ensuring
security and access. The IBWC provided
general statements of their desire to be
excluded but no such information or
reasoned rationale that the critical
habitat designation would impact their
activities as described in our preamble
discussion in our Policy on Exclusions
(81 FR at 7231), or as requested in our
2020 revised proposed rule (85 FR at
11502). Moreover, the IBWC did not
provide information showing how
designating areas beyond the 60-foot
exclusion would harm national-security
or homeland-security interests. In the
preamble to the Policy on Exclusions,
we made clear that a Federal agency’s
reference to national-security concerns
does not in itself require an exclusion.
Rather, the Federal agency must
‘‘provide a reasonably specific
justification of an incremental impact
on national security that would result
from the designation of that specific
area as critical habitat’’ (81 FR at 7231).
In light of the absence of information
on, or reasonably specific justification
of, how designating these areas could
raise national-security concerns, we do
not consider this request to meet the
initial burden described in our policy
that the agency requesting a national
security exclusion must provide a
reasonably specific justification (81 FR
at 7231). We reiterated this requirement
to support a request for exclusion based
on national security reasons in our 2020
revised proposed rule designating
critical habitat for the western yellow
billed cuckoo (85 FR at 11503).
State Comments
Comment 14: The New Mexico
Interstate Stream Commission requested
that Unit 37 (NM–6A and NM–6B,
Middle Rio Grande) be excluded in
entirety based on the efforts of the
Middle Rio Grande Endangered Species
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Collaborative Program (Program) and
that this Program should be treated
similarly to that of the LCR MSCP and
others.
Our Response: In our analysis for
exclusions for Unit 37, we decided to
exclude the entire NM–6A (7,238 ac
(2,929 ha)) and portions of NM–6B
(11,367 ac (4,600 ha)). Exclusion of Unit
37 (NM–6A) was based on Tribal
management and partnerships through
the Santa Ana Pueblo, the Santa
Domingo Tribe, Cochiti Pueblo, and the
San Felipe Pueblo (see Exclusions,
Tribal Lands). Because the area
identified in Unit 37, NM–6B is part of
Elephant Butte Reservoir managed by
Reclamation, exclusion of portions of
that unit were based on management of
the area (see Comment 8 above and
Exclusions, Federal Lands).
In response to the Commission’s
request that the two units be excluded
in their entirety based on the Middle
Rio Grande Endangered Species
Collaborative Program (Program), we
have determined that the exclusion
would not be appropriate for several
reasons. Although we commend the
Program for investing time, effort, and
funding for conservation on the Middle
Rio Grande, the habitat conservation
efforts to date that have been
implemented are focused on instream
restoration for the Rio Grande silvery
minnow, and conservation efforts for
the western yellow-billed cuckoo have
been mostly associated with surveying,
monitoring, and non-habitat related
efforts (MRGESCP 2003, entire). In
identifying critical habitat for the
western yellow-billed cuckoo, we
identified those areas that meet the
definition of critical habitat at section
3(5)(A) of the Act. Although
management actions for one listed
species may overlap other species’
habitat or be mutually beneficial to
multiple listed species, the physical and
biological features in occupied habitat
for yellow-billed cuckoo differ from the
physical and biological features
identified for the Rio Grande silvery
minnow. We reviewed the habitat
restoration efforts conducted by the
Middle Rio Grande Endangered Fish
Recovery Program and found that the
vast majority of habitat management
actions were focused on instream water
management and fish habitat and not
western yellow-billed cuckoo habitat.
Instream habitats do not contain the
physical or biological features essential
to the conservation of the western
yellow-billed cuckoo and therefore are
not considered critical habitat. As a
result, excluding these areas based on
management for listed fish species does
not meet our criteria for exclusion.
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Comment 15: We received comments
from the Arizona Game and Fish
Department (AGFD) on the proposed
and revised proposed rule. In 2014, the
AGFD suggested removing areas from
the proposal based on the areas being in
poor condition or not supporting
breeding western yellow-billed cuckoos.
In 2020, the AGFD expressed that the
revised proposed rule was inconsistent,
did not clearly define essential habitat,
incorrectly identified western yellowbilled cuckoos as a habitat generalist,
inappropriately included migration and
stop-over habitat that inflates areas
needed, did not provide a location
where separation of rangewide breeding
habitat and southwest breeding occurs,
and places regulatory burdens on the
State. AGFD also stated that the Service
defines all habitats where the species
breeds, feeds, migrates, and stops over
as critical habitat, thus inappropriately
imposing Federal regulatory restrictions
on all landowners which will require
both Federal and State resources to
manage. AGFD commented that time
would be more appropriately spent on
other conservation programs to benefit
listed species. AGFD claimed that the
revised designation violates 16 U.S.C.
1532 (5)(C), which states that critical
habitat ‘‘shall not include the entire
geographical area which can be
occupied by the threatened or
endangered species’’ and that the
Service has arbitrarily chosen to
propose an inappropriate designation of
critical habitat, and ignore the true
intent of the purpose of critical habitat
in the revised proposed rule. The AGFD
questioned the validity of designating
critical habitat for the western yellowbilled cuckoo, if there is not a specific
habitat type that can be determined as
critical. The proposed rule described a
variety of habitat types (i.e., mesquite
bosques, tamarisk stands, xeroriparian
areas, cottonwood-willow galleries,
desert scrub and grassland drainages,
etc.) as important breeding habitat. If
these habitats are all important breeding
habitats, as described, AGFD stated that
the species should be considered a
habitat generalist and no critical habitat
should be designated (e.g., similar to the
bald eagle). If this is not the situation,
AGFD stated that the revised proposed
rule needs to be rescinded and redrafted
to remove habitat that is used
intermittently or occasionally for
breeding from the designation of critical
habitat. AGFD also stated that there are
several factual inconsistencies in the
proposed rule that require the proposed
rule be rescinded. These inconsistencies
include: An over-inflation of the
importance of tamarisk as breeding
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habitat; unverified breeding pair
information; and arbitrary and
unsupported estimation of pairs. The
AGFD recommended removing
unverified units and excluding certain
State lands under conservation
management and that the Service
should assist the States with funds for
monitoring western yellow-billed
cuckoo populations and allow partners
to explore additional methods to restore
habitat to benefit the western yellowbilled cuckoo. The AGFD expressed
concern that the economic analysis does
not fully capture economic impacts to
State agencies. The commenter noted
that many State agencies receive Federal
funds to conduct projects, including
wildlife conservation projects. Because
of that potential Federal nexus, the
commenter suggested that State agencies
could incur incremental impacts. Lastly,
the AGFD stated that the Service should
finalize its determination on the petition
to delist the species prior to finalizing
critical habitat.
Our Response: Part of our reasoning
for revising our 2014 proposed critical
habitat was in response to comments
from the AGFD on the description of the
physical and biological features needed
by the western yellow-billed cuckoo and
to remove areas of degraded habitat or
not used by the species. As a result of
AGFD’s and other comments and
information received, we removed or
reduced a number of areas from the
revised proposed designation. We
revised the description of the habitat
used by the species, including a
description of the geographic area where
southwest breeding habitat PBFs are
found. We are not required to delineate
or map a specific boundary line between
the identified PBFs as requested by the
AGFD.
The Service did not include all
habitats where the species breeds, feeds,
migrates, and stops over as critical
habitat. Our designation of critical
habitat focuses on selected areas used
for breeding by the western yellowbilled cuckoo, and as a result
purposefully does not include all
breeding areas used by the species.
We do not consider the western
yellow-billed cuckoo to be a habitat
generalist. As explained in our revised
proposed rule, western yellow-billed
cuckoos in ephemeral drainages in the
southwestern United States are found in
drainages with sparse, patchy, or dense
tree cover, high humidity, and increased
insect availability. Our description of
habitat and inclusion of additional PBFs
for the species is due to greater
specificity as to the types of habitat used
by the western yellow-billed cuckoo and
not an abandonment or reclassification
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of habitat historically described for the
species. Ephemeral drainages associated
with monsoon events are relatively
small and within a specific geographic
area in southeastern Arizona.
In response to AGFD’s questions
regarding our methodology for
determining occupancy, we followed
the Act’s requirement that we determine
occupancy based on areas that are
occupied at the time of listing. We
revised our language within the unit
descriptions to more accurately describe
occupancy status of the areas. We agree
that survey information in Arizona
identified by Corman and Magill (2000)
cannot provide definitive occupancy or
breeding information due to the survey
methodology used in the study. We also
agree that statewide protocol surveys
would provide additional information
on western yellow-billed cuckoo
distribution and breeding. We used
numerous sources to make our
determination of occupancy and
breeding status for the areas identified
as critical habitat; we determined that
these sources viewed in combination
constitute the best scientific and
commercial information available.
Under the Act, we are required to
designate critical habitat as long as we
find that the designation is prudent and
determinable as we did for the western
yellow-billed cuckoo. Given that the
western yellow-billed cuckoo in
Arizona occupies a variety of riparian
habitats and its range overlaps with
several other listed species, designating
critical habitat would potentially
provide additional funding through
section 6 of the Act and support the
State’s other conservation programs.
Tamarisk can provide habitat for the
western yellow-billed cuckoo,
especially in areas where altered river
flows have caused the native vegetation
to become degraded. We compiled the
currently known information for
western yellow-billed cuckoo’s use of
tamarisk and included information in
the rule. Western yellow-billed cuckoos
breed in tamarisk, especially if mixed
with other native habitat.
Regarding economic costs to State
agencies, exhibit 3 of the economic
analysis presents the unit incremental
administrative costs of section 7
consultation used in the economic
analysis. The total unit cost presented in
that exhibit includes costs to the
Service, other Federal agencies, and
third parties. State agencies receiving
Federal funds to conduct projects would
be considered third parties in
consultation and thus are represented in
the cost estimates produced by the
economic analysis. The analysis
estimates that the incremental costs
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incurred by third parties during the
consultation process would range from
$510 to $880 per consultation. In
addition, the analysis forecasts the
likely number of section 7 consultations
based on consultations that have
occurred since the listing of the western
yellow-billed cuckoo in 2014, which
have included third parties, such as
State agencies. Thus, State agency
consultation activity is captured in both
the projection of the number of
consultations and the unit cost of these
consultations.
We completed our status review and
published our not warranted 12-month
finding in the Federal Register on
September 16, 2020 (85 FR 57816). We
are under a court-ordered deadline to
have a final designation submitted to
the Federal Register by February 5,
2021.
AGFD recommended exclusion of
some AGFD properties under HCPs or
conservation management. In our
evaluation of areas to be excluded from
the final designation, we identified the
Upper Verde Wildlife Area, the Alamo
Lake Wildlife Area, and State lands
covered under the LCR MSCP (see
Exclusions).
Comment 16: The California
Department of Fish and Wildlife
(CDFW) provided additional
observation information for the
Sacramento Valley (Butte Creek) and for
areas adjacent to the Owens River in
California (Hogback Creek and Baker
Creek) and requested additional areas be
considered as critical habitat.
Our Response: In determining those
areas we consider essential to the
conservation of the species as critical
habitat, we developed a conservation
strategy for the western yellow-billed
cuckoo that focuses on core areas where
the western yellow-billed cuckoo breeds
consistently in relatively high numbers
or is breeding in areas which are
unique. Although the western yellowbilled cuckoo may be found in
additional areas throughout its range,
not all areas meet our definition of
essential as outlined in our conservation
strategy. Of the three sites requested by
the CDFW to include, only the Butte
Creek site has shown to include
sufficient numbers of presumably
breeding western yellow-billed cuckoos,
with the Hogback and Baker Creek sites
showing few individuals with only
intermittent use. We did not consider
the Butte Creek site to meet our
designation criteria because the area is
not part of the core breeding area.
Another nearby site that has been more
consistently occupied (Unit 63, CA–1,
Sacramento River) and has already been
identified as critical habitat meets our
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conservation goals for this geographic
area.
Comment 17: The California
Department of Water Resources (DWR)
stated that the designation in Unit 63
(CA–1) along the Sacramento River
would cause conflicts with flood
management requirements under the
Central Valley Flood Protection Act of
2008 (CVFPA). The DWR stated that
they have developed the Central Valley
Flood Protection Plan (CVFPP) to
comply with the CVFPA to improve
public safety, environmental
stewardship, and long-term economic
stability in its management of this
critical water resource infrastructure.
The DWR requested exclusion of the
area based on public safety, economic
concerns, and existing management.
Our Response: We fully support the
DWR’s mission of water resource
management and stream flows and
emergency actions necessary to protect
the public. As described above, both our
Policy on Exclusions and our revised
proposed rule indicated that entities
requesting exclusion must provide a
reasoned rationale in support of the
exclusion in order for the Service to
conduct a full exclusion analysis. Here,
DWR provided general statements of
their desire to be excluded but did not
provide information or a reasoned
rationale on the impact of the
designation to its activities for us to
initiate an analysis or support an
exclusion. As a result, we have
determined that the designation of
critical habitat would not disrupt their
activities for flood management or water
delivery because the habitat along the
Sacramento River is in areas of natural
stream conditions without flood control
or water delivery structures managed by
the DWR.
Comment 18: The California Central
Valley Flood Protection Board (CVFPB),
along with numerous other local water
agencies, expressed concern that flood
control infrastructure and facilities were
within the critical habitat boundary and
that the designation would limit the
agencies’ ability to operate and maintain
as well as improve and alter these flood
control facilities. The CVFPB identified
flood protection features such as levees,
weirs, bypasses, water control gates,
bridges, pipelines, conduits, irrigation
pumps, buildings, structures, and
underground and overhead utilities as
being those types of flood control
features of particular concern.
Our Response: Critical habitat is
defined by the existence of specific
physical or biological features for a
species that are essential to the
conservation of the species and which
may require special management
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considerations or protection. The
facilities and features described by the
CVFPB do not contain the physical or
biological features essential to the
conservation of the western yellowbilled cuckoo and thus are not critical
habitat. In our description of the
physical or biological features, we
specifically state that critical habitat
does not include humanmade structures
(such as buildings, aqueducts, runways,
roads, bridges, and other paved or
hardened areas as a result of
development) and the land on which
they are located existing within the legal
boundaries of the critical habitat units
designated for the species on the
effective date of this rule. Due to the
scale on which the critical habitat
boundaries are developed, some areas
within the units’ legal boundaries may
not contain the physical or biological
features and therefore are not
considered critical habitat.
Comment 19: Colorado Department of
Natural Resources, Colorado Riverfront
Commission, Town of Palisade, Delta
County Commissioners, Montrose Board
of County Commissioners, City of
Montrose, Gunnison County, Grand
Valley Water Users Association/Orchard
Mesa Irrigation District/Ute Water
Conservancy District, Associated
Governments of Northwest Colorado,
and Club 20 asserted that designating
critical habitat in Colorado is not
appropriate due to being on the fringe
of the DPS’ range. They stated that areas
where western yellow-billed cuckoo are
routinely detected are limited and most
detections are sporadic, representing
single or very small numbers of
individuals with limited documentation
of recent breeding in western Colorado;
therefore, these units will not make a
significant contribution towards
conservation of the species.
Our Response: Although limited
breeding is known to occur in Colorado,
western yellow-billed cuckoo
consistently use the areas identified in
Units 68 and 69 (CO–1 and CO–2).
These areas fall into category 3 of our
conservation strategy as they are large
river systems outside of the Southwest
that occur in different ecological
settings that are consistently being used
as breeding areas, thus contributing to
the ecological representation and
redundancy of the species. Maintaining
breeding areas throughout the range of
the species allows year-to-year
movements to take advantage of any
spatial and temporal changes in habitat
resources and food abundance. These
areas are occupied and contain the PBFs
essential to the conservation of the
species and which may require special
management.
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Comment 20: The Colorado
Department of Natural Resources, Mesa
County Commissioners, Grand Valley
Water Users Association/Orchard Mesa
Irrigation District/Ute Water
Conservancy District, and Club 20
strongly concur with the proposed
exclusion of the Walter Walker State
Wildlife Area (SWA), Colorado River
Wildlife Management Area, and James
M. Robb State Park from critical habitat.
They additionally request exclusion of
the Leatha Jean Stassen SWA (near the
Walter Walker SWA) and Tilman
Bishop SWA on eastern edge of Unit 68.
Our Response: Based on our
consideration of proposed exclusions
and land management information
received from Colorado Parks and
Wildlife and Colorado Department of
Natural Resources, we found that the
James M. Robb Colorado River Sate Park
(CRSP), and the Leatha Jean Stassen,
Walter Walker, and Tilman Bishop
SWAs are all managed in ways that
promote cottonwood and willow growth
while minimizing nonnative plants and
noxious weeds, beneficial to western
yellow-billed cuckoo. Additionally, the
exclusion of these areas is likely to be
beneficial in maintaining a working
partnership with CPW. As a result of
our exclusion/inclusion benefits
analysis, the Secretary has determined it
appropriate to exclude these areas from
the designation. See Exclusions, Private
or Other Non-Federal Conservation
Plans or Agreements and Partnerships,
in General.
Comment 21: Colorado Department of
Natural Resources (along with other
commenters) stated that rivers in
Colorado and Utah are already managed
to benefit western yellow-billed cuckoo
due to the existing recovery program
and designated critical habitat for listed
fish (Colorado pikeminnow
(Ptychocheilus Lucius), razorback
sucker (Xyrauchen texanus), bonytail
(Gila elegans), and humpback chub
(Gila cypha)), such that critical habitat
does not need to be designated. Several
commenters stated that the Upper
Colorado River Endangered Fish
Recovery Program and San Juan River
Basin Recovery Implementation
Program were not cited in the proposed
rule as providing protections for
western yellow-billed cuckoo and that
areas identified as critical habitat for the
western yellow-billed cuckoo should be
excluded based on implementation of
the recovery program.
Our Response: Areas along the San
Juan River were not included in the
2020 revised proposed designation and
are not included in this final
designation. In identifying critical
habitat for the western yellow-billed
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cuckoo, we identified those areas
occupied by the species at the time of
listing, identified the physical and
biological features essential to
conservation of the species, and then
determined which of these features
within identified areas may require
special management considerations or
protections. Although management
actions for one listed species may
overlap habitat or be mutually beneficial
to multiple listed species, we identified
the specific physical and biological
features and geographic locations for
yellow-billed cuckoo for this
designation. The physical and biological
features and occupied habitat for
yellow-billed cuckoo differ from the
physical and biological features
identified for the four listed fish. We
reviewed the habitat restoration efforts
conducted by the Upper Colorado River
Endangered Fish Recovery Program and
found that the vast majority of habitat
management actions were focused on
instream water management and fish
habitat and not western yellow-billed
cuckoo habitat. As a result, excluding
these areas based on management for
listed fish species does not meet our
criteria for exclusion.
Comment 22: Colorado Department of
Natural Resources requested further
consideration of Colorado conservation
efforts that focus on private lands,
stating that critical habitat designation
may reduce landowner’s willingness to
work voluntarily to benefit a species.
The Department provided a list of
conservation projects that have been
implemented in partnership by
numerous Federal and private entities
that have helped to conserve western
yellow-billed cuckoo and its habitat.
Our Response: The list of wetland and
riparian habitat projects from Partners
for Fish and Wildlife, Natural Resources
Conservation Service (NRCS) and other
local environmental groups and private
landowners shows eight projects since
the listing of western yellow-billed
cuckoo, two of which are in Mesa
County, Colorado. Because the programs
have been working in partnership and
implementing and coordinating such
conservation efforts that are partly
coordinated by the Service and NRCS,
we do not expect private landowner
participation in future conservation
efforts will be curtailed as a result of
designating critical habitat. As shown
by the implementation of the various
projects, the program has been
successful in getting private and nonFederal partners to conserve sensitive
species and their habitat.
Comment 23: The Colorado
Department of Natural Resources and
Club 20 recommend exclusions of
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critical habitat Unit 37 (NM–6B)
because the area has already been
analyzed for effects to yellow-billed
cuckoo in a 2016 biological opinion for
Reclamation operations at Elephant
Butte Reservoir, New Mexico.
Additionally, an existing management
plan (2012) is working effectively. These
commenters also recommended
exclusion of critical habitat Unit 39
(NM–8A and NM–8B) and that
Reclamation extends their 2012
management plan to cover this area.
Our Response: The proposed critical
habitat within Unit 37, NM–6B
(Elephant Butte Reservoir) will be
excluded from critical habitat due to
Reclamation’s management plan to
benefit western yellow-billed cuckoo.
Tribal lands within Unit 37 (NM–6A)
will also be excluded due to Tribal
management for western yellow-billed
cuckoo and existing partnerships with
the Service. We are also excluding Unit
39 from critical habitat due to existing
management. See Exclusions (Federal
Lands and Tribal lands).
Comment 24: The State of Idaho’s
Office of Species Conservation (OSC)
(and other private water users)
commented in 2014 and again in 2020.
The commenters provided
modifications and corrections to the
acreages identified in the proposed rule.
They stated that protections afforded the
western yellow-billed cuckoo as a
threatened species and other current onthe-ground measures render the critical
habitat designation unnecessary; areas
in Idaho are not essential to the
conservation of the species; the
Service’s current information on the
status and occupancy of western yellowbilled cuckoo in Idaho is severely
lacking; and a recovery plan should be
developed before critical habitat is
determined. They further stated that
they have concerns that the designation
would change water management,
agricultural, and irrigation activities
along the Snake River or its tributaries
and that the American Falls Dam and
Reservoir’s operations and associated
transmission lines, humanmade
structures and rights-of-way would be
affected by the designation. The
commenters stated that special
management is not necessary as
measures are already in place and that
it is essential to preserve the 2004 Snake
River Agreement.
The OSC stated that the Service
should leverage existing collaborative
efforts and implement landscape-scale
partnerships and incentivize
ecologically-based cooperative water
management practices to conserve
riparian and western yellow-billed
cuckoo habitats while providing
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balanced management of agricultural
irrigation, managed aquifer recharge,
municipal uses, and flood control. The
OSC commented that if areas are
designated, the Service should expand
the boundaries of the critical habitat to
correspond to Federal lands and only
include non-Federal lands with
landowner discretion.
Our Response: We have revised the
final rule to reflect information
provided by the OSC regarding acreages
and land ownership. We do not agree
with the commenters’ assessment that
areas in Idaho are not essential to the
conservation of the species and should
not be designated as critical habitat. We
developed a conservation strategy to
assist in determining areas essential to
the conservation of the species and
determined that the areas in Idaho are
occupied, contain the PBFs essential to
the conservation of the species, meet the
goals of the conservation strategy, and
follow our criteria for designation.
These areas in Idaho fall into category
3 of our conservation strategy as they
are large river systems outside of the
Southwest that occur in different
ecological settings that are consistently
being used as breeding areas, thus
contributing to the ecological
representation and redundancy of the
species. Maintaining breeding areas
throughout the range of the species
allows year-to-year movements to take
advantage of any spatial and temporal
changes in habitat resources and food
abundance. We based our occupancy
and use of the areas in Idaho on State
natural heritage data and published
articles and survey reports including
Reynolds and Hinckley (2005, entire)
and Idaho Department of Fish and Game
(2013–2014, entire), as the best available
data that have documented consistent
use of the areas designated as critical
habitat in Idaho. In the proposed and
this final rule we have defined our
position and consideration of
occupancy (see Selection Criteria and
Methodology Used to Determine Critical
Habitat).
The designation of critical habitat
requires Federal agencies to consult
with the Service on activities they
conduct, permit, or fund. Because the
areas being designated are occupied, the
Federal agencies managing water storage
and delivery infrastructures already
must ensure that their operations do not
jeopardize western yellow-billed cuckoo
due to the threatened status of the
species. Our economic analysis did not
identify significant additional costs
associated with the designation of
critical habitat as the measures that may
be required would likely be the same as
those necessary under the jeopardy
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analysis other than administrative
analysis of any adverse modification
review for the agencies’ actions.
Collaborative multi-stakeholder
cooperative partnerships can be
important to long-term conservation of
sensitive species and their habitats
while still allowing for the interests of
stakeholders and needs of the public to
continue. However, we are required to
designate critical habitat for threatened
and endangered species where we find
the designation to be both prudent and
determinable as is the case with the
western yellow-billed cuckoo. In our
development of critical habitat, we
consider designating those areas with
the PBFs essential to the conservation of
the species and not based on land
ownership, unless limiting the
designation to just Federal lands
provides for the conservation of the
species. In our proposed rule, we
solicited the public for information
regarding potential exclusion of areas
based on management plans or other
conservation efforts including
partnerships and we engaged with our
partners regarding excluding private
lands within the units identified in
Idaho. We received a request to only
include private lands with landowner
consent from OSC; however, we
received no information from private
landowners to exclude their specific
lands in Idaho.
We do not agree that specific areas
and essential features within critical
habitat do not require special
management considerations or
protection because adequate protections
are already in place. In Center for
Biological Diversity v. Norton, 240 F.
Supp. 2d 1090 (D. Ariz. 2003), the court
held that the Act does not direct us to
designate critical habitat only in those
areas where ‘‘additional’’ special
management considerations or
protection is needed. If any area
provides the physical or biological
features essential to the conservation of
the species, even if that area is already
well managed or protected, that area
still qualifies as critical habitat under
the statutory definition if special
management is needed. The final rule
explicitly states that manmade features
such as irrigation structures and
facilities are excluded from the
designated critical habitat. However,
rights-of-way are agreements that
impose a status on the use of lands
rather than describing the condition of
the land as human-made structures. As
such, rights-of-way are not excluded
from designated critical habitat.
Comment 25: The New Mexico
Department of Agriculture, Middle Rio
Grande Conservancy District, New
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Mexico Interstate Steam Commission,
and the Rio Grande Compact
Commission had comments on the
revised proposed Unit 37 (NM–6A and
NM–6B). They stated that in many cases
the designation would not produce any
additional benefits for the western
yellow-billed cuckoo than already
resulting from issuance and
implementation of the Service’s 2016
biological opinion (Service 2016a,
entire) for water operations and river
maintenance issued to Reclamation.
These entities have also been pursuing
other conservation actions in the
proposed area through the Middle Rio
Grande Endangered Species
Collaborative Program. They would like
the Service to consider the exclusion of
the Elephant Butte Reservoir operating
pool from designation as critical habitat.
The commenters also requested that the
draft NEPA and draft economic analysis
developed for the revised proposed
designation be made available for
review.
Our Response: Partly as a result of the
2014 comments, we revised the
previously identified Unit 52 (NM–8)
(2014) (Unit 37 (2020)) to remove a
segment of the river near Albuquerque,
NM, as not constituting critical habitat
where there is a significant break in the
habitat for the western yellow-billed
cuckoo. Though this area has had
incidental detections of western yellowbilled cuckoos, breeding activity has not
been confirmed by formal surveys since
the species was listed. This area was
removed from proposed critical habitat,
which resulted in splitting the critical
habitat into two units (NM–6A and NM–
6B). We conducted an exclusion
weighing analysis and found that the
benefits of exclusion outweigh the
benefits of inclusion and excluded the
majority of Elephant Butte Reservoir as
well as areas within Tribal lands from
this final designation (see Comment 8
and Exclusions, Tribal Lands and
Federal Lands). The draft economic
analysis (IEc 2019 and IEc 2020 entire)
and draft NEPA analysis (Service 2019d)
were posted online at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011 under
supporting documents or on the
Sacramento Fish and Wildlife Office’s
website at https://www.fws.gov/
sacramento.
Comment 26: In 2014, the New
Mexico Interstate Stream Commission
and New Mexico Department of Game
and Fish (NMDGF) questioned the
source of western yellow-billed cuckoo
occupancy data for the Gila, San
Francisco, Mimbres and San Juan Units.
The New Mexico Interstate Stream
Commission also requested additional
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information as to how State estimates
for western New Mexico were
established. On the Rio Grande, the
Commission also noted discrepancies in
1986 study results by Howe (1986),
when compared to the limited survey
effort completed by Reclamation from
2006–2010, and stated that the western
yellow-billed cuckoo population is
larger than estimated. The NMDGF also
recommended removing the areas along
the San Juan River (2014 Unit 46, NM–
1) and Mimbres River (2014 Unit 49,
NM–6) (now identified as Unit 34, NM–
3A) from the designation due to low
frequency of western yellow-billed
cuckoo detections.
Our Response: Occupancy data for
New Mexico was based on a variety of
sources. These include formal surveys
conducted by permitted biologists,
incidental detection data collected and
verified by online data from the Cornell
Lab of Ornithology (2020), and
information submitted to the Service
from the State Heritage Program. State
estimates for western New Mexico are
based on the observations from the
sources above. In this final critical
habitat designation, we have updated
our estimated numbers for the State,
which is a larger population than
originally estimated in 2014, after
several years of increased survey effort.
After reevaluation and prioritizing units
of greatest conservation value, we agree
that the low frequency of western
yellow-billed cuckoo observations on
the San Juan River lead us not to
consider the area as critical habitat due
to our conservation strategy and criteria
for determining areas essential to the
conservation of the species. The
Mimbres River area was also
reevaluated and had recent formal or
incidental observations of western
yellow-billed cuckoos within the area
identified in 2014 as well as additional
locations outside the unit. As a result,
the areas we are designating along the
Mimbres River now include the two
areas identified in the revised proposed
rule (Unit 34, NM–3A and NM–3B).
Comment 27: The New Mexico
Department of Agriculture (NMDA)
requested that the Service clearly define
what criteria it uses to differentiate
between ‘‘grazing’’ and ‘‘overgrazing.’’
NMDA also requests the scientific and
peer-reviewed sources of data that has
led the Service to conclude that
‘‘overgrazing’’ may be a threat to
potential critical habitat.
Our Response: As stated in the 2014
final listing rule determining threatened
status for the western yellow-billed
cuckoo (79 FR 59992, October 3, 2014),
well-controlled grazing activity can be
compatible within riparian zones and in
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western yellow-billed cuckoo habitat
depending on the measures
implemented for the grazing activity.
The amount of management depends on
the sensitivity of the habitat at any given
location and would most likely need to
be managed on a site-by-site basis. For
example, a grazing regime used on
Audubon California’s Kern River
Preserve in the South Fork Kern River
Valley limits grazing to outside the
growing season (October to March). This
time restriction allows for regeneration
of willows and cottonwoods and
precludes the tree browsing and highlining that often accompanies heavy
summer (growing season) grazing. Given
that ‘‘grazing’’ versus ‘‘overgrazing’’ may
vary on a site-by-site basis, there is no
clear definition, but generally, if an area
with grazing activity degrades riparian
habitat attributes and prevents longterm health and persistence of these
systems, it is considered overgrazing.
Comment 28: In 2014, the NMDGF
stated that the Service should further
describe vague habitat descriptions in
the Physical and Biological Features
section and within the unit descriptions
themselves.
Our Response: In our 2020 revised
proposed rule (85 FR 11458, February
27, 2020) and this final rule, we further
refined the PBFs for western yellowbilled cuckoo and information regarding
habitat within the unit descriptions.
Comment 29: The NMDGF requested
that all State lands be excluded based
on their State Wildlife Action Plan
(Action Plan or SWAP) and the NMDA
supports the exclusion of all lands in
New Mexico from the final critical
habitat designation. The NMDGF
identified areas within the Bernardo
WMA that do not have the PBFs and
should not be considered as critical
habitat. The NMDA stated that State
lands are often involved in collaborative
restoration projects involving funding
from Federal agencies. Designating State
lands as critical habitat could
complicate interagency cooperation and
hinder the implementation of
restoration projects that would benefit
the western yellow-billed cuckoo.
Our Response: We re-evaluated the
critical habitat boundary in the
Bernardo WMA within Unit 37 (NM–
6B) and agree with the State’s
assessment that a portion of the unit at
the southernmost extent of Bernardo
WMA does not contain the PBFs for the
western yellow-billed cuckoo; therefore,
some areas within Bernardo WMA were
removed from the designation.
In this final rule, we excluded State
lands that have management measures
in place to protect habitat for the
western yellow-billed cuckoo (see
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Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General). We value our partnership with
New Mexico State agencies and
appreciate the conservation efforts
associated with the NMDGF State
Wildlife Action Plan and coordination
with the Service on endangered and
threatened wildlife conservation
measures and commitments through the
consultation process. State Wildlife
Action Plans, including the NMDGF
State Wildlife Action Plan (NMDGF
SWAP 2016, entire), are planning
documents that provide a high level
overview of the status of species and
habitats within each State and are not a
plan which specifically implements
conservation measures, provides
management direction, or ensures
specific project or species funding. In
some cases, these conservation efforts
identified in State Wildlife Action Plans
may aid in general riparian health,
which in some cases, indirectly benefit
western yellow-billed cuckoos.
However, the NMDGF and the NMDA
did not provide a reasoned explanation
that the benefits of exclusion outweigh
the benefits of inclusion in support of a
request for exclusion. As a result, we
did not conduct an exclusion analysis
specific to New Mexico State lands. In
addition, State agencies receiving
Federal funds to conduct projects would
be considered third parties in
consultation and thus are represented in
the cost estimates produced by the
economic analysis. The economic
analysis found that the incremental
economic costs associated with critical
habitat to third parties such as States
would be minimal.
Tribal Comments
In accordance with our requirements
to coordinate with Tribes on a
government-to-government basis, we
solicited information from and met with
members of the Fort Mojave Indian
Tribe; Colorado River Indian
Reservation; Fort Yuma Indian
Reservation; Cocopah Tribe; YavapaiApache Nation; Hualapai Indian Tribe;
San Carlos Reservation; Navajo Nation;
Santa Clara, Ohkay Owingeh and San
Ildefonso Pueblos; Cochiti, Santo
Domingo, San Felipe, Sandia, Santa Ana
and Isleta Pueblos; Shoshone-Bannock,
Fort Hall Reservation; the Cachil DeHe
Band of Wintun Indians; and the Ute
Tribe of the Uinta and Ouray
Reservations regarding the designation
of critical habitat for the western
yellow-billed cuckoo. The comments we
received from the Tribes included
revisions to Tribal ownership and
requests to be excluded from the
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designation based on their management
and conservation of western yellowbilled cuckoo habitat, that the
designation would infringe on Tribal
sovereignty and directly interfere with
Tribal self-government, and that it
would have a disproportionate
economic impact on Tribes.
We have reviewed their requests and
excluded all the Tribal lands from the
final designation under section 4(b)(2)
of the Act. See Exclusions (Tribal
Lands) for those areas we excluded
under section 4(b)(2) of the Act from the
final designation. Individual Tribal
comments requesting exclusion from the
final designation under Section 4(b)(2)
of the Act are addressed below in the
Exclusions (Tribal Lands) section and
are not addressed further here.
Comment 30: The Gila River Indian
Community (GRIC) and others
expressed concern about whether
critical habitat would impact water
availability and management or prevent
future water exchanges for Tribal
communities. The GRIC was specifically
concerned with the Salt River Reservoir
systems identified in the Salt River
Project (SRP) and if existing agreements
allow for ‘‘storage credits’’ to be
managed according to water delivery
needs and existing water operations.
The GRIC also provided comments
regarding the economic impact of
potential curtailment of water delivery
should critical habitat be designated
outside Tribal lands.
Our Response: Because all Tribal
lands have been excluded from the final
critical habitat designation, any
conservation activities on Tribal Lands
that would be required are based on the
listing of the western yellow-billed
cuckoo. For critical habitat off Tribal
lands, we do not anticipate water
operations or water delivery to Tribes to
be significantly impacted by the
designation of critical habitat. Section 3
of the economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation and has determined that the
impacts of critical habitat would be
minimal. In addition, of the reservoirs
within the SRP, we are excluding the
areas identified near Roosevelt Lake
through SRP’s Roosevelt Lake HCP
(2002) and areas around and
downstream of Horseshoe Reservoir
through SRP’s Horseshoe and Bartlett
Reservoirs HCP (SRP 2008, entire).
Horse Mesa Dam, Mormon Flat Dam,
and Stewart Mountain Dam are not
within cuckoo critical habitat on the
Salt River. Other areas within the SRP
were not identified as critical habitat.
Because the areas identified within the
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SRP area are no longer critical habitat,
we would not expect future water
delivery or exchanges to be impacted by
the designation. See Exclusions, Private
or Other Non-Federal Conservation
Plans Related to Permits Under Section
10 of the Act and Exclusions (Tribal
Lands).
Comment 31: In 2014, the Sandia
Pueblo requested the exclusion of
critical habitat within their lands based
on the mandate established in
Secretarial Order 3206, their history of
restoration efforts, the Pueblo of
Sandia’s Bosque Management Plan, and
section 4(b)(2) of the Act.
Our Response: In 2020, we revised the
critical habitat boundary of Unit 37
(NM–6B) near Albuquerque, New
Mexico, which included the Sandia
Pueblo. Because the area contained a
significant break in the type of occupied
habitat due to the area being near
development and not meeting our
criteria for designation, the area that
contained Sandia Pueblo lands was not
included in the 2020 revised proposed
designation. Although this area has had
a limited number of detections of
western yellow-billed cuckoos, breeding
activity has not been confirmed by
formal surveys since the species has
been listed. This assessment has been
further supported by the Sandia
Pueblo’s historical and multi-year
survey effort.
Comment 32: One commenter noted
that the Ute Indian Tribe relies on
revenues from oil and gas development
as the primary source of funding for its
governmental services. This commenter
stated that, if the listing and critical
habitat designation prevent the Tribe
from developing its oil and gas
resources, the Tribe could lose $2.3
million per well annually.
Our Response: All Ute Indian Tribe
lands were excluded from the final
designation. The commenter also refers
to costs of listing for the yellow-billed
cuckoo. Section 4 of the Act prohibits
the consideration of economic impacts
in decisions about whether to list a
species as endangered or threatened.
The listing decision made in 2014, was
based solely on best scientific and
commercial data available on the status
of the species, after taking into account
efforts by States or foreign nations to
protect the species (section 4(b)(1) of the
Act). Thus, the economic analysis does
not quantify the likely economic effects
of our previous decision to list the
western yellow-billed cuckoo as a
threatened species.
For activities that have a Federal
nexus on the Ute Reservation, the
consultation history for impacts to the
species has been minimal. The
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economic analysis estimated that the
annual rate of expected consultations
for the entire Unit 70 would be less than
one per year (0.8) (IEc 2020, Exhibit A–
2). As result of excluding the Tribal
lands, we would expect even fewer
consultations for the area.
Public Comments
Comment 33: Several commenters
stated the Service should not rely on the
PBF of having an adequate prey base to
designate critical habitat because the
Service does not adequately address
how management practices might affect
the prey base.
Our Response: In determining critical
habitat, we are required to identify the
physical or biological features essential
to conservation of the species. Prey
availability is an important component
western yellow-billed cuckoos use to
select areas for breeding. However, we
did not identify and select areas as
critical habitat based on this feature
alone; in selecting areas as critical
habitat we relied on our conservation
strategy which focused on breeding
areas with appropriate habitat structure.
This PBF is designed to ensure that
project proponents consider effects to
the prey base in any considerations of
how their actions might affect the
function of the critical habitat in
supporting western yellow-billed
cuckoos. As such, we conclude that it is
informative and appropriate to include
as a PBF in the final designation.
Comment 34: Multiple commenters
expressed concern for designating
critical habitat in areas where the
species has not been recently
documented and which we could not be
certain were occupied.
Our Response: We based our
designation on the best scientific and
commercial information available using
specific criteria for determining areas to
designate as critical habitat. We have
determined that all units being
designated are occupied by the western
yellow-billed cuckoo. In determining
occupancy of breeding areas and critical
habitat for the western yellow-billed
cuckoo, we obtained occurrence
information from surveys, reports, State
Heritage data, published literature and
online information (Cornell Lab of
Ornithology). For the 2014 proposed
rule, we reviewed information between
1998 and 2014 to determine whether the
area was occupied at the time of listing.
For the 2020 revised proposed rule,
based on new data we received through
2017, we proposed additional units we
consider to have been occupied at the
time of listing using new data received
through the 2017 breeding season. To
further support designation of these
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units, we used additional occupancy or
breeding data up until the 2020
breeding season. See Criteria Used To
Identify Critical Habitat for a discussion
of the information and criteria we used
on determining occupancy.
Comment 35: Multiple commenters
requested exclusions for various
publicly managed lands. One of these
requests was to exclude Black Draw,
part of San Bernardino National
Wildlife Refuge in Arizona. Private
landowners also requested exclusion for
their own lands, claiming that they are
already managing lands that maintain
the species’ habitat but did not provide
information regarding their management
or specific land ownership information.
Our Response: For exclusion of an
area from critical habitat designation
based on management, we look to our
Policy on Exclusions that outlines
measures we consider when excluding
and areas from critical habitat (81 FR
7226). Black Draw, a part of the San
Bernardino National Wildlife Refuge,
provides important habitat for the
western yellow-billed cuckoo. In order
for us to consider and conduct an
exclusion analysis, stakeholders should
provide information or a reasoned
rationale to support their request.
Without this information, we did not
conduct a weighing analysis to
determine whether the benefits of
exclusion outweigh the benefits of
inclusion. For those Federal, State,
Tribal and public lands where we had
such information, we conducted an
exclusion analysis Please see the
Exclusions section for areas we are
excluding from the final designation.
Comment 36: Some commenters
stated that areas identified as critical
habitat did not contain the physical or
biological features (PBFs) and therefore
are not essential and should not be part
of the final designation.
Our Response: In our revised
proposed rule, we reevaluated the areas
proposed as critical habitat to focus on
areas that contain the PBFs and are
consistently occupied during the
breeding season. We used the best
scientific or commercial information
available to determine habitat for and
use by the western yellow-billed
cuckoo. During our process of analyzing
the PBFs, care was taken to consider the
areas chosen using as consistent an
approach as possible, despite the
differences in habitat and the timing of
when areas are used by the species. In
some instances, several areas of habitat
if in near proximity to each other were
grouped together as a single area.
Within the boundaries of critical
habitat, areas that do not contain the
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PBFs are not considered critical habitat,
even if they are within the boundary.
Comment 37: One commenter stated
that the LCR MSCP maps in the revised
proposed rule do not include some
important revegetation sites occupied by
western yellow-billed cuckoos. The
commenter provided the total additional
area of the revegetation sites within the
LCR MSCP planning area.
Our Response: The proposed rule and
revised proposed rule were based on the
most current information we had on
boundaries of areas for the LCR MSCP
and may not have included more recent
revegetation sites. As a result of
reviewing whether we should exclude
the areas being managed under the LCR
MSCP, we took into consideration the
additional restored sites as part of our
benefits of exclusion analysis. We have
determined to exclude the entire area
being managed under the LCR MSCP.
See Exclusions, Private or Other NonFederal Conservation Plans Related to
Permits Under Section 10 of the Act.
Comment 38: One commenter claims
the inclusion of critical habitat for the
western yellow-billed cuckoo in Unit 19
(AZ–17, Upper Cienega Creek), Unit 24
(AZ–22, Lower Cienega Creek), or Unit
58 (AZ–46, Gardner Canyon) will result
in an economic burden for their
activities. They also reasons the Service
has already analyzed the effects of the
Rosemont Project on the western
yellow-billed cuckoo habitat in the
project area during a section 7
consultation completed in 2016, and
that because the habitat is already
protected under the jeopardy standard,
the area should not be included. The
commenter also stated that the critical
habitat within and in the vicinity of the
Rosemont Project cannot be essential to
the conservation of the species. Other
commenters expressed concern about
the development of Rosemont Copper
Mine and that the critical habitat in the
area is important for western yellowbilled cuckoos and other species.
Our Response: As we discussed in our
draft economic information in our
revised proposed rule (IEc 2019, entire;
IEc 2020, entire) and our Incremental
Effects Memo (Service 2019c, entire), we
do not expect significant economic
impacts associated with the designation
of critical habitat above those associated
with listing of the species as threatened,
due to the areas being occupied by the
species. Our review of the comments
and claims raised do not change our
position that the incremental economic
impacts associated with critical habitat
would be limited to administrative costs
associated with completing adverse
modification analyses for Federal
actions (activities, permitting, funding)
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occurring in critical habitat. In general,
conservation measures resulting from
the species’ listing status under the Act
are expected to sufficiently avoid
potential destruction or adverse
modification of critical habitat.
In 2016, we issued a biological
opinion to the USFS for Rosemont
Copper’s proposed activities (Service
2016b, entire). We subsequently
received notification from the USFS that
they had suspended all activities under
the Rosemont Project Mine Plan of
Operations due to litigation and court
ruling to halt the project (Dewberry
2019, entire; Helminger 2019). In 2019,
we suspended our 2016 biological
opinion and its accompanying
incidental take statement (Service
2019b, entire). On February 10, 2020,
we received an adverse ruling on our
biological opinion (Case 4:17-cv-00475–
JAS Document 291). The USFS and
Corps did not request an appeal of this
decision. As a result of these court
rulings, Rosemont’s claim (James 2020,
entire) that impacts to critical habitat
have already been analyzed under the
jeopardy standard is not correct. In
addition, review of critical habitat is not
reviewed under the jeopardy standard
but rather under the different adverse
modification standard. Should
Rosemont Copper wish to resume
seeking Federal permits for their
activities, the Federal agencies would
need to consult with the Service and
obtain a new biological opinion for
incidental take and adverse
modification review.
In reviewing areas to designate critical
habitat, we used the best scientific and
commercial information available to
determine those areas that are occupied
and contain the physical or biological
features essential to the conservation of
the species. Western yellow-billed
cuckoo use of the area during the
breeding season is well documented and
the area meets our criteria and
conservation strategy for designation.
Comment 39: Permittees and others
associated with the Service-approved
section 10 Pima County Multi-Species
Conservation Plan (MSCP), requested
that the critical habitat within the HCPs
planning area be designated as critical
habitat.
The commenters expressed their
confidence in the ability to deliver
conservation benefit to the western
yellow-billed cuckoo by way of the
mitigation, management, and
monitoring strategies in the MSCP.
However, the commenters did state that
large-scale Federal actions outside of
Pima County’s control could have
significant negative impacts on species
and lands under their management. The
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commenters continued, stating that the
designation of critical habitat would
require Federal agencies to use an
additional standard of review when
conducting section 7 consultations with
the Service for federally permitted
activities (such as mines and
transmission lines) not controlled by
Pima County. The commenters stated
that keeping the area as critical habitat
would further serve to benefit the
conservation of species and its habitat
(Huckelberry 2014, entire). The
commenters opined that maintaining
the western yellow-billed cuckoo
critical habitat on Pima County or Pima
County Regional Flood Control District
managed lands would not impact their
section 10(a)(1)(B) permit or their
partners. The commenters therefore
requested that critical habitat for the
western yellow-billed cuckoo be
maintained on County- and Districtowned and leased properties and on the
Federal lands within Las Cienegas
National Conservation Area.
Our Response: In proposing revised
critical habitat in 2020 for the western
yellow-billed cuckoo, we identified
approximately 9,191 ac (3,719 ha) of
land within the Pima County MSCP that
occurred in numerous proposed units.
We are honoring the commenters’
requests not to exclude these areas from
the final designation.
Comment 40: We received many
comments on Unit 16 (AZ–14, Upper
San Pedro River), which includes a
portion of the San Pedro Riparian
National Conservation Area (SPRNCA)
managed by the Bureau of Land
Management (BLM), ranging from
support for inclusion, exclusion,
exemption, or removal. One commenter
provided support of inclusion in part
because it has western yellow-billed
cuckoo conservation goals within this
unit as part of its Sonoran Desert Multispecies Conservation Plan (Huckelberry
2014, entire). Private individuals and
environmental organizations also
supported inclusion. Multiple
commenters requested exclusion or
removal of part or all of this Unit for
various reasons, such as the area already
having Federal protection, that it was
not essential, and not wanting critical
habitat on or near their private lands.
Our Response: As noted above,
consideration of possible exclusions
from critical habitat are in the Service’s
discretion and generally follow our
Policy on Exclusions (81 FR 7226). With
respect to Unit 16, we determine that
the requesters have not presented
information or reasoned rationale that
supports a conclusion that the benefits
of exclusion outweigh the benefits of
inclusion. Breeding western yellow-
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billed cuckoos have long occupied the
area within Unit 16. This area supports
the largest population of breeding
western yellow-billed cuckoos along
and adjacent to a free-flowing river in
Arizona and has a high conservation
value. Areas such as this were
specifically identified as part of our
conservation strategy for designating
critical habitat. Western yellow-billed
cuckoos have been documented as
breeding along the cottonwood-willow
riparian woodland corridor and in the
adjacent mesquite and desert scrub
woodland that expands laterally into the
broad floodplain. Threats to the
physical or biological features in this
Unit are ongoing and require constant
management to protect from actions that
affect the species and its habitat. The
Service has engaged in many
consultations for proposed actions
within and outside of San Pedro
Riparian National Conservation Area
(SPRNCA) in the San Pedro River Basin
that affect cuckoos and habitat within
SPRNCA. Designation of critical habitat
in this Unit ensures that effects of
proposed Federal actions to western
yellow-billed cuckoo habitat are
considered and fully evaluated for
potential impacts. The designation of
critical habitat may also help increase
agency and private land stewardship
through partnerships and curtail
unauthorized activities that degrade
habitat such as trespass grazing and offhighway vehicle incursions. See
Exclusions Based on Impacts on
National Security and Homeland
Security for discussion of Fort
Huachuca.
Comment 41: Multiple commenters
stated that the geography of the species
does not warrant labeling the western
yellow-billed cuckoo as a distinct
population segment, therefore delisting
is warranted, and it is not necessary to
designate critical habitat.
Our Response: On September 16,
2020, we published in the Federal
Register a not warranted 12-month
finding on the petition to delist the
western yellow-billed cuckoo (85 FR
57816). In that finding, we reaffirmed
our previous determination that the
western yellow-billed cuckoo
constitutes a valid distinct population
segment. Thus, we are required to
designate critical habitat for all
threatened or endangered species as
long as we find the designation to be
prudent and determinable, as is the case
for the western yellow-billed cuckoo.
We further note that we are under court
order to finalize critical habitat for the
western yellow-billed cuckoo critical
habitat and do not have the discretion
not to do so.
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Comment 42: Several commenters
stated that the western yellow-billed
cuckoo is a habitat generalist or the
designation of desert scrub, grasslands,
mesquite, mesquite bosques, and
cottonwood galleries as ‘‘critical’’ is
wrong.
Our Response: The western yellowbilled cuckoo uses a variety of riparian
and xeroriparian habitat within its
range, but they are not habitat
generalists. All the vegetation types are
habitats with an overstory and
understory component that occur in
drainages. Based on comments
regarding the PBFs in the 2014 proposed
rule, we sought to better define the
habitat used by the species. Western
yellow-billed cuckoo breeding habitat is
restricted to riparian woodlands along
riparian drainages rangewide and, in the
southwestern United States and
northwestern Mexico, they also breed in
more arid and sometimes narrower or
patchier tree-lined drainages. In
southeastern Arizona, they breed in
tree-lined habitat in ephemeral
drainages where humidity is higher than
in other parts of the Southwest.
Comment 43: A few commenters
stated that the proposed rule does not
provide a solid justification for why
areas proposed for critical habitat are
essential. One commenter also stated
there was insufficient justification for
why areas were removed from the 2014
proposed critical habitat and why areas
previously considered essential were
eliminated.
Our Response: Revisions from the
2014 proposal are in part based on
comments received and development of
our conservation strategy for
determining critical habitat. In our
revised proposed and this final rule, we
describe our rationale on why we
consider the areas identified as essential
to the conservation of the species. The
conservation strategy takes into
consideration numerous conservation
biology practices and approaches for
conserving sensitive species and their
habitat. The areas identified contain the
PBFs we considered essential to the
conservation of the species under
section 3(5)(A)(i) of the Act. In the
strategy, we focused our designation on
breeding areas that showed consistent
occupancy and have records of
numerous breeding pairs over time.
Areas with limited, low, and
inconsistent breeding information or
degraded habitat were removed as not
meeting the definition of critical habitat.
For example, some areas on the Verde,
Salt, and Gila Rivers that are no longer
considered as critical habitat contained
some or all of the PBFs, but the habitat
is degraded, declining, and disjunct.
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There were also no recent records
(within the last 5 years) that confirm
occupancy throughout the breeding
season, although yellow-billed cuckoos
migrate through these areas. Some other
drainages in Arizona and throughout the
range were removed either because: (1)
The PBFs no longer occur, (2) our
information regarding PBFs was in
error, (3) surveys conducted since 2014
have not confirmed occupancy during
the breeding season, (4) surveys have
not been conducted, or (5) the area had
detections but occupancy was otherwise
uncertain; these areas were removed
from the designation as not meeting the
definition of critical habitat.
Comment 44: One commenter stated
that the Service failed to inform private
landowners that their property is
proposed for designation.
Our Response: We made every effort
to provide the public notification of our
proposed and revised proposed critical
habitat, including through direct
notification, publications in
newspapers, and social media outlets.
Due to the large scope of the proposed
designation, it was not possible to
individually contact each individual
landowner within the proposed
designation.
Comment 45: Several commenters
stated that there is no evidence that
critical habitat units were occupied at
the time of listing. Commenters
disagreed that using data collected over
a 20-year span is proof that the area is
occupied habitat at the time of listing in
2014. Commenters also disputed that
documentation of a few individuals is
proof that the species is breeding or that
the habitat they occupy is essential.
Other commenters held the opposite
point of view and found our parameters
for occupancy to be too narrow, and
recommended that the consideration of
occupancy should be expanded
temporally and spatially.
Our Response: In development of the
proposed rules and this final rule
designating critical habitat, we used the
best scientific and commercial
information available. We have
determined based on our analysis of the
information available that western
yellow-billed cuckoo surveys and
occupancy reports conducted in many
sites over multiple years indicate
continued use. Therefore, it is
reasonable to conclude that data
collected from 1998 to the present can
be used to determine occupancy. We
acknowledge the difficulty in
identifying every individual occupying
or breeding occurrence for an area
because of the remote nature of the sites,
reclusive nature of the species, the
variable nature of resource availability,
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the extent of the species range, and
limited personnel and funding to
conduct rangewide protocol surveys. In
certain instances we used the best
scientific and commercial information
to inform our decisions and professional
judgment on determining occupancy for
an area or including or not including it
as critical habitat. In our proposed rule
and this final rule, we outline our
rationale for determining occupancy
and identifying areas as critical habitat.
See Selection Criteria and Methodology
Used to Determine Critical Habitat.
Comment 46: Several commenters
were concerned about water depletion
(both surface water and groundwater)
and its continued threat to western
yellow-billed cuckoos into the future.
Some were interested in creating more
water availability and flow through a
balanced approach to water use interests
(including municipal, agricultural,
recreational, and environmental
interests) and implementing more
habitat restoration in areas proposed for
critical habitat.
Our Response: Water availability and
depletion can have a significant impact
to western yellow-billed cuckoo and its
habitat and were part of our reasoning
for listing the DPS as threatened. We
expect water depletion to continue due
to a variety of causes including actions
such as climate change, drought, mining
effects, groundwater pumping, and
water diversion. We will continue to
consult on this issue as it arises as well
as work with Federal, State, Tribal, and
private landowners on species recovery
actions.
Comment 47: Several commenters
pointed out potential inconsistencies in
application of criteria for designation, in
particular where large habitat blocks are
absent or where there are gaps greater
than 0.25 mi (0.40 km). One commenter
is concerned about the gaps in suitable
habitat and inclusion of small patches
along the Big Sandy River. Another
commenter stated that there is no
evidence that Pinto Creek contains
substantial blocks of riparian habitat.
Our Response: Because of the
dynamic aspects of western yellowbilled cuckoo habitat as a result of
potential flooding, changing river
locations, and land uses, we used the
active floodplain to identify where
riparian habitat occurs and immediately
adjacent suitable woodland habitat to
determine the critical habitat
boundaries. Blocks of habitat often
contain openings that change over time
in dynamic riverine systems. Suitable
habitat in perennial and intermittent
riparian systems consists of a variety of
configurations that include small
patches of woodland interspersed with
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openings, large expanses of woodland,
narrow woodland, or a combination of
different configurations within the same
drainage at any given time. Riparian
corridors in drainages, especially in the
Southwest, can be very narrow or a
patchwork of vegetated and
nonvegetated areas. Naturally occurring
gaps in habitat following flooding and
scouring are part of succession in
riparian systems. In time, trees will
regenerate and fill these openings.
Western yellow-billed cuckoos often
nest and forage near the edges and
openings that are part of the matrix of
suitable habitat. We included breaks in
habitat to combine one or more areas if
we determined that: (1) The gap in
vegetation was within minor variances
of the 0.25-mi (0.40-km) distance; (2) the
habitat on the other side of the gap was
a continuation of similar or better
suitable habitat and included breeding
occupancy as identified above; or (3) the
gap in vegetation was determined to be
a consequence of natural stream
dynamics essential to the continuing
function of the hydrologic processes of
the occupied areas. By providing breaks
in habitat and combining areas, we
allow for regeneration of vegetation in
these areas, which is often more
productive and provides additional food
resources for the species and allows for
appropriate habitat conditions for use
when dispersing to other breeding
locations.
Comment 48: Several commenters
claimed a need for western yellowbilled cuckoo critical habitat to be
protected from livestock grazing.
Our Response: We consider livestock
grazing, if conducted and managed
appropriately, to be a management tool
compatible with western yellow-billed
cuckoo and its habitat depending on the
location and intensity of the grazing
operation. We evaluate effects of grazing
on western yellow-billed cuckoos and
habitat through section 7 consultation
for any proposed project with a Federal
nexus. Livestock grazing in riparian
areas can be a concern, and the
Southwestern Willow Flycatcher
Recovery Plan (Service 2002, entire)
provides grazing guidance that is also
relevant for western yellow-billed
cuckoos. We identified overgrazing in
riparian (including xeroriparian) habitat
as an ongoing threat to western yellowbilled cuckoo habitat that may require
special management. Well-managed,
low-intensity, appropriately timed
grazing in areas with multiple options
for water access to livestock can be
compatible with western yellow-billed
cuckoos in some parts of the range.
However, where water is limited and
recruitment events are infrequent,
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grazing at any level can impact riparian
habitat.
Comment 49: Several commenters
indicated that the 2020 revised
proposed critical habitat rule conflicts
with the description of western yellowbilled cuckoo habitat in the 2014 listing
rule and 2014 proposed critical habitat
rule.
Our Response: Since the publication
of the 2014 proposed critical habitat
rule, we have learned more about
western yellow-billed cuckoos and their
habitat use through information
identified in published research, survey
efforts, and field studies. This new
understanding is included as the best
available science at the time of
publishing the 2020 revised proposed
rule. New information includes the
species’ use of ephemeral drainages
with relatively high humidity for
breeding, in addition to the known use
of riparian woodlands.
Comment 50: Several commenters are
concerned about the expansion of
identified critical habitat in certain
areas of Arizona, such as in the upper
reaches of the Big Sandy River and that
the additional areas (used as stop-over,
dispersal, or breeding habitat) are not
needed for critical habitat. They also
state that the rule fails to show how
many of these areas will require special
management. Other commenters
expressed concerns that the apparent
expansion in Arizona is only due to
increased survey effort and that Arizona
is disproportionately represented in the
2020 revised proposed critical habitat.
Our Response: The reduction in
riparian habitat (including mesquite
bosques) in Arizona has been well
documented and western yellow-billed
cuckoos are no longer found in areas
where riparian habitat no longer exists.
Yet, remaining habitat within Arizona
remains an important stronghold for
breeding western yellow-billed cuckoos.
As part of the core of the DPS, habitat
in Arizona needs to be conserved to
enable western yellow-billed cuckoos to
produce young that may eventually
disperse to other parts of the DPS’s
range. The Big Sandy River was
included because it contains breeding
habitat as outlined in our conservation
strategy. Although critical habitat areas
may be used as migration corridors,
dispersal habitat and stop-over sites,
that is not why these areas were
designated. These areas were identified
as critical habitat as they are breeding
areas that are used consistently by the
western yellow-billed cuckoo and
provide for population maintenance and
growth as outlined in our conservation
strategy. As mentioned in the rule,
riparian habitat (including xeroriparian)
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is used by the western yellow-billed
cuckoo; however, not all riparian habitat
has been designated. An increase in a
species’ detection information often
occurs as a result of a species being
listed as a threatened or endangered
species, due to consultation
requirements under section 7 as well as
recovery actions or State coordination
efforts under section 6 of the Act.
Additional occupancy information is
also sometimes obtained as a result of
academic research on a species. Since
2014, we estimate that the number of
detections has not increased
significantly and this information has
not lead to widespread areas being
found to be occupied outside those
areas known since before listing, which
identified the majority of occupancy
and population numbers occurring in
Arizona and New Mexico. The only
areas considered to be ‘‘new’’ but most
likely occupied at the time of listing are
those occurring in the ephemeral
habitats in southeastern Arizona
associated with monsoonal events.
Comment 51: Several commenters
expressed concern about designating
critical habitat in areas that contain the
nonnative tamarisk and were concerned
whether it provided usable habitat and
whether critical habitat locations with
tamarisk would interfere, delay, or
discourage removing tamarisk for longterm restoration efforts. One commenter
stated that the nonnative tamarisk plant
should not be identified as a physical or
biological feature and listed as a
riparian plant species used by the
western yellow-billed cuckoo, as it will
impede removal of the nonnative plant
species and delay or discourage future
habitat restoration efforts.
Our Response: As stated in our
revised proposed rule (see Tamarisk),
the nonnative tamarisk is often
characterized as being poor habitat for
wildlife. However, it can be a valuable
habitat substitute where the hydrology
of a stream or river has been altered to
the extent that native woodland or
riparian habitat can no longer exist.
Western yellow-billed cuckoo use areas
containing tamarisk for breeding and
foraging, especially when mixed with
some native vegetation. In Arizona and
New Mexico, it can provide cover,
temperature amelioration, food, and
nesting habitat. Actions such as clearing
vegetation, modifying physical site
conditions, altering natural river
processes, and disrupting biotic
interactions have facilitated tamarisk
dispersal to new locales, and created
opportunities for its establishment.
Because tamarisk is so widespread in
existing western yellow-billed cuckoo
habitat and used for breeding and
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foraging, it constitutes habitat for the
species, and any Federal actions taken
within these areas would most likely be
subject to consultation under section 7
due to occupation by the listed species
regardless of the area being designated
as critical habitat. The value of tamarisk
for the western yellow-billed cuckoo
depends on geographic and site-specific
conditions. Tamarisk can contribute to
suitable western yellow-billed cuckoo
habitat where mixed with native habitat
or adjacent to native habitat, especially
in Arizona and New Mexico. Tamarisk
is the result of altered hydrology, and
removal alone will not create a rebound
in native, riparian habitat. However,
tamarisk removal combined with native
tree replacement may benefit western
yellow-billed cuckoos where sufficient
water is available and long-term
management and funding ensures tree
survival. Because all the areas we
identified as critical habitat are
occupied, the section 7 consultation
requirements for protecting the listed
species would still apply.
Comment 52: A couple of commenters
raised issues pertaining to wildfire. One
expressed concerns about how critical
habitat could lead to causing an
overgrowth of vegetation and potentially
leave areas more vulnerable to
catastrophic wildfires, while the other
acknowledged the need for critical
habitat to balance the increased risk of
wildfire due to climate change.
Our Response: We acknowledge that
wildfire risk exists within all habitat to
varying degrees across the range of the
DPS. The designation of critical habitat
does not mean that management for
reduction of wildfire cannot occur. In
fact, the identification of critical habitat
as an educational tool may focus such
wildfire management actions to help
conserve the habitat. We will continue
to work with Federal, State, and Tribal
governments and private landowners
within the designation to implement
appropriate wildfire management
actions within and outside any critical
habitat designation.
Comment 53: Several commenters
stated that the description of the revised
proposed critical habitat conflicts with
the breeding and foraging habitat
description in the 2014 proposed
critical habitat and final listing rule.
Our Response: We have learned more
about western yellow-billed cuckoo
foraging and breeding habitat since
publication of the 2014 proposed
critical habitat and final rule for listing.
The revised proposed rule and this final
rule include revised information on
habitat features, foraging behavior, and
breeding areas.
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Comment 54: Numerous commenters
stated they have concerns with western
yellow-billed survey information (such
as interpretation, biases, and
inconsistencies), a lack of
comprehensive statewide surveys, and
the likely existence of unsurveyed areas
where western yellow-billed cuckoo
could be found.
Our Response: We recognize the lack
of recent statewide survey information
and that not all areas within the range
of the DPS have been adequately
surveyed. However, in development of
critical habitat, we are required to use
the best scientific and commercial
information available to identify those
areas essential to the conservation of the
species. We used a combination of data
collected using the standardized survey
protocol (Halterman et al. 2016, entire),
data from species specific studies, and
other credible detection data. Although
we cannot always guarantee complete
accuracy in the survey information
provided to us, as of the 2014 listing,
the persons conducting protocol surveys
are required to complete Serviceapproved western yellow-billed cuckoo
survey training prior to receiving a
permit under section 10 of the Act.
Comment 55: Several commenters
expressed that with the new ephemeral
Southwest breeding habitat
incorporated into critical habitat, there
are areas available for western yellowbilled cuckoos that are not subject to
threats, and that suitable habitat is now
broader and more common, questioning
the need for critical habitat.
Our Response: Our characterization of
Southwestern breeding habitat is to
better define the physical or biological
features of habitat throughout the range
of the species. Historical descriptions of
habitat were largely based on research
in the Sacramento Valley, CA, or other
areas known to have occupied habitat in
large expanses of floodplain areas,
which is often different ecologically
than habitat in the Southwest as far as
vegetation and environmental
conditions. These changes were
reflected in our description of the PBFs
for the species. The changes to the
description of habitat, by including a
separate description for Southwest
breeding habitat, does not mean that
additional areas are now available and
being used by the species. Southwest
breeding habitat is threatened by many
of the same activities as the rest of the
DPS that has led to the loss of western
yellow-billed cuckoos and their habitat.
Comment 56: One commenter claimed
that habitat areas within existing power
line corridors and rights-of-way that are
required to be maintained under
existing Federal energy laws and
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regulations are not essential to the
conservation of the species because they
currently do not, and in the future
cannot, contain the primary constituent
elements of essential features; these
corridors should be identified and
removed from the final critical habitat
designation.
Our Response: When determining
proposed critical habitat boundaries, we
made efforts to avoid including
developed areas such as lands covered
by buildings, pavement, and other
structures because such lands lack the
PBFs. These types of developments are
not typically found adjacent to riparian
habitat and, when they do occur, may be
missing from or inaccurately
represented in existing map sources. As
a result, because of the large scope of
this designation and the limitations of
maps, any such developed lands, such
as cement pads that support
transmission or power poles or roads
left inside critical habitat boundaries,
are not considered critical habitat
because they lack the necessary physical
or biological features. Therefore, a
Federal action involving these
developed lands would not trigger
section 7 consultation with respect to
critical habitat or the prohibition of
adverse modification, unless the
specific action would affect the physical
or biological features in adjacent critical
habitat. However, Federal actions that
may affect the species do require section
7 consultation. If lands surrounding
existing powerlines, towers, or rights-ofway are occupied by western yellowbilled cuckoos, Federal activities such
as maintenance that may affect the
species during the breeding season
require section 7 consultation.
Comment 57: One entity claimed that
any restriction on mining to maintain
critical habitat would have a dramatic
impact on mining operations and that
any such restrictions are attributable
solely to the designation of critical
habitat.
Our Response: The areas currently of
interest to mining activities located in or
near critical habitat boundaries are
occupied by the western yellow-billed
cuckoo and would be subject to either
section 7 or section 10 consultation
requirements of the Act due to the
species being listed as threatened. As
described in our economic analysis (IEc
2019, entire), the majority of regulatory
requirements as a result of any critical
habitat designation would be
administrative in nature and be
conducted by the Federal agency that
may have approved, permitted, or
provided funding for the mining
activities.
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Comment 58: Many commenters
claimed that particular areas should not
be designated because they believe that
critical habitat will unnecessarily
regulate the public, will overload
Federal agencies with implementation
of the designation, or is not necessary
because the areas are already federally
owned and therefore protected.
Specifically, many landowners with
water diversions, cattle ranches, and
agricultural property, plus residents in
areas dependent on recreation to
support local economies throughout the
western yellow-billed cuckoo’s range,
commented that this designation would
cause them harm economically, could
limit the ability of farmers and ranchers
to till productive farmland, could limit
use of fertile grazing land, could restrict
the utilization of critical water rights,
and could delay projects through the
regulatory process.
Our Response: We are required to
designate critical habitat for listed
species if we find that the designation
is prudent and determinable as we did
for the western yellow-billed cuckoo.
The designation of critical habitat
applies to actions that are taken,
permitted, or funded by Federal
agencies. In our economic analysis, we
did not find that the designation would
cause a significant change in activities
or delay or add additional regulatory
processes, as the majority of regulation
is already in place because the western
yellow-billed cuckoo is listed as a
threatened species. Agricultural and
grazing activities and water operations
were not identified as facing significant
changes to costs due to the designation.
Comment 59: One commenter claims
that the Service reversed course from
the proposed rule and now contends
that western yellow-billed cuckoo uses
nonriparian habitats that occur along
dry drainages and adjacent uplands. The
commenter questioned the new category
of southwestern breeding habitat and
stated that, to their knowledge, this use
of habitat and habitat description have
not been previously recognized or
described by ecologists.
Our Response: Southwestern breeding
habitat is similar to breeding habitat in
Mexico. We identified southwestern
breeding habitat to better identify and
describe the physical or biological
features essential to the conservation of
the species and assist us in conducting
section 7 consultations for areas within
critical habitat. As described in the
Critical Habitat section, features such as
understory and overstory components
with high humidity are considered
important for habitat selection for
breeding western yellow-billed cuckoos.
This is especially true in ephemeral
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tree-lined xeroriparian drainages.
Western yellow-billed cuckoos have
only recently been discovered using this
habitat and studies are underway in
southeastern Arizona to determine
where western yellow-billed cuckoos
are and are not occupying habitat during
the breeding season. Surveys to date
have not found western yellow-billed
cuckoos in ephemeral tree-lined
xeroriparian drainages where high
humidity is lacking.
Comment 60: One commenter asserts
that the addition of southwestern
breeding habitat significantly increases
the number of critical habitat units and
total area of critical habitat in Arizona.
Many of the Arizona critical habitat
units are based on a handful of
detections over the past two decades,
raising questions about whether the
habitat can be considered occupied and
whether the areas are essential to the
conservation of the species. The
commenter states as a result the Service
failed to conduct a thorough, systematic
review of the data and species’ needs in
the development of the revised
proposed rule.
Our Response: We followed specific
occupancy criteria to determine areas of
critical habitat and developed a
conservation strategy for the designation
(see Criteria Used To Identify Critical
Habitat, Conservation Strategy). Western
yellow-billed cuckoos are found in low
densities and some units have more
occupancy data than others depending
on survey efforts. Because western
yellow-billed cuckoos are selective in
using breeding habitat, have large home
ranges, are difficult to detect, and occur
in low densities, and surveys have
occurred only in limited reaches of
available habitat, we expect territory
numbers per length of drainage
surveyed to be small (one to four
individuals or pairs is not uncommon).
If the species is found repeatedly in one
part of the drainage, and similar habitat
occurs upstream and downstream, we
assume other individuals may be
present. Because most surveys are
conducted by one or two surveyors per
drainage, only a small length of drainage
can be surveyed in any given year,
yielding a small number of western
yellow-billed cuckoos in a given reach.
This contrasts to a focused wide-ranging
survey such as on the Rio Grande with
many surveyors that find many records
along a longer reach.
Comment 61: One commenter stated
that many riparian woodlands in areas
outside Arizona and New Mexico are
known to support western yellow-billed
cuckoo and were proposed as critical
habitat in 2014. They were concerned
that these areas have been dropped from
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the 2020 revised proposed critical
habitat. The commenter suggests that
the Service did not provide any
rationale for these changes, which
appear to contradict efforts for species
conservation. The revised proposed rule
effectively makes Arizona the central
focus for western yellow-billed cuckoo
conservation. This counters previous
information that the western yellowbilled cuckoo is considered a riparian
obligate species and such riparian
habitat and perennial streams are
limited in Arizona.
Our Response: As described in the
revised proposed rule, we developed a
conservation strategy to identify areas
for critical habitat. Some areas in the
2014 proposed rule were small, isolated,
and contained single or very few records
of occupancy for the breeding season.
As a result of our conservation strategy,
we focused the designation on areas
where we could confirm large numbers
of breeding pairs and consistent
breeding activity. For the western
yellow-billed cuckoo, this means
identifying areas in Arizona and New
Mexico. Arrival of the western yellowbilled cuckoo in the western United
States occurs from Mexico north
through Arizona and New Mexico
(Cornell Lab of Ornithology 2020). In
addition, new information indicates
western yellow-billed cuckoos are
breeding in a greater variety of riparian
habitat in the Southwest, and as such,
this knowledge was used to ensure we
protect the breadth of this breeding
habitat. Arizona has more currently
occupied drainages and breeding
locations than other western states and
although many surveys have been
conducted, only a small proportion of
drainages have been surveyed.
Therefore, ensuring habitat remains for
the species in the core of the population
is important for dispersal to other
geographic areas with fewer western
yellow-billed cuckoos. The core area for
this species in the United States is
primarily in Arizona and New Mexico
in large river systems with riparian
habitat, and in xeroriparian habitat
influenced by monsoonal conditions.
We considered and included new
information acquired since listing. We
did not include all occupied riparian
habitat, but based decisions on
representative habitat types and their
distribution. In western states outside of
Arizona and New Mexico, large river
systems used for breeding by western
yellow-billed cuckoos provide for
additional redundancy and
representation.
Comment 62: One commenter stated
that the Service’s rationale for listing the
western yellow-billed cuckoo in 2014
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was largely based upon the loss of
riparian woodland habitats. The
addition of southwestern breeding
habitat is not only counter to the
Service’s well-documented historical
‘‘understanding’’ of species ecology but
also conflicts with the Service’s basis for
listing the species. This undermines the
legitimacy of the species listing, and as
a result, the Service is obliged to
conduct a thorough review of the
species status.
Our Response: Loss of habitat and
breeding location activity for the
western yellow-billed cuckoo is well
documented. The DPS continues to see
population number declines throughout
the Western United States with the only
remaining strongholds for the species
being in Arizona and New Mexico. Our
description of habitat and the additional
use of habitat in ephemeral drainages
does not change our understanding of
the status of the species. We completed
a status review and determined that the
western yellow-billed cuckoo continues
to warrant listing as a threatened species
(85 FR 57816). Therefore, we continue
to be driven by a court-ordered deadline
to complete a final designation.
Comment 63: One commenter claims
that the revised proposed rule presents
contradictory information and suggests
that the Service has yet to develop a
coherent understanding of this species.
The commenter suggests that there are
clear gaps in the Service’s
understanding and explanation of the
species’ prevalence and its habitat
needs. These gaps should be resolved
before the Service proceeds with the
critical habitat designation. The
commenter’s preference is for the
Service to reevaluate this listing and
proposed designation.
Our Response: The information in this
final designation is not contradictory.
Our rationale for identifying and
determining areas as critical habitat, our
description of the PBFs essential to the
conservation of the species, and our
conservation strategy for determining
critical habitat are consistent with each
other and provide a strong basis for the
determination. There are information
gaps regarding western yellow-billed
cuckoo occupancy and habitat use, and
our understanding is continually
evolving as we accumulate more
information. We have designated critical
habitat in accordance with the best
scientific and commercial information
available, as required by the Act.
Comment 64: Two local government
entities in California claim that the
designation would have a large impact
on agricultural practices and the local
economy. One of the two commenters
also stated that access to lands would be
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restricted, grazing limits imposed, and
trout stocking, logging, mining, and
recreation would be impacted. The
other commenter stated they have
drafted the Butte Regional Conservation
Plan to conserve western yellow-billed
cuckoo and its habitat. Both
commenters requested exclusion.
Our Response: For both the 2014
proposed critical habitat and the 2020
revised proposed critical habitat, we
completed economic analyses to
examine the incremental costs
associated with the designation of
critical habitat. The economic analyses
did not identify significant impacts, and
the two local government entities did
not provide economic information
regarding any of the activities identified.
Nor did they provide information or a
reasoned rationale supporting their
requests for exclusion which is
necessary for the Service to engage in an
exclusion analysis. Critical habitat does
not restrict private landowner access to
their property and would need to be
considered only if Federal agency
funding, or permitting for an activity is
needed. Because the areas are
considered occupied, the majority of
costs are not associated with the
designation, but with listing of the
species as threatened. In our mapping of
critical habitat, we avoided areas
associated with agriculture and focused
on areas that contained the physical or
biological features for the species. In
some cases, due to the habitat being
fragmented from development or
agricultural conversion, we drew the
boundary to encompass the various
habitat patches. In such instances, some
small areas not containing the physical
or biological features are within the
boundary of the designation. Any such
areas would not be considered critical
habitat because they do not contain the
physical or biological features. The
Butte Regional Conservation Plan is still
in draft form and has not been approved
by the Service or the State under its
Natural Community Conservation
Planning (NCCP) program.
Comment 65: Several commenters
provided their concerns relating to
designation of critical habitat at Lake
Isabella, California. The issues raised
were concerning potential impacts to
public safety for disruption of reservoir
operations, flooding, and potential
wildfire due to vegetation growth as
well as increased economic costs for the
local economy from loss of recreation
and water use.
Our Response: Although we would
not expect a designation of critical
habitat to impact the commenters’
concerns identified above or increase
economic cost to the local economy, we
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have revised our designation of the
critical habitat within Unit 64 (CA–2) at
Lake Isabella to avoid those areas
typically inundated and within the
floodplain of the reservoir. These areas
are part of the flood control
management and operations conducted
by the Corps established under separate
authorization. In addition, the Corps has
already consulted with the Service on
its operations of Lake Isabella for both
the southwestern willow flycatcher and
the western yellow-billed cuckoo.
Because these areas have been removed,
any activities associated with the
operations of Lake Isabella by the Corps
would not be impacted by the
designation of critical habitat. In
addition, two areas where the Corps
obtained conservation easements are
also being excluded under section
4(b)(2) of the Act (see Exclusions Based
on Other Relevant Impacts).
Comment 66: Several organizations
and groups requested that Unit 63 (CA–
1) along the Sacramento River be
excluded from the designation for these
stated reasons: Increased costs to
agriculture, concerns about flood
control, National Wildlife Refuge (NWR)
lands along the Sacramento River
already protect western yellow-billed
cuckoo and its habitat, and additional
areas are not needed.
Our Response: The commenters
provided general statements of their
request that Unit 63 be excluded but did
not provide information or a reasoned
rationale supporting their request for
exclusion. In designating critical
habitat, we avoided areas that contained
developed or agricultural lands based
on aerial imagery and land
classification. Our economic analysis
did not identify that designation of
critical habitat would significantly
impact agricultural activities above and
beyond what may be required because
of the species’ listed status under the
Act. The critical habitat designation
occurs along the banks of the main stem
of the Sacramento River. The
designation of critical habitat would not
impact normal water delivery, flood
control actions, or stream flows required
for emergency operations. In fact, such
unregulated flows assist in mimicking
natural high flow events, which can
benefit sediment deposition and provide
new vegetation growth for use by the
western yellow-billed cuckoo. In
determining the extent of critical habitat
within a unit, we based the boundaries
on areas where the species has had
continuous or nearly continuous records
of confirmed or presumed breeding. We
delineated critical habitat boundaries to
provide connectivity between breeding
locations and account for the dynamic
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nature of habitat conditions and prey
availability. As a result, the NWR
boundaries would not account for all
the areas essential to the conservation of
the species, and by limiting them to the
NWR boundary, the designation would
not meet the needs of the species.
Comment 67: One group said that
portions of their land included in Unit
63 (CA–1) along the Sacramento River
do not contain the PBFs and therefore
are not critical habitat. They also stated
that they have worked with the CDFW
on habitat actions, and requested that
portions of their lands be excluded.
Our Response: We reviewed the areas
identified by the commenter and
adjusted the boundary of the unit to
reflect those areas containing the PBFs.
We also reviewed the information
regarding the landowner’s agreement
with CDFW. After review, we find that
the landowner’s agreement does not
meet our criteria for exclusion of plans
as outlined in our policy for exclusion
(81 FR 7226) because it does not contain
sufficient measures to conserve the
PBFs of the species’ habitat or include
measures for adaptive management that
would ensure that the conservation
measures are effective and can be
modified to respond to new
information. Therefore, we did not
consider the area identified for
exclusion.
Comment 68: Numerous
environmental organizations and several
other local environmental groups stated
that the entire proposed critical habitat
areas should be designated without any
exclusions and that exclusion of areas
should not rely on southwestern willow
flycatcher management plans or its
critical habitat for conservation of the
western yellow-billed cuckoo. They also
provided information about adding
additional areas and expanding
proposed areas to be sure to include
connectivity and stop over areas as well
as migratory routes up to and including
entire river corridors.
Our Response: Our designation of
critical habitat for the western yellowbilled cuckoo was developed based on
a specific conservation strategy to assist
in recovery of the species (see Criteria
Used To Identify Critical Habitat
(Conservation Strategy)). Based on our
conservation strategy, we have
concluded that the areas identified as
proposed critical habitat and now being
designated are sufficient in meeting our
critical habitat designation requirements
under the Act. The conservation strategy
provides for many of the measures
identified by the commenters. While we
agree with the commenters that
additional areas outside the current
designation are important and would
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contribute to recovery, the designation
of critical habitat is not intended to
identify all areas important for a
species, but just those considered
essential. The Secretary has broad
discretion in determining if areas are
appropriate for exclusion under section
4(b)(2) of the Act. Our evaluation for
determining if an exclusion is
appropriate includes a detailed analysis
and balancing on whether the benefits
of excluding outweigh the benefits of
including an area as critical habitat as
long as the exclusion does not lead to
an extinction of the species. The
exclusions we have identified include
implementation of HCPs, other
management plans, conservation
agreements, or conservation easements
that protect or implement specific
conservation measures for the western
yellow-billed cuckoo or its habitat (see
Exclusions). As a result, we determine
that excluding these areas under section
4(b)(2) of the Act is appropriate.
Comment 69: One commenter claimed
that the Service ignored, withheld, hid,
or discounted information and as a
result did not meet the best scientific or
commercial information standard under
the Act in making its determination of
critical habitat. The commenter further
stated that the western yellow-billed
cuckoo only rarely uses habitat in the
western DPS on a migratory and
seasonal basis, which therefore inhibits
the Service’s ability to delineate habitat
that contains the physical and biological
features to justify the designation of
critical habitat. As a result, the
designation of critical habitat for the
western yellow-billed cuckoo would be
not prudent or determinable. Lastly the
commenter stated that existing
regulatory mechanisms are sufficient to
protect habitat and the designation of
critical habitat is not necessary and
would contribute to an already heavy
regulatory burden for the industry.
Our Response: In development of the
proposed, revised, and this final rule
designating critical habitat, we used the
best scientific and commercial
information available. We find the
commenter’s statements regarding our
ignoring, withholding, hiding, or
discounting information and not using
the best scientific and commercial
information available to be baseless. In
the final listing rule, proposed critical
habitat rule, revised proposal, and this
final rule, we describe the habitat,
migratory and arrival patterns, nesting
behavior, and behaviors of the western
yellow-billed cuckoo and its use of
habitat in great detail. The available
information on the species’ life history
and habitat use patterns is well
documented by the scientific
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community. As a result, we have
sufficient information to determine the
areas essential to the conservation of the
species as critical habitat. Under the
Act, we are required to designate critical
habitat for threatened and endangered
species. The commenter’s statement that
the existing regulatory mechanisms are
sufficient to protect habitat for the
species is confusing one of the factors
considering in listing a species under
the Act with the designation of critical
habitat. The Act requires Federal
agencies to use their authorities to
conserve endangered and threatened
species and to consult with the Service
about actions that they carry out, fund,
or authorize to ensure that they will not
destroy or adversely modify critical
habitat. The prohibition against
destruction and adverse modification of
critical habitat protects such areas in the
interest of conservation. In our
determination of critical habitat, we
took into account the regulatory
requirements of listing the western
yellow-billed cuckoo as a threatened
species and evaluated any incremental
impacts and additional regulatory
responsibilities of designating critical
habitat. We found that any increase in
regulatory requirements as a result of
critical habitat would most likely be
administrative in nature in regard to
Federal agency compliance with
evaluating any adverse modification
aspects of actions they carry out, fund,
or authorize.
Comment 70: In 2015, we received a
spreadsheet outlining 83,454 identical
comments supporting critical habitat
and 3,609 nearly identical public
comment letters. We also received
another spreadsheet containing 6,317
nearly duplicative comments in 2020.
The latter commenters were similarly
supportive of critical habitat but stated
that all habitat should be designated
including additional areas smaller than
200 ac (81 ha) due to the decline of the
species and its habitat. The 2020
comments supported the inclusion of
additional areas not identified in the
2014 proposal, but were disappointed
that numerous areas were removed or
partially removed (i.e., Eel (CA), Yampa
(CO), Conejos (CO), Santa Maria (AZ),
and Carson (NV) Rivers) without reason
and stated that we should protect
additional areas including every stream
and river stretch where western yellowbilled cuckoos nest. They state that
many of these areas are targeted for
development, and so a failure to protect
them will eliminate places for western
yellow-billed cuckoos to nest. As a
result, they stated that the current
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proposal is insufficient for recovery of
the species.
Our Response: In our revised
proposed critical habitat, we developed
and described our conservation strategy
to identify those areas considered to be
essential to the conservation of the
species. In implementing our strategy,
we focused on designating areas where
the western yellow-billed cuckoo has
shown to have consistent and recent
occupation as a breeder. Consequently,
areas where sightings or presumed
breeding were sparse or inconsistent
were not included in the 2020 proposal,
as these areas were not considered as
part of our conservation strategy for
designating critical habitat. Not
designating areas as critical habitat does
not mean they are unprotected under
the Act. The western yellow-billed
cuckoo is a threatened species and is
protected by the prohibitions in section
9 the Act. Critical habitat is just one of
the tools we use for species
conservation. Not including areas as
critical habitat does not mean the areas
outside the critical habitat boundaries
are not important or cannot be
identified in future recovery planning.
We stand by our strategy for designating
critical habitat for the western yellowbilled cuckoo as the areas identified
contain the PBFs, meet the definition for
critical habitat, and support relatively
large consistent breeding habitat for the
species.
Comment 71: One organization and
others stated that they were opposed to
limiting the designation and that a full
NEPA analysis be conducted. They also
state that the Service does not
adequately describe economic benefits
of designation of critical habitat. They
contend that the Service erroneously
relies on plans for other species to
exclude areas from critical habitat and
that if exclusions occur, they should
have clear explanations on why the
areas are excluded. The commenters
stated that the Service should ensure
that the designation will not interfere
with habitat restoration efforts to
remove tamarisk. Lastly the commenters
contend that the Service should ensure
that no agricultural application of
pesticides has the potential to affect
western yellow-billed cuckoo or
alternatively the Service should expand
units that are adjacent to areas with
agricultural use so that the application
of pesticides does not impact the
species or its insect prey. Another
commenter stated rotenone was of
particular concern.
Our Response: We developed a
conservation strategy to determine
which areas to consider as critical
habitat. This strategy has led us to
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appropriately identify the extent and
distribution of critical habitat for the
western yellow-billed cuckoo (see
Conservation Strategy). The designation
provides for critical habitat in areas that
have shown consistent breeding and
typically have a large number of
breeding birds. The designation
provides for habitat in each of the
differing landscape level ecosystems
where the western yellow-billed cuckoo
occurs.
In regard to economic benefits, a
primary reason for conducting the
economic analysis is to provide
information regarding the economic
impacts and benefits associated with a
critical habitat designation. Executive
Order 12866 directs agencies to assess
the costs and benefits of any regulatory
action. The primary intended benefit of
critical habitat is to support the
conservation of threatened and
endangered species, such as the western
yellow-billed cuckoo. However, public
perception of limits imposed by the
regulation may inadvertently cause
changes in future land use, and as a
result may provide additional benefits
to the species and its habitat. In our
economic analysis, data limitations
prevented us from quantifying such
additional economic benefits.
Quantification of these benefits would
require primary research and the
generation of substantial amounts of
new data, which is beyond the scope of
our analysis and Executive Order 12866.
Prior to publication of the revised
proposed rule, we completed a draft
NEPA analysis for the designation of
critical habitat and made the document
available to the public by request or
through the Sacramento Fish and
Wildlife Office website. After the public
comment period and our determination
of the areas to be designated, we
finalized an environmental assessment
with a finding of no significance under
NEPA. In our process for excluding
areas from critical habitat, we conduct
a balancing analysis describing the
benefits of including an area as critical
habitat versus the benefits of excluding
an area as critical habitat. Our reasoning
and logic for coming to our conclusion
on whether we are or are not excluding
an area is included for each exclusion
and follows our Policy for Exclusions
(81 FR 7226) (see Exclusions).
As for using other species’
management plans as justification to
exclude an area, we do this on a caseby-case basis. For us to consider use of
other species’ management plans, we
look to whether habitat needs and use
are similar for each species to the point
that the management of the other
species’ habitat will also benefit the
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western yellow-billed cuckoo. For this
designation we have looked at
numerous southwestern willow
flycatcher management plans and found
that in cases where breeding areas
overlap, management actions to protect
and conserve riparian habitat are
generally consistent for both species and
that using these plans is appropriate for
conservation of the western yellowbilled cuckoo.
Restoration of habitat to eliminate
tamarisk could benefit the western
yellow-billed cuckoo. However, the
restoration of riparian habitat is difficult
and requires long-term commitments
from stakeholders. Mere removal of
tamarisk, despite being a nonnative
species, would be strongly discouraged
regardless if the area is within critical
habitat or not. In Arizona and New
Mexico, the western yellow-billed
cuckoo uses and breeds in tamariskdominated sites, especially if other
native vegetation components still exist
at the site. The western yellow-billed
cuckoo also uses areas dominated by
tamarisk for foraging. Actions to remove
tamarisk and restore riparian vegetation
would also need to go through section
7 consultation or section 10 permitting
requirements due to the western yellowbilled cuckoo being listed as a
threatened species with critical habitat
being evaluated only as to whether
Federal actions carried out, funded or
permitted would adversely modify such
areas as defined by the Act.
The western yellow-billed cuckoo is
protected by all the section 9
prohibitions under the Act, which
includes actions that harm, pursue,
hunt, shoot, wound, kill, trap, capture,
or collect, or attempt to engage in such
conduct. Pesticide use and application
for agricultural purposes, including use
of rotenone, is already regulated under
Federal, State, and County laws,
regulations, or permits. Such
application takes into account measures
to avoid and reduce impacts to wildlife
and nontarget areas. Expanding
additional area around critical habitat is
not the intent of designation under the
Act and our implementing regulations.
In determining critical habitat, we are to
identify those areas essential to the
conservation of the species by
identifying areas that contain those
physical or biological features used by
the species. Including additional areas
that do not contain any physical or
biological features would be contrary to
our implementation of the Act.
Comment 72: One commenter was
concerned that all of the areas
previously identified in 2014 were not
being included and that the new areas
identified in 2020 are still not sufficient
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for conservation and recovery of the
species. The commenter states that the
Service should identify areas as critical
habitat for foraging, dispersal, and
migration (including unoccupied areas
in the species’ historical range) and that
the 200-ac (81-ha) minimum size filter
should be removed. Lastly, the
commenter states that the Service
should not exclude any areas, especially
those that rely on southwestern willow
flycatcher management plans.
Our Response: In determining critical
habitat for the western yellow-billed
cuckoo, we developed a conservation
strategy to identify those areas essential
to the conservation of the species. We
made the changes from 2014 to 2020 to
reflect implementation of this strategy
(see Criteria Used to Identify Critical
Habitat (Conservation Strategy)). In
delineating the areas, we included
breeding habitat that also accounts for
western yellow-billed cuckoo needs for
foraging, dispersal, and migration. We
did not consider unoccupied areas for
critical habitat because we determined
that occupied areas were sufficient to
conserve the species. In response to our
200-ac (81-ha) selection criterion, we
used this as a general rule rather than
a strict cut-off of considering areas. In
our proposed rule, we took into account
the importance and distribution of
habitat and included several areas in the
revised proposed rule that included less
than 200 ac (81 ha). These areas have
been excluded from the final
designation due to management. We
have determined that our exclusion of
certain areas meets our standards under
section 4(b)(2) of the Act in that the
benefits of exclusion outweigh the
benefits of inclusion as critical habitat
and will not lead to extinction of the
species (see Exclusions).
Comment 73: Several environmental
organizations specifically raised
concerns that the areas identified at
Elephant Butte Reservoir be expanded
to include additional critical habitat.
They also suggested justification and
changes to the Service’s conservation
strategy, and that the Service must do a
carrying capacity for units before we
discount designating unoccupied areas.
Our Response: In our 2020 revised
proposed rule, partly in response to
comments received in 2014 and 2015,
we extended the proposed designation
of the Rio Grande from Elephant Butte
Reservoir upstream (Unit 37, NM–6B) to
better reflect the areas being used as
breeding areas by the western yellowbilled cuckoo.
As a result of comments received, we
reviewed our conservation strategy and
made minor edits and included
additional language for its justification
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(see Criteria Used to Identify Critical
Habitat (Conservation Strategy) in this
document).
Although we didn’t complete a
carrying capacity for the designation as
suggested by the commenters, based on
the information available, some areas
have sufficient habitat that is underused
by the species. One example of this is
habitat along the Sacramento River in
California. In our designation of critical
habitat, we included a large extent of
habitat along the Sacramento River,
which, despite losses, has had a large
population of breeding western yellowbilled cuckoos. In recent years, this area
has been and continues to be the focus
of numerous habitat restoration efforts
to assist in development of riparian
habitat for numerous sensitive and
listed species. Although these
restoration efforts have made more
habitat available, the western yellowbilled cuckoo has not reoccupied these
areas; consequently, habitat is not
currently considered a limiting factor
for the species (Dettling et al. 2015, pp.
6–13).
Comment 74: One commenter stated
that the critical habitat designation
should be expanded to protect more
areas to accommodate for species shifts
in habitat use due to changing
environmental conditions brought about
by climate change. The commenter cites
one journal article to support its claims
regarding climate change (Thomas and
Gillingham 2015, entire).
Our Response: The study referenced
by the commenter contends that
conservation of a species may be
assisted by preserving and protecting
areas throughout and outside a species’
range to make habitat available to
address potential changes of habitat
conditions resulting from the effects of
climate change. The western yellowbilled cuckoo is a wide-ranging species
and still occurs throughout its historical
range from southwestern Canada down
to Mexico during its breeding season.
Environmental conditions within this
wide north-south range vary greatly, and
the effects of climate change identified
for this species were found not to be a
major concern due to this variability in
habitat and the species’ ability to seek
out appropriate habitat (see Critical
Habitat). Based on our conservation
strategy for designating critical habitat,
the extent and distribution of areas
identified in the revised proposed rule
and this final rule meet our
requirements under the Act to designate
areas essential to the conservation of the
western yellow-billed cuckoo as critical
habitat and will most likely incorporate
any variability in environmental
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conditions due to the effects of climate
change.
Comment 75: Numerous commenters
stated that the designation of critical
habitat would impact water
management and disrupt water
availability, distribution, and delivery
operations in the range of the western
yellow-billed cuckoo.
Our Response: The disruption and
changes to ‘‘natural’’ river and stream
processes, which help the development
and regeneration of riparian vegetation,
have been identified as a threat to the
species. However, the majority of
streams and water delivery facilities
within the range of the western yellowbilled cuckoo are at least partly
managed by Federal entities or would
have a Federal nexus. As a result, these
Federal agencies and other entities that
are funded or permitted by the Federal
entity have an obligation to conserve
endangered or threatened species and
their habitat. However, since listing of
the western yellow-billed cuckoo, we
have not become aware and the
commenter did not provide any
examples of any major changes to water
availability, distribution, and delivery
operations in the range of the western
yellow-billed cuckoo. Our economic
analysis did not identify these water
management actions as incurring
significant costs. As a result, water
management actions are unlikely to be
disrupted. To the extent agencies
propose to modify their water
management actions in a manner that
does not appreciably diminish the value
of the critical habitat as a whole for the
western yellow-billed cuckoo, it is
unlikely that these activities would
meet the definition of destruction or
adverse modification of critical habitat
under the Act.
Comment 76: Numerous commenters
stated that the western yellow-billed
cuckoo has lost nearly 90 percent of its
breeding habitat due to human activities
and that the species is further
threatened by water delivery and water
management activities in the West. As a
result, the Service should designate
additional areas as critical habitat.
Our Response: In our October 3, 2014,
final listing rule (79 FR 59992), and in
our February 27, 2020, revised proposed
designation of critical habitat (85 FR
11458), we discuss habitat loss for the
species from various actions as well as
the impacts associated with water
delivery and management. We consider
existing water management operations
in place on riverine segments identified
as critical habitat, unless modified
subsequent to this revised proposed
designation, are unlikely to have any
discernible effect on the quantity,
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quality, or value of the PBFs of the area
identified as critical habitat. That is,
when evaluating the effects on critical
habitat, we consider ongoing water
management operations at Federal
facilities within the areas identified as
critical habitat are often not within the
agency’s discretion to modify and
would be part of the baseline in any
effects analysis. This is particularly true
of areas upstream of reservoirs. The
normal operations of filling and drawdown of reservoirs often mimic the
flooding and drying events associated
with intact riparian woodland habitat
and river systems providing habitat for
the western yellow-billed cuckoo.
Therefore, we do not expect that the
continuation of existing water
management operations would
appreciably diminish the value or
quality of the habitat. As a result, we
consider the amount and distribution of
critical habitat we identified to be
appropriate based on the conservation
strategy we developed for the
designation of critical habitat for the
western yellow-billed cuckoo.
Comment 77: One commenter stated
that the designation of critical habitat is
duplicative regulation in that
regulations are already in place to
protect riparian habitat and waterways.
The Service should not just focus on
habitat in the United States, but look to
other areas for conservation actions,
especially in their wintering grounds in
South America.
Our Response: Because the western
yellow-billed cuckoo is a threatened
species, we are required under the Act
to designate critical habitat. According
to the Act, critical habitat applies only
to areas in the United States and not to
areas in other countries as it applies to
actions conducted, funded, or permitted
by U.S. Federal entities. Although the
commenter is correct that conservation
actions should be taken to protect and
conserve areas in the western yellowbilled cuckoo’s wintering grounds, we
cannot designate critical habitat in other
countries.
Comment 78: One commenter claimed
that additional research is needed to
determine which areas should be
protected and considered critical habitat
for the western yellow-billed cuckoo
especially in light of future habitat loss
from development.
Our Response: We are required to
designate critical habitat based on the
best scientific and commercial data
available. We have extensive
information on habitat use by the
species and consider our designation to
be appropriate based on that
information and our conservation
strategy. Should new information
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become available that requires revision
of critical habitat, we have the authority
to do so under the Act.
Comment 79: Several commenters
stated that the Service relies on
unfounded claims regarding habitat loss
and is not in compliance with its
requirements to use the best science
available in making critical habitat
determinations. Several other
commenters state that the threats from
livestock from overgrazing are
unfounded based on existing range
management practices. They specified
that the designation of critical habitat is
expected to place a significant economic
burden on livestock grazing operations
within the States of California, Arizona,
and New Mexico. They opposed the
proposed rule and requested that
overgrazing be removed from the
language of the rule. In addition, one
commenter states that the maps showing
the designation of critical habitat are
difficult for landowners to determine
critical habitat accurately and should
determine habitat boundaries to the
nearest inch.
Our Response: The loss of habitat
from numerous threats is well
documented throughout the range of the
western yellow-billed cuckoo. One
compendium identifies 480 state-ofknowledge publications about the
threats facing and factors contributing to
the loss of riparian habitat in the West,
including the effects from agriculture,
climate change, dam construction,
disease, drought, nonnative species, fire,
floods, flow regulation, forest
harvesting, grazing, groundwater
depletion, insects, mining, recreation,
roads, water diversions, urbanization,
and water quality (Poff et al. 2012,
entire). We did not include all the
references cited in this publication in
our proposed rule for critical habitat, as
the focus of designating critical habitat
is not threat identification or loss but
determining areas essential to or for the
conservation of a threatened or
endangered species.
Our intent of identifying cattle grazing
in the 2020 revised proposed rule was
not to imply that all cattle grazing
activities are detrimental to habitat for
the western yellow-billed cuckoo; on
the contrary, we mentioned cattle
grazing to identify areas where proper
grazing operations have been
implemented to either coexist or
enhance habitat conditions. We have
clarified the language regarding
livestock grazing in this final rule. Our
economic analysis of the incremental
impacts of critical habitat did not
identify significant costs attributed to
the designation of critical habitat for
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livestock grazing operations throughout
the designation.
Our maps in the proposed and this
final designation follow certain
guidelines to incorporate such maps
within the Federal Register. Exact maps
showing land ownership and details to
the scale recommended by the
commenter are not feasible to include in
the Federal Register. We stated in our
proposed rule and this document that
additional information regarding the
critical habitat can be obtained by
contacting the Lead Field Offices for the
designation.
Comment 80: One group raised
several concerns regarding the
designation. The commenter claims that
the Service does not adequately identify
its rationale for determining and
justifying whether areas are occupied by
the western yellow-billed cuckoo and as
a result fails to justify designating
unoccupied areas. The commenter states
that the Service also needs to further
justify its conservation strategy by
explaining how it comports with the
statutory and regulatory procedures of
the Act. They further state that the
Service underestimates economic costs
by limiting the costs to ‘‘administrative’’
costs, and lastly the textual exclusions
should be expanded beyond ‘‘manmade
structures’’ by revising our definition of
aqueducts to include ditches, canals,
and related structures and include
maintenance and vegetation removal in
right-of-ways.
Our Response: We consider the areas
selected as critical habitat to be
occupied based on survey records, State
Heritage occurrence data, surveys,
published documents, and information
received during the public comment
periods. In our selection of breeding
areas, we used this information and
selected those areas that showed recent
and consistent occupation as a breeding
site or assumed breeding based on
timing and behavior. One of our
purposes of revising the 2014 proposal
was to focus on those areas that
documented this information and not to
designate areas that have sporadic or
low breeding numbers. Because we
appropriately document and justify the
areas as being occupied, we do not
inappropriately negate our obligation to
discuss unoccupied critical habitat. See
Selection Criteria and Methodology
Used to Determine Critical Habitat for a
discussion of our rationale for
determining critical habitat.
In determining critical habitat, as
described in our 2020 revised proposed
and in this final rule, we developed a
conservation strategy to identify those
areas essential to the conservation of the
western yellow-billed cuckoo as defined
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under section 3(5)(A)(i) of the Act.
Because one or more of the physical or
biological features identified for the
western yellow-billed cuckoo occur
throughout most areas occupied by the
DPS, we used the conservation strategy
to assist us in determining those areas
that are essential to the conservation of
the species.
Our economic analysis appropriately
considers those incremental effects of
the designation of critical habitat and
applies costs to the incremental actions
and not additional costs for actions in
unoccupied habitat. As stated above,
because we consider the areas occupied,
the majority of costs associated with the
designation are incremental to costs to
Federal agencies for actions they
conduct, fund, or permit that may affect
the species. With the addition of critical
habitat, Federal agencies will now also
analyze whether their actions within the
critical habitat boundaries result in
adverse modification or destruction of
designated critical habitat, and we
consider those costs to be administrative
in extent.
In regard to expanding our textual
exclusion descriptions, our descriptions
are adequate and the list of manmade
features are merely examples of the
types of features that do not constitute
critical habitat within the designated
areas. The commenter should focus on
whether the feature is manmade and
hardened such that any physical or
biological features would not be present.
In response to vegetation clearing from
right-of-ways see our response to
Comments 7 and 56 above.
Comment 81: One commenter claims
that the Service is reversing its
longstanding view that western yellowbilled cuckoo habitat comprises riparian
woodlands along large streams and that
it needs large areas for breeding. This
change to the Service’s identification of
habitat and use by the species greatly
increases the habitat available for the
western yellow-billed cuckoo. The
commenter estimates that over 65
million ac (26 million ha) of habitat are
available for use by the species based on
the Service’s description and on eBird
record information (Cornell Lab of
Ornithology 2020, entire). The
commenter then concludes that the
Service needs to reevaluate the species’
listing status as threatened because it
did not consider this habitat use and
availability in its 2014 listing
determination.
Our Response: Our identification of
habitat follows our requirements to
specifically identify the areas containing
the physical or biological features
(PBFs) essential to the conservation of
the species. After publication of the
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2014 proposed critical habitat, we
received comments that our description
of the primary constituent elements
(now referred to as PBFs) were not
descriptive enough and did not
characterize habitat specifically for the
western yellow-billed cuckoo. In
response to those comments, we revised
the description of the PBFs to better
describe the habitat used by the species
so that Federal action agencies and the
public could more easily identify such
areas. Except for areas identified as
critical habitat associated with monsoon
influenced habitat in southern Arizona,
we have not significantly changed the
areas considered as breeding areas used
by the western yellow-billed cuckoo.
We have completed our status review of
the western yellow-billed cuckoo,
which includes an evaluation of the
additional habitat used by the species
and found that delisting was not
warranted (85 FR 57816).
Comment 82: One commenter
expressed concern for designating
critical habitat in areas where the
species has not been recently
documented.
Our Response: We used the most
current information available to
determine occupancy of areas we are
designating as critical habitat. The
information we used included State
natural heritage data, survey
information, section 10 permit reports
as well as online public occurrence
information (Cornell Lab of Ornithology
2020, entire). We solicited for and
received additional occupancy
information during our public comment
periods. A part of our selection criteria
was to not identify areas with older or
limited detection information so that we
could focus the critical habitat
designation on areas with relatively
large numbers and consistent
occupation within the timeframe we
chose to determine occupancy (see
Selection Criteria and Methodology
Used to Determine Critical Habitat).
Comment 83: Multiple commenters
were in favor of conservation efforts to
protect the western yellow-billed
cuckoo. However, one commenter
expressed concern that critical habitat
designation would burden State
regulatory agencies and restrict
conservation activities on private lands.
Our Response: We are statutorily
required to designate critical habitat for
a federally listed species if it is
determined to be both prudent and
determinable. We made a determination
that critical habitat was both prudent
and determinable in our proposed and
revised proposed critical habitat rules
(79 FR 48548 and 85 FR 11458,
respectively). The designation of critical
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habitat does not specifically restrict
activities on private lands unless those
activities require Federal approval or are
federally funded. Some third party
entities (e.g., State or County
governments) may require additional
regulatory reviews and other
requirements as a result of the area’s
inclusion as critical habitat, but those
additional reviews are not a requirement
under the Act. We welcome the
implementation of conservation
measures that would benefit the western
yellow-billed cuckoo and its habitat as
long as those activities take into account
impacts to the species either through
section 7 or section 10 of the Act.
Comment 84: Several local
government entities raised concern that
designation of critical habitat in
Colorado (Units 68 and 69) could have
severe economic impacts to areas of
significant agricultural production in
Colorado that rely on continued
operation of irrigation facilities.
Our Response: Our economic analysis
did not find that there would be
significant economic impacts to
agriculture from the designation of
critical habitat. This includes impacts to
third party entities such as local
governments or private landowner
activities. The majority of impacts to
agricultural stakeholders are associated
with listing of the species as threatened
under the Act and remain unchanged by
this designation.
Comment 85: Several commenters
stated that Unit 68 should not be
designated as critical habitat because
designation could delay and derail
restoration activities and construction of
the recreational Riverfront Trail, and
inhibit management of local riverfront
parks.
Our Response: We fully support
riparian restoration activities such as
tamarisk removal and willow or
cottonwood plantings, which benefit the
public as well as listed and non-listed
native species. The designation of
critical habitat in Unit 68 would not
prevent further restoration activities
along the Colorado riverfront area;
rather, it could help support continued
restoration actions and potential
additional funding. Additionally, since
the time of initial proposed critical
habitat in 2014 (79 FR 48548), much of
the Riverfront Trail and associated
development has already been
completed. We understand the
perception that there could be economic
and recreation opportunities affected by
the designation. For Federal projects in
the area, consultation with the Service
is already required because it is within
the known range of the species.
Designating critical habitat in the area
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does not change that; it just ensures that
Federal projects do not cause adverse
modification to western yellow-billed
cuckoo habitat. Although there is
further development planned for the
riverfront area, most of these actions are
not in conflict with designation of
critical habitat because the areas being
developed in the area do not provide the
physical and biological features needed
for western yellow-billed cuckoo and
are not critical habitat by definition.
Comment 86: Several commenters in
Colorado requested more public
outreach and information regarding the
designation and potential economic
impacts of critical habitat.
Our Response: For the proposed and
revised proposed designation, we
noticed and provided public outreach
directly and indirectly to city and local
entities. In conducting outreach, we
strove to engage the public through
multiple traditional and social media
outlets. The 2020 economic analysis
found that most economic impacts from
critical habitat designation are due to
perceived increases in Federal
regulation, especially on property
values, rather than actual regulations.
To this extent, our Grand Junction
Ecological Services Field Office is
available to meet to clarify the
implications of critical habitat
designation.
Comment 87: One group requested
elimination of all proposed critical
habitat within Delta County, Colorado.
Our Response: We have considered
and applied the best scientific and
commercial information available
regarding the designation of critical
habitat for the western yellow-billed
cuckoo. Due to the continued
occupancy and breeding of western
yellow-billed cuckoo in the North Fork
of the Gunnison River and alignment of
the area with our conservation strategy,
we consider the areas identified as
critical habitat to be appropriate and
essential to the conservation of the
species. In regard to the commenter’s
request to exclude areas from the critical
habitat designation, the commenters
provided no specific information or
reasoned rationale as described in our
preamble discussion in our Policy on
Exclusions (81 FR 7226) and as
requested in our revised proposed rule
designating critical habitat for the
western yellow-billed cuckoo (85 FR
11502) to support requests for
exclusion. For the Service to evaluate an
exclusion request, the commenter must
provide supporting information
concerning how their activities would
be limited or curtailed by the
designation. Therefore, we did not
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exclude any areas in Delta County,
Colorado.
Comment 88: A commenter expressed
concern that critical habitat would affect
9 outfall locations in natural drainages,
19 open (un-piped) and 3 piped
historical outfalls to the Colorado River,
as well as municipal drainage facilities.
The risk of flooding increases if they are
not able to clear drainages.
Our Response: Designation of critical
habitat would only affect actions funded
or permitted through a Federal nexus. In
such circumstance, the Federal agency
would need to consult with the Service
and conduct an adverse modification
analysis if the proposed action would
impact designated critical habitat.
Federal agencies are already required to
consult with the Service if their actions
would affect the species.
Comment 89: One group commented
that critical habitat should also be
designated on the Gunnison River,
south of Delta, Colorado; along the
Colorado River through McInnis Canyon
National Conservation Area to the Utah
State line; side drainages as well as
main rivers; and areas that could
become habitat in the future if managed
better. Similarly, another commenter
stated that areas on Plateau Creek
between Collbran and Plateau Valley,
and areas in Hotchkiss and Paonia that
require restoration should be included
in the designation.
Our Response: Although western
yellow-billed cuckoo may migrate
through the habitat in areas along the
Gunnison River and the Colorado River
west of Grand Junction, we focused our
critical habitat designation on areas
occupied at the time of listing that
provide the patch sizes generally
preferred by western yellow-billed
cuckoo for breeding, and avoided
selection of small and isolated riparian
areas (85 FR 11464). We identified
critical habitat in areas that are
currently used for breeding and contain
the PBFs essential to the conservation of
the species. We have determined that
these areas are sufficient and meet our
requirements of designating critical
habitat for the species and did not look
at areas that didn’t meet our breeding
criteria or needed restoration and were
unoccupied such as those identified by
the commenters.
Comment 90: Mesa County, Colorado,
commented that the economic analysis
is not specific to Mesa County and the
Grand Valley and is concerned over
restricted land use, especially in
Palisade where there are many
vineyards and orchards.
Our Response: The draft economic
analysis describes the estimation of
economic impacts from designating
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critical habitat. The analysis describes
the primary cost associated with
designating critical habitat from
additional analysis in section 7
consultation for effects to critical habitat
and adverse modification. The
rangewide administrative burden
resulting from the designation was
found to be not significant and no single
area identified as critical habitat was
found to have disproportionate cost
requiring additional analysis. Orchards
and vineyards do not contain the
physical or biological features essential
to the conservation of the species and
are therefore not considered critical
habitat, even if those areas are within
the critical habitat boundary.
Comment 91: Commenters
recommended that critical habitat be
designated in southeastern Colorado on
the Upper Rio Grande and Conejos
Rivers because the San Luis Valley
Habitat Conservation Plan seems more
protective of southwestern willow
flycatcher and yellow-billed cuckoo
critical habitat should be designated
independent of any other species’
critical habitat.
Our Response: We revised critical
habitat units for the 2020 revised
proposed rule in accordance with the
conservation strategy described within
the document. In addition to the
protections to western yellow-billed
cuckoo from the HCP, the previously
proposed units did not meet the
conditions of our conservation strategy
to designate critical habitat, because the
number of breeding pairs was low or
because breeding was intermittent.
Comment 92: Multiple commenters
recommended that the Service designate
critical habitat in unoccupied areas to
allow expansion of the current occupied
range.
Our Response: We have considered
and applied the best scientific and
commercial information available
regarding designation of critical habitat
for the western yellow-billed cuckoo.
We have determined that we can better
conserve the species by focusing on
occupied breeding areas that have been
and are consistently used by the species.
As a result we developed a conservation
strategy that identified certain areas
throughout the species range. The extent
and distribution of these areas along
main-stem rivers throughout the
species’ breeding range and the
migratory behavior of the western
yellow-billed cuckoo allows these areas
to naturally be used as pathways and
stop-over habitat. As a result, the
designation of unoccupied areas is not
necessary or justified.
Comment 93: Two commenters
requested that proposed exclusions in
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Units 68 and 69 be avoided pending
verification of appropriate management
plans for those areas.
Our Response: In our proposed and
this final rule, we did not identify or
exclude areas from Unit 69 (CO–2)
because no information was provided to
support their request for conducting an
analysis. We have considered the
management plans for Colorado State
lands in Unit 68 and find that the
benefits of excluding these areas
outweigh the benefits of designation of
critical habitat in these areas and that
the exclusion will not lead to the
extinction of the species. As a result, we
have excluded certain areas from Unit
68 from the final designation. See
Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General.
Comment 94: In 2014, one commenter
stated that there is not enough
information about proposed critical
habitat sites in Colorado (previously
identified as Units 54 and Units 57–60)
to exclude or include them in critical
habitat and that the Service did not fully
consider a peer-reviewer’s
recommendations of three additional
sites to consider: Collbran/Plateau City
(Plateau Creek in Mesa County),
sections of the La Plata River (La Plata
County, Colorado), and sections of the
Piedra River (La Plata County,
Colorado), where birds have been
detected on private property during the
breeding season but suitable habitat is
dependent on irrigation ditches for
water.
Our Response: We revised critical
habitat units for the 2020 revised
proposed rule in accordance with the
conservation strategy described within
the document. We have considered and
applied the best available scientific and
commercial information regarding
habitat for the western yellow-billed
cuckoo, including all peer-reviewed and
public comments. We reviewed all areas
identified by the commenter as to
whether they met our goals identified in
our conservation strategy and criteria for
designation. We have determined that
the additional areas identified by the
peer reviewer did not meet our
designation criteria due to lack of
breeding information and suitable
habitat requiring additional
management.
Comment 95: One organization
requested the Service provide details on
the ‘‘other’’ category of Table 1 (85 FR
11477–11478) for Units 68 and 69 in
Colorado.
Our Response: The ‘‘other’’ category
contains all property owned by
counties, cities, private landowners, or
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unknown ownership. Table 1 has been
updated with new parcel information
for Unit 68 with 2,766 total ac (1,119 ha)
in the ‘‘other’’ category. This includes
approximately 500 ac (202 ha) owned by
cities, 106 ac (43 ha) owned by Mesa
County, approximately 14 ac (6 ha)
owned by a nongovernmental
organization, 1,302 ac (527 ha) privately
owned, and 844 ac (342 ha) with
unknown ownership. Unit 69 has not
been changed, and ownership is also
identified in Table 1. The implications
of critical habitat designation on lands
in the ‘‘other’’ category do not differ
amongst each other, as effects to critical
habitat would need to be considered
only in the case of a Federal nexus.
Comment 96: One commenter stated
that the Service should consider the
economic benefits of wildlife and bird
watching and recreation in riparian
habitats.
Our Response: In our economic
analysis, data limitations prevented us
from quantifying such additional
economic benefits. Quantification of
these benefits would require primary
research and the generation of
substantial amounts of new data, which
is beyond the scope of our analysis and
Executive Order 12866. Although the
information regarding economic benefits
is important, we cannot determine those
benefits at this time.
Comment 97: The group commented
on Unit 67 (ID–3) of the revised
proposed rule and suggested revisions
to the unit description and
recommended deleting several threats
regarding water delivery and hydrologic
functioning identified in Table 2
(Threats to Habitat and Potential Special
Management Considerations). The
commenter stated that water
management actions and existing
hydrology are sufficient to support the
critical habitat designation on the
Henry’s Fork River and South Fork of
the Snake River. The Henry’s Fork
Foundation provided information
regarding a hydrologic study being
conducted by Utah State University
through funding from a partnership of
several Federal, State, and other
stakeholders of existing water
management in the Snake River basin to
support its request.
Our Response: As a result of
comments, we revised the unit
description for Unit 67. In the
Application of the ‘‘Adverse
Modification’’ Standard section, we
address existing water management
operations in place on riverine segments
identified as critical habitat, unless
modified subsequent to this revised
designation, and state that these
operations are unlikely to have any
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discernible effect on the quantity,
quality, or value of the PBFs of the area
identified as critical habitat for the
western yellow-billed cuckoo since
these areas support western yellowbilled cuckoo habitat and breeding with
the existing management in place. That
is, when evaluating the effects on
critical habitat, we consider ongoing
water management operations within
the designated units that are not within
the agencies’ discretion to modify to be
part of the baseline of an effects
analysis. Reclamation is mandated
through the Flood Control Act of 1944
[16 U.S.C. 460d (and various sections of
titles 33 and 43 U.S. Code)] to manage
water operations on the South Fork and
the Henry’s Fork of the Snake River.
Therefore, the management and flows of
the South Fork and the Henrys Fork of
the Snake River are not expected to be
impacted by the designation of critical
habitat. As a result, we have revised the
actions that may require special
management considerations from Table
2 of this final rule.
Comment 98: Several commenters
recommended in 2014 and 2020 that the
Service extend Unit 67 (ID–3) to include
additional areas upstream of the unit
and to add more cottonwood forest
lands managed by the BLM and the
USFS along the Henry’s Fork and South
Fork of the Snake River upstream to
Palisades Dam. Further, the commenter
suggested including the USFS and BLM
island complex of habitat in Swan
Valley, Idaho, where western yellowbilled cuckoos were detected by Idaho
Department of Fish and Game survey
crews in 2011. One of the commenters
suggested including the Boise River
from eastern Boise to the Snake River.
Our Response: We reviewed the
information regarding western yellowbilled cuckoo occurrence and habitat
upstream of the area described in our
2014 proposed critical habitat and
revised Unit 67 (ID–3) as described in
our 2020 revised proposed critical
habitat designation to include the
additional areas as requested.
The Swan Valley locations
recommended for inclusion constitute
habitat supportive of the western
yellow-billed cuckoo; however, they are
isolated from other areas of habitat, and
the observation record indicates it is
only sporadically occupied. The Boise
River is considered to be periodically
used by western yellow-billed cuckoo as
stop-over habitat, but also does not have
consistent use associated with breeding
individuals of the species. As a result,
we did not consider critical habitat in
these areas based on our Conservation
Strategy and criteria for designating
critical habitat.
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Comment 99: One group stated that
the western yellow-billed cuckoo appear
only sporadically in Idaho and do not
currently exist there. They state that the
species has not suffered from loss of
habitat and that the designation of
critical habitat will not increase western
yellow-billed cuckoo populations. They
further state that the Service has not
considered the negative impact on the
economy and that the designation of
critical habitat will be extremely
detrimental to private and locally
owned property.
Our Response: The current range of
the western yellow-billed cuckoo
includes portions of or the entire States
of Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon,
Texas, Utah, and Washington as well as
into southwestern British Columbia,
Canada. However, the breeding range for
the species has contracted with a
northern extent in southeastern Idaho.
Western yellow-billed cuckoos
consistently use habitat along the South
Fork Snake River, Henry’s Fork Snake
River, and the mainstem Snake River
(Reynolds and Hinckley 2005; IDFG
2013). As identified in our final listing
rule, one of the reasons for decline of
the breeding range for the species has
been habitat loss. We are required to
designate critical habitat for threatened
and endangered species under the Act.
Several benefits of critical habitat are
that it requires Federal agencies to
consult with the Service to avoid
destruction or adverse modification of
critical habitat and identifies areas to
focus conservation. Increasing
populations may or may not be an
outcome of a designation of critical
habitat, but are not a requirement for
designation.
The designation of critical habitat
does not authorize the Service to
regulate private actions on private lands
or to confiscate private property as a
result of a critical habitat designation.
Designation of critical habitat does not
affect land ownership or establish any
closures or restrictions on use of or
access to the designated areas. Critical
habitat designation also does not
establish specific land management
standards or prescriptions, although
Federal agencies are prohibited from
carrying out, funding, or authorizing
actions that would destroy or adversely
modify critical habitat. We conducted
an economic analysis on the revised
proposed critical habitat designation.
The economic analysis took into
consideration the incremental economic
impacts above those associated with
listing of the species as threatened
under the Act. Because the species is
listed, private and local land-owners
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would still be subject to section 7 (if
their actions require Federal funding or
permitting) and section 10 under the
Act. Our economic analysis did take
into consideration ‘‘third party’’
requirements that may be implemented
by local (State, county, or city entities)
as a result of the designation; however,
the analysis did not identify these
requirements as significant enough to be
identified as requiring additional review
or require the areas to be excluded
under section 4(b)(2) for economic
reasons.
Comment 100: One group stated that
neither current land management
practices nor regulatory processes are in
place to account for the decline of
habitat through the reduction of
understory vegetation from grazing and
water management practices. The
commenter contends that the Service
should recognize that understory
vegetation is equally important as
overstory vegetation to suitable western
yellow-billed cuckoo habitat. The group
recommended: (1) Improving
management of livestock; (2) listing
western yellow-billed cuckoo as
endangered; (3) prohibiting pesticide
use in critical habitat units or extremely
careful management; (4) including
designated critical habitat units farther
upstream and downstream of the
proposed units; (5) including tributaries
with the basic habitat needs; (6) working
with all willing property owners to
restore habitat to be more continuous;
and (7) designating unoccupied areas
that are strategically located along
migratory pathways to the units.
Our Response: In listing the western
yellow-billed cuckoo under the Act, we
took into consideration land
management and regulatory processes
that are already in place and that may
protect its status, and we determined
that the species may become
endangered in the foreseeable future as
a threatened species without measure to
alleviate the species’ threats. In our
revised proposed rule, we identified
both overstory and understory habitat
structure and components as physical or
biological features for the species. We
based our designation on our
conservation strategy and developed
specific designation criteria to identify
those areas essential to the conservation
of the species as critical habitat. The
extent of the units and whether to
identify unoccupied units were part of
our analysis in considering which areas
meet the definition of essential for the
western yellow-billed cuckoo. The
amount and extent of the designation
and limitation to occupied breeding
areas are appropriate and supported by
our rationale for determining critical
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habitat for the species (see Criteria Used
To Identify Critical Habitat
(Conservation Strategy).
Comment 101: One private company
commented that while it recognizes that
consultation would be required if a
transmission line was rebuilt, ongoing
operations and maintenance of
preexisting lines (rights-of-way areas)
should be included in the baseline
analysis. The company requested that
American Falls Reservoir not be subject
to consultation requirements, because
the reservoir has been in operation since
1927 and the effects of the action are
ongoing.
Our Response: Rights-of-way are
agreements that impose a status on the
use of lands rather than describing the
condition of the land as humanmade
structures. Because actions taking place
within rights-of-way areas may impact
the habitat conditions for the western
yellow-billed cuckoo, consultation with
the Service may be required. In the
Application of the ‘‘Adverse
Modification’’ Standard section, we
address that existing water management
operations in place on riverine segments
identified as critical habitat, unless
modified subsequent to this revised
designation, are unlikely to have any
discernible effect on the quantity,
quality, or value of the PBFs of the area
identified as critical habitat. That is,
when evaluating the effects on critical
habitat, the Service considers mandated
water management operations within
the designated units that are not within
the agencies’ discretion to modify to be
part of the baseline. See also our
response to Comments 7 and 56
regarding rights-of-way.
Comment 102: One commenter stated
in 2014 that the Service appears to be
acting on insufficient knowledge of
which areas within Unit 52 (now Unit
37: NM–6A and NM–6B) are occupied
by the western yellow-billed cuckoo,
and proposes that further studies are
necessary to determine which specific
sites are appropriate for designation
according to the comparative benefits
criteria spelled out for determining
exclusion under section 4(b)(2) of the
Act.
Our Response: Since 2014, formal
protocol surveys have been completed
in the area of this Unit that is now
designated as critical habitat and further
support our previous conclusion that
the area supports the occupancy of
western yellow-billed cuckoos by the
criteria specified in the Selection
Criteria and Methodology Used to
Determine Critical Habitat section of the
2020 revised proposed rule (85 FR
11458) and this final designation.
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Comment 103: In 2014 and 2020, one
commenter requested exclusion of the
U-Bar Ranch in New Mexico based on
the commenter’s Management Plan,
which provides conservation to the
western yellow-billed cuckoo and its
habitat.
Our Response: The Service commends
the longstanding monitoring and
restoration efforts specifically along the
U-Bar Ranch that have been undertaken
by the landowner. We have conducted
an exclusion analysis and have
excluded U-Bar Ranch lands from this
final designation. See Exclusions Private
or Other Non-Federal Conservation
Plans or Agreements and Partnerships,
in General.
Comment 104: One commenter
expressed its support for efficient
Federal water and power projects and
would like the Service to further clarify
the riparian areas that were included or
combined into a single larger critical
habitat unit (as described in 85 FR
11465). The commenter also commented
that the commenter would like existing
and future power lines within western
yellow-billed cuckoo critical habitat to
be excluded from the final critical
habitat designation.
Our Response: As described in our
revised proposed rule (85 FR 11465), the
areas of habitat that were included or
combined into a single larger unit
depended on the extent of use of the
areas by western yellow-billed cuckoo,
the relative amount of habitat gained if
the multiple patches were included or
combined, the relationship of the area to
the overall designation, and the ease or
complexity of removing all nonhabitat
from the designation. Also western
yellow-billed cuckoo habitat in ideal
conditions is dynamic and requires
areas for regrowth. By including some
open areas, we take into consideration
this opportunity for natural regrowth of
habitat. The suitability of individual
patches within a unit may vary over
time as far as abundance of occupancy
or amount of PBFs present and would
need to be evaluated on a case-by-case
basis and would adjust over time.
In the event that powerline
construction and/or maintenance result
in adverse effects to the species and/or
critical habitat, consultation with the
Service is expected to occur to provide
exemptions to the prohibitions of
section 9 in the Act. As noted above, our
Policy on Exclusions outlines the
procedures we follow for considering
and conducting exclusions (81 FR
7226). In this case, the commenter
provided general statements of its desire
for rights-of-way to be excluded but did
not provide any additional information
or a reasoned rationale that would
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support the request for exclusion. In
addition, any hardened structures (such
as buildings, aqueducts, runways, roads,
bridges, and other paved or hardened
areas as a result of development) and
the land on which they are located is
not considered to be critical habitat.
Accordingly, the transmission towers
are already not part of the designation.
However, the rights-of-way associated
with the power transmission lines may
contain vegetation and habitat
containing the physical or biological
features essential to the conservation of
the western yellow-billed cuckoo.
Because no additional information was
provided to support the request for
exclusion, these areas are not excluded
from the designation.
Comment 105: Several commenters
stated that there are already
conservation plans and strategies as
well as habitat protections for other
federally listed species overlapping with
the revised proposed critical habitat
unit(s). In addition, they state that
critical habitat is already designated for
other species (such as the southwestern
willow flycatcher) that fundamentally
have the same habitat requirements
(PBFs) as the western yellow-billed
cuckoo. Therefore, in the view of these
commenters, designation of critical
habitat for the western yellow-billed
cuckoo is redundant and not necessary.
Our Response: As part of the listing
process, we are required to designate
critical habitat for species listed as
threatened or endangered under the Act.
Although conservation measures may be
implemented for other species and
designated critical habitat for multiple
species may overlap, each species’
critical habitat and conservation
requirements can be different. Critical
habitat comprises specific areas
occupied by that species and contains
the physical or biological features that
are essential to the conservation of that
species. The focus of this designation is
to identify and conserve the unique
habitat features of the western yellowbilled cuckoo. While additional
conservation plans and strategies for
other federally listed species may
provide benefits to western yellowbilled cuckoo and its habitat, we base
our critical habitat designations on what
is uniquely necessary for the western
yellow-billed cuckoo and its specific
habitat requirements. In addition, if the
other species protected by any
preexisting conservation programs were
to be delisted, this could eliminate
protections for the western yellowbilled cuckoo and its habitat. In some
cases, such as with the western yellowbilled cuckoo and southwestern willow
flycatcher, the areas used by the two
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species are the same and management
and conservation of those areas would
benefit both species. However, the
ecological niche and certain physical or
biological features needed by the two
species are different such as habitat
patch size and nest site selection. In
addition, the range of the southwestern
willow flycatcher does not include the
entire breeding range of the western
yellow-billed cuckoo. As a result, if we
relied only on critical habitat for the
southwestern willow flycatcher to
provide protection for the western
yellow-billed cuckoo, large areas of the
species’ breeding range would not be
designated.
Comment 106: Several commenters
stated that the proposed critical habitat
includes unsuitable, unoccupied
habitat, and thus should not be included
in our final critical habitat designation.
Our Response: We based our
designation on the best scientific and
commercial information available
including information on occupancy
and use of areas we are considering as
critical habitat. This included gathering,
reviewing, and evaluating information
from multiple sources including
information from State wildlife
agencies, State Natural Heritage
databases, Cornell Lab of Ornithology
(eBird data), researchers,
nongovernment organizations,
universities, and consultants, as well as
information from our files. During our
process for proposing and finalizing this
designation of critical habitat, we used
a systematic approach to assess
potential critical habitat throughout the
designation that included an analysis of
habitat that contained the physical or
biological features that are essential to
the conservation of the species.
Comment 107: Multiple commenters
stated that oil and gas development will
be negatively impacted by designating
critical habitat. One commenter stated
that the economic analysis fails to
consider impacts to oil and gas
development.
Our Response: Under section 4(b)(2)
of the Act, economic and social impacts
are considered in the process for
designating critical habitat for species
listed under the Act. Our economic
analysis did not find that oil and gas
development would be significantly
impacted by the designation of critical
habitat. Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) takes into account
effects to oil and gas development that
could potentially result from
designating critical habitat. We do not
expect that a critical habitat designation
for the western yellow-billed cuckoo
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would significantly affect energy
supplies, distribution, or use, because
the areas identified as critical habitat are
along riparian corridors in mostly
remote areas with little energy supplies,
distribution, or infrastructure. In areas
where the western yellow-billed cuckoo
is present, Federal agencies are required
to consult with our agency under
section 7 of the ESA on activities they
fund, permit, or implement, which may
affect the species. Section 7(a)(1) of the
ESA charges Federal agencies to aid in
the conservation of listed species, and
section 7(a)(2) requires the agencies to
ensure that their activities are not likely
to jeopardize the continued existence of
listed species or adversely modify
designated critical habitats. In our
economic analysis, we identified oil and
gas development as an activity and
considered the impact of critical habitat
on those activities. Because section 7
consultation is already required for
Federal projects that could impact
western yellow-billed cuckoo, the
additional process necessary to avoid
the destruction or adverse modification
of critical habitat would be a minor
additional step in the existing
consultation process. Therefore,
economic impacts to oil and gas
development would be minimal as a
result of this critical habitat designation.
Comment 108: A commenter stated
that western yellow-billed cuckoo
surveys are incomplete and that some
areas that should have been included in
our proposed critical habitat designation
were incorrectly excluded.
Our Response: The Service is required
to use the best scientific or commercial
information available in determining
critical habitat. We accomplish this by
gathering, reviewing, and evaluating
information from multiple sources prior
to designating critical habitat.
Information, including surveys, used for
the western yellow-billed cuckoo
critical habitat analysis was obtained
from reports prepared by several entities
including the U.S. Geological Survey
(USGS), USFS, NPS, BLM, Reclamation,
State wildlife agencies, State Natural
Heritage databases, Cornell Lab of
Ornithology (eBird data), researchers,
nongovernmental organizations,
universities, and consultants, as well as
information from our files. Because we
listed the species as threatened in 2014,
we used information up to that point in
determining occupancy for determining
whether the areas considered as critical
habitat would fall under section
3(5)(A)(i) as being occupied at the time
of listing or section 3(5)(A)(ii) as being
occupied after the time of listing. We
also reviewed records subsequent to
listing (2015–2019) to confirm
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occupancy of the areas being
designated.
Comment 109: A commenter stated
that the Service is considering
designating western yellow-billed
cuckoo critical habitat in every place
where the species occurs, instead of
limiting it to just the locations that are
necessary for recovery.
Our Response: We are not designating
critical habitat in every place where the
species occurs. Part of our conservation
strategy and criteria for designating
critical habitat for the western yellowbilled cuckoo were intended to focus
the designation on breeding areas larger
than 200 ac (81 ha) in extent. The
western yellow-billed cuckoo still
occurs in areas throughout its historical
range from Texas to south-western
British Columbia, Canada. We did not
designate critical habitat in Nevada,
Oregon, or Washington or in other areas
in States where, although there is
confirmed breeding, the areas are not
part of our conservation strategy.
Comment 110: A commenter stated
that alternate survey methods should
have been used to identify occupied and
suitable habitat for the western yellowbilled cuckoo.
Our Response: We recognize that due
to the reclusive nature of the western
yellow-billed cuckoo, the remoteness of
some areas it occupies, the difficulty in
conducting surveys, and inconsistent
survey methodology, the majority of the
species’ range has not been surveyed on
a regular basis or may not have
comparable survey data to give an
absolute determination of population
distribution and occupancy. However,
despite these survey challenges, key
areas throughout the western DPS have
been surveyed more consistently and
give some indication of persistence and
site fidelity. Therefore, we based our
analysis of occupancy on detection
records starting in 1998 and ending in
2014, when we listed the western
yellow-billed cuckoo as a threatened
species. The 1998 to 2014 timeframe
was chosen because it includes the last
statewide western yellow-billed cuckoo
surveys in areas where the majority of
individuals within the DPS’s range
occurs and represents the best available
information on long-term occupancy.
For the 2020 revised proposed rule, we
proposed additional units we consider
to have been occupied at the time of
listing using new data received through
the 2017 breeding season. To further
support designation of these units, we
used additional occupancy or nesting
data up until the 2020 breeding season.
Comment 111: A commenter stated
that HCPs should not be used to exclude
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areas from critical habitat designation
for the western yellow-billed cuckoo.
Our Response: HCPs are typically
required as part of an application for an
incidental take permit through section
10 of the Act for actions that would
occur on private lands and would
impact federally listed species. We
conduct internal section 7 consultation
on issuance of the incidental take
permit under section 10. These plans
must include how impacts would be
minimized or mitigated to the maximum
extent practicable, and therefore provide
a level of protection for listed species.
In excluding HCPs, we conduct a
balancing analysis and compare the
benefits of excluding areas verses the
benefits of including areas as critical
habitat. For exclusions under section
4(b)(2) of the Act, the Secretary has
broad discretion on excluding areas
from critical habitat. See Exclusions
Private or Other Non-Federal
Conservation Plans Related to Permits
Under Section 10 of the Act for a
discussion of the HCPs being excluded
and the balancing analysis as well as
our rationale for exclusions.
Comment 112: One commenter stated
that we should exclude areas that are
managed by Federal agencies from
critical habitat designation for western
yellow-billed cuckoo.
Our Response: Federal agencies are
required to conserve endangered and
threatened species and utilize their
authorities to further the purposes of the
Act. Critical habitat is a mechanism
under the Act that requires that actions
that Federal agencies conduct, permit,
or fund not adversely modify the areas
identified as critical habitat for an
endangered or threatened species. As a
result, Federal agencies are in a position
to uniquely contribute to sensitive
species management and conservation.
Wholesale exclusion of Federal lands or
areas managed by Federal agencies
would remove the intended
conservation components intended
under the Act. However, under section
4(b)(2) of the Act, the Secretary may
exclude Federal lands in certain
circumstances from designation if the
benefits of exclusion outweigh the
benefits of inclusion and exclusion will
not lead to the species extinction. As
noted above, consideration of possible
exclusions from critical habitat are in
the Service’s discretion, but we have
indicated that a proponent should
provide information or a reasoned
rationale (81 FR 7226) and we
specifically solicited such information
in our revised proposed designation of
critical habitat for the western yellowbilled cuckoo (85 FR at 11502) In this
case, the commenter has not provided
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information to support the requested
exclusion. Although we have excluded
some Federal lands from the
designation, we find that excluding all
Federal lands from the designation for
the western yellow-billed cuckoo is not
appropriate.
Comment 113: Several commenters
claim that the Service did not
adequately consider economic impacts
as a result of designating critical habitat
for the western yellow-billed cuckoo,
and another commenter stated that
agricultural operations will be
negatively impacted by designating
critical habitat for the western yellowbilled cuckoo.
Our Response: We developed an
economic analysis of the incremental
effects of designating critical habitat and
made the document available, along
with our analysis and findings, in
connection with publishing our
proposed rule and revised proposed rule
(see IEc 2019 entire; IEc 2020, entire).
Our analysis took into consideration
those activities within the critical
habitat areas. The commenter did not
provide alternative information or data
to suggest our economic analysis and
review was insufficient but point to
costs that may be part of the species’
listing and not to those actions solely as
a result of the designation of critical
habitat.
When we mapped the boundaries for
the proposed critical habitat, we
avoided identifying agricultural lands
within the proposed designation
because these lands generally do not
provide the physical or biological
features that are essential to the
conservation of the western yellowbilled cuckoo. In addition, any
agricultural lands included within the
boundary of the proposed designation
would likely not be considered critical
habitat because these lands do not
contain the physical or biological
features necessary for yellow-billed
cuckoo habitat. In our evaluation of the
economic impacts that may result from
the proposed designation of critical
habitat for the western yellow-billed
cuckoo (IEc 2019, entire; IEc 2020,
entire), we identified probable
incremental economic impacts
associated with agriculture and found
that the critical habitat designation for
the western yellow-billed cuckoo would
not significantly affect agricultural
operations.
Comment 114: Multiple commenters
requested that the economic analysis
follow the Tenth Circuit’s requirement
to adopt a ‘‘cumulative’’ or ‘‘coextensive’’ approach to quantifying
impacts.
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Our Response: Because the primary
purpose of the economic analysis is to
facilitate the mandatory consideration of
the economic impact of the designation
of critical habitat, to inform the
discretionary section 4(b)(2) exclusion
analysis, and to determine compliance
with relevant statutes and Executive
orders, the economic analysis should
focus on the incremental impact of the
designation. The economic analysis of
the designation of critical habitat for the
western yellow-billed cuckoo follows
this approach.
The Service acknowledges that
significant debate has occurred
regarding whether assessing the impact
of critical habitat designations using the
incremental approach is appropriate,
with several courts issuing divergent
opinions. Most recently, the Ninth
Circuit concluded that the incremental
approach is appropriate (Home Builders
Association of Northern California v.
United States Fish and Wildlife Service,
616 F.3d 983 (9th Cir. 2010); Arizona
Cattle Growers v. Salazar, 606 F.3d 1160
(9th Cir. 2010)). Subsequently, on
August 28, 2013, the Service revised its
approach to conducting impact analyses
for designations of critical habitat,
specifying that the incremental
approach should be used (78 FR 53062).
Comment 115: One commenter stated
that the economic analysis for this
action should not use the economic
analysis for the designation of critical
habitat for the southwestern willow
flycatcher as the basis for its estimates.
The commenter stated that the
southwestern willow flycatcher analysis
failed to include significant cost
elements, including registration of
pesticides under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)
and costs to water management and use.
Our Response: The revised screening
analysis for the proposed critical habitat
designation does not use the costs
projected in the southwestern willow
flycatcher economic analysis to inform
its estimated costs. Instead, the
economic analysis for the western
yellow-billed cuckoo relies on the
consultation history for the western
yellow-billed cuckoo since its listing as
a threatened species in 2014, compiled
from the Service’s Tracking and
Integrated Logging System (TAILS)
database. Reference to the southwestern
willow flycatcher is made simply with
regard to identifying existing baseline
regulatory protections that overlap the
geographic areas proposed for
designation in this rulemaking.
Comment 116: Multiple commenters
expressed concern that the economic
analysis generally understates the
direct, indirect, and induced costs;
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regulatory delays; and other economic
effects expected to result from the
designation of critical habitat.
Our Response: These comments do
not identify specific data sources or
assumptions used in the economic
analysis that may be inaccurate. The
comments also do not provide new
information that could be used to revise
the economic analysis. Section 3 of the
economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation. These baseline protections
result from the listing of the western
yellow-billed cuckoo under the Act and
the presence of the species in all
proposed critical habitat units, as well
as overlap with habitat of other, similar
listed species and designated critical
habitat. As a result of these protections,
the economic analysis concludes that
incremental impacts associated with
section 7 consultations for the western
yellow-billed cuckoo are likely limited
to additional administrative effort. The
analysis forecasts future section 7
consultation activity based on
consultations for the western yellowbilled cuckoo that have occurred since
its listing in 2014. Using these historical
consultation rates and applying
estimated consultation costs presented
in Exhibit 3 of the analysis, we expect
that the additional administrative costs
incurred by critical habitat designation
will not exceed $74,000 in a given year.
Comment 117: Multiple commenters
objected to the screening approach
applied in the economic analysis. In
particular, one commenter noted that
the proposed critical habitat would span
nine geographically diverse States, and
requested that the Service consider
impacts to each local economy
separately rather than grouping these
diverse regions into a single analysis.
Our Response: The primary purpose
of the economic analysis is to facilitate
the mandatory consideration of the
economic impact of the designation of
critical habitat, to inform the
discretionary section 4(b)(2) exclusion
analysis, and to determine compliance
with relevant statutes and Executive
orders. To support these considerations,
the economic analysis estimates costs at
the level of individual critical habitat
units (see Exhibit A–2). The magnitude
of anticipated incremental section 7
costs, based on historical consultation
data for the western yellow-billed
cuckoo following its listing in 2014, is
unlikely to exceed $74,000 in a given
year. These costs are likely to be small
relative to the economies of the
communities, and the majority of these
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costs are borne by the Service and
Federal action agencies.
Comment 118: One commenter
expressed concern about the assumption
used in the economic analysis that
incremental effects will be minimal in
areas currently protected for the
endangered southwestern willow
flycatcher. The commenter noted that, if
the southwestern willow flycatcher
recovers before the western yellowbilled cuckoo, those protections would
disappear. For this reason, the
commenter requested that the Service
not exclude areas from the final
designation of critical habitat for the
western yellow-billed cuckoo based on
the presence of protections for the
southwestern willow flycatcher.
Our Response: Section 3 of the
economic analysis describes several
baseline protections afforded the
western yellow-billed cuckoo in support
of the conclusion that incremental costs
associated with section 7 consultations
are likely limited to administrative
costs. Of these baseline protections, the
primary protection is the concurrent
listing of the western yellow-billed
cuckoo under the Act. Because all
proposed critical habitat units for the
western yellow-billed cuckoo are
considered occupied by the species, all
projects with a Federal nexus will be
subject to section 7 requirements
regardless of whether critical habitat is
designated. In addition, we expect that,
except in cases that cannot be predicted
at this time, project modifications
recommended to avoid adverse
modification of western yellow-billed
cuckoo habitat will be the same as those
needed to avoid jeopardy to the species.
As a result, the section 7-related costs of
designating critical habitat for the
western yellow-billed cuckoo are likely
to be limited to additional
administrative effort to consider adverse
modification in consultation. This
conclusion would not change if the
protections currently afforded the
southwestern willow flycatcher were
removed due to recovery of the
southwestern willow flycatcher.
Although the specific habitat
characteristics and ecological niche
occupied by the southwestern willow
flycatcher and western yellow-billed
cuckoo are different, implementing
conservation actions in the areas where
they co-occur can be managed together.
Numerous plans are in place for the
southwestern willow flycatcher because
of its earlier listing (1995) compared
with the listing of the western yellowbilled cuckoo (2014). We have been
working with entities with southwestern
willow flycatcher management plans to
update their plans to specifically
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include the western yellow-billed
cuckoo. Should the southwestern
willow flycatcher be delisted, we are
certain that individuals with
southwestern willow flycatcher
management plans would continue to
provide conservation for the western
yellow-billed cuckoo and excluding
these areas would most likely further
incentivize these efforts.
Comment 119: One commenter
questioned the per-consultation
incremental administrative costs used in
the economic analysis. The commenter
suggested that the economic analysis
determine administrative costs on a
project-by-project basis.
Our Response: The economic analysis
relies on the best available information
on administrative costs. The costs
presented in Exhibit 3 of the economic
analysis were developed based on data
gathered from three Service field offices
(including a review of consultation
records and interviews with field office
staff); telephone interviews with action
agency staff (e.g., BLM, USFS, Corps);
and telephone interviews with private
consultants who perform work in
support of permittees. In the case of
Service and Federal agency contacts, we
determined the typical level of effort
required to complete several different
types of consultations (i.e., hours or
days of time), as well as the typical
Government Service (GS) level of the
staff member performing this work. In
the case of private consultants, we
interviewed representatives of
consulting firms to determine the
typical cost charged to clients for these
efforts (e.g., biological survey,
preparation of materials to support a
Biological Assessment). The model is
periodically updated with new
information received in the course of
data collection efforts supporting
economic analyses and public comment
on more recent critical habitat rules. In
addition, the GS rates are updated
annually. The economic analysis relies
on this cost model because estimating
incremental administrative costs on a
project-by-project basis would require
the collection of a significant amount of
new data that is beyond the scope of the
analysis.
Comment 120: One commenter cited
a 2003 article by Dr. David Sunding
estimating that total economic losses
from critical habitat designations could
reach $1 million per acre of habitat
conserved.
Our Response: This impact estimate
comes from a stylized example, using a
hypothetical scenario, included in the
article to demonstrate the types of costs
that might result from critical habitat
designations. The example assumes a
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1,000-unit housing development is
planned and that critical habitat
requires land set-asides, reducing the
total number of homes that can be built
to 900. It uses hypothetical data about
the value of those homes and resulting
changes in prices to estimate impacts.
Aside from the fact that this example is
based on stylized information, rather
than actual data, the conditions of the
example are not relevant to the western
yellow-billed cuckoo. As described in
the economic analysis, land set-asides
required through section 7 consultation
or as a result of the implementation of
State laws are unlikely to result solely
from the designation of critical habitat,
given the western yellow-billed
cuckoo’s status as a listed species and
the presence of other listed species and
critical habitat designations.
Comment 121: Multiple commenters
stated that a regulatory flexibility
analysis is required. One commenter
expressed particular concern that the
proposed designation will affect
operations on farms and ranches in the
State of New Mexico. The commenter
noted that these farms and ranches are
typically run by families and are,
therefore, small businesses.
Our Response: Under the Regulatory
Flexibility Act, Federal agencies are
required to evaluate only the potential
incremental impacts of a rulemaking on
directly regulated entities. The
regulatory mechanism through which
critical habitat protections are realized
is section 7 of the Act, which requires
Federal agencies, in consultation with
the Service, to ensure that any action
authorized, funded, or carried by the
Agency is not likely to adversely modify
critical habitat. Therefore, only Federal
action agencies are directly subject to
the specific regulatory requirement
(avoiding destruction and adverse
modification) imposed by critical
habitat designation; family farms and
ranches are not Federal action agencies
and thus are not directly regulated by
this designation. Under these
circumstances, it is the Service’s
position that only Federal action
agencies will be directly regulated by
this designation. Therefore, because
Federal agencies are not small entities,
the Service certifies that the proposed
critical habitat rule will not have a
significant economic impact on a
substantial number of small entities (see
Required Determinations).
Comment 122: One commenter stated
that the economic analysis misinterprets
Executive Order 12866. The commenter
noted that under Executive Order
12866, a significant regulatory action is
one that may ‘‘have an annual effect on
the economy of $100 million or more or
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adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities.’’ The commenter stated
that meeting either of these criteria can
deem an action significant. The
commenter then requests that, as a
result of the magnitude of possible
impacts of public perception described
in the economic analysis, this
rulemaking be considered a significant
action.
Our Response: The revised proposed
rule and this final designation was
identified by the Office of Information
and Regulatory Affairs (OIRA) to be a
significant regulatory action (see
Required Determinations). However, we
have determined that the economic
costs of designating critical habitat for
the western yellow-billed cuckoo are
likely to be limited to additional
administrative effort to consider adverse
modification in consultation, and are
unlikely to exceed $74,000 in a given
year. In addition, the analysis
recognizes that the designation of
critical habitat may cause developers or
landowners to perceive that private
lands will be subject to use restrictions
or litigation from third parties, resulting
in costs. Data limitations prevent the
quantification of the possible
incremental reduction in property
values. However, data on current land
values suggest that even if such costs
occur, the rule is unlikely to meet the
threshold for an economically
significant rule, with regard to costs,
under E.O. 12866. In sum, the economic
analysis finds that the combined total of
section 7 and possible perceptionrelated effects is unlikely to exceed the
threshold for an economically
significant rulemaking, as specified by
E.O. 12866.
Comment 123: One commenter stated
that the Service should supply a
Statement of Energy Effects due to the
potential for critical habitat designation
to affect permitting, operations, and
maintenance of facilities such as the
Hayden Power Plant, the Craig Power
Plant, and other electric transmission
facilities.
Our Response: Executive Order 13211
(Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. The
U.S. Office of Management and Budget
(OMB) has provided guidance for
implementing this Executive order that
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to not taking the
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regulatory action under consideration.
See OMB Memorandum 01–27,
Guidance for Implementing E.O. 13211
(July 13, 2001) (M–01–27), https://
www.whitehouse.gov/wp-content/
uploads/2017/11/2001-M-01-27Guidance-for-Implementing-E.O.13211.pdf. These outcomes include, for
example, reductions in electricity
production in excess of 1 billion
kilowatt-hours per year or in excess of
500 megawatts of installed capacity, or
increases in the cost of energy
production or distribution in excess of
one percent. The economic analysis
finds that the incremental costs of
designating critical habitat for the
western yellow-billed cuckoo are likely
to be limited to additional
administrative effort to consider adverse
modification in consultation. Although
some energy facilities, such as those
identified by the commenter, are located
within the vicinity of the proposed
designation, the proposed critical
habitat is predominantly in remote areas
with little energy supply infrastructure.
The types of incremental administrative
costs described in the economic analysis
are therefore unlikely to result in the
types of outcomes described by OMB in
Executive Order 13211.
Comment 124: One commenter stated
that the economic analysis does not
satisfy the requirements of President
Obama’s February 2012 memorandum
to the Secretary of the Interior
(Presidential Memorandum for the
Secretary of the Interior—Proposed
Revised Habitat for the Spotted Owl:
Minimizing Regulatory Burdens
(February 28, 2012)).
Our Response: The President’s
memorandum primarily provided
direction specific to the consideration of
economic impacts related to the
designation of critical habitat for the
northern spotted owl. However, it also
directed the Service to take prompt
steps to revise its regulations such that
the economic analysis would be
completed and made available for
public comment at the time of
publication of the proposed rule to
designate critical habitat. The Service
issued a final rule revising these
regulations, as requested by the
President, on August 28, 2013 (78 FR
53058). For the western yellow-billed
cuckoo, the incremental effects
memorandum and screening analysis
(collectively, the ‘‘economic analysis’’)
were made available for public
comment at the time of the proposed
critical habitat rule.
Comment 125: Multiple commenters
expressed concern that the economic
analysis does not sufficiently address
the potential benefits of the designation
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of critical habitat. These commenters
stated that the benefits of critical habitat
must be weighed against the economic
costs of the designation. One commenter
estimated that wildlife watchers
contribute $24 million per year to the
local economy along the San Pedro
River in Arizona, and another
commenter cited a survey showing that
the total economic effect associated with
wildlife-watching activities in 2011 was
$1.4 billion.
Our Response: Section 5 of the
economic analysis explains that the
primary intended benefit of critical
habitat designation for the western
yellow-billed cuckoo is to support the
species’ long-term conservation. Critical
habitat designation may also generate
ancillary benefits by protecting the
primary constituent elements on which
the species depends. As a result,
management actions undertaken to
conserve the species or its habitat may
have coincident, positive social welfare
implications, such as increased
recreational opportunities in a region or
improved property values on nearby
parcels.
As described in section 3 of the
economic analysis, incremental changes
in land management are unlikely to
result from the designation of critical
habitat. Furthermore, all of the proposed
critical habitat is considered to be
occupied by the species, thus the listing
of the species also serves as
encouragement for wildlife watchers to
visit these areas. Therefore, in this
instance, critical habitat designation is
unlikely to incrementally affect the
types of ancillary benefits described by
the commenters.
Comment 126: Multiple commenters
were concerned that the designation
may negatively affect residential and
commercial development or otherwise
create economic uncertainty on private
lands. For example, several commenters
stated that the economic analysis should
consider potential costs associated with
the inability of private property owners
to use or sell land on which critical
habitat is designated. According to one
commenter, development projects that
receive Federal funding or otherwise
have a Federal nexus for consultation
could be delayed or cancelled. The
commenter is specifically concerned
about impacts in five units of nonFederal, private land included in the
proposed designation. Other
commenters noted the importance of
trust land sales and property tax
revenue for funding vital services such
as public education, urban and wildland
firefighting, health services, road
maintenance, emergency medical
services, and police protection. In
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particular, one commenter requested
that the economic analysis disaggregate
costs to taxable lands and non-taxable
lands owned by local governments.
Our Response: Section 7 of the Act
does not prohibit the use or sale of land
designated as critical habitat. If, during
section 7 consultation, the Service finds
that the proposed action is likely to
adversely modify critical habitat,
Federal regulation and the Section 7
Consultation Handbook encourage the
Service to identify reasonable and
prudent alternatives that can be
implemented in a manner consistent
with the intended purpose of the action
and that are economically and
technically feasible (see 50 CFR
402.14(h)(3) and p. xxii of the Section
7 Consultation Handbook, respectively).
As described in the economic
analysis, the designation of critical
habitat may cause developers or
landowners to perceive that private
lands will be subject to use restrictions
or litigation from third parties, resulting
in costs. Data limitations prevent the
quantification of the possible
incremental reduction in property
values. However, data on current land
values suggest that even if such costs
occur, the rule is unlikely to meet the
threshold for an economically
significant rule, with regard to costs,
under E.O. 12866.
Comment 127: One commenter noted
that many development activities and
extractive uses that occur on private
lands require Clean Water Act permits
and could therefore be subject to section
7 consultation for the western yellowbilled cuckoo.
Our Response: The Clean Water Act
requires the Army Corps of Engineers to
issue permits for certain activities, and
thus the Corps may serve as a Federal
nexus for many activities occurring in
western yellow-billed cuckoo critical
habitat. The economic analysis
considers the likelihood that activities
on private lands may require Corps
permits in the development of its cost
estimates. It uses the actual, historical
consultation rate for the western yellowbilled cuckoo since its listing in 2014,
which includes consultations on
projects permitted by the Corps.
Comment 128: Multiple commenters
expressed concern about economic
impacts resulting from restrictions on
operations at Lake Isabella. According to
one commenter, Lake Isabella provides
over $38 million annually in economic
benefits related to flood risk
management, irrigation, hydropower,
and recreation. Another commenter
provided a supplemental analysis of
economic impacts related to storage
restrictions at Lake Isabella. This
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commenter stated that storage
restrictions similar to those temporarily
implemented for the benefit of the
southwestern willow flycatcher would
result in net economic losses of $5.4
million to $14.7 million annually over
the next 20 years. Another commenter
estimated up to a 50 percent reduction
in use of the U.S. Forest Service’s
nearby recreation sites, including 10
developed recreation sites, 3 marinas,
and 7 boat launches, if the spillway
height at Lake Isabella is not able to be
maintained.
Our Response: The areas associated
Lake Isabella and reservoir operations
(reservoir area, flood easement areas)
were either not designated or floodplain
areas removed from the designation (see
Comment 4). As a result, we do not
anticipate requesting modifications to
reservoir operations due to the
designation of critical habitat for the
western yellow-billed cuckoo and
provided our analysis that current
spillway construction activities would
not likely impact the species or require
additional conservation. Section 3 of the
economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation. These baseline protections
result from the listing of the western
yellow-billed cuckoo under the Act and
the presence of the species in all
proposed critical habitat units, as well
as overlap with habitat of other, similar
listed species and designated critical
habitat. As a result of these protections,
the economic analysis concludes that
incremental impacts associated with
section 7 consultations for the western
yellow-billed cuckoo are likely limited
to additional administrative effort.
Comment 129: Multiple commenters
expressed concern that the designation
could adversely affect flood control
activities. Commenters stated that
restrictions to farmers’ ability to manage
levee vegetation and drainage
operations may hinder flood control,
resulting in economic and public safety
impacts. One commenter notes that the
Army Corps of Engineers represents a
likely nexus for these activities.
Our Response: We do not anticipate
that flood control operations or
management and maintenance of
existing flood control facilities and
levees would be significantly impacted
by designation of critical habitat. Areas
that have flood and erosion control
structures such as levees and other
hardened features in place would not
contain the physical or biological
features and have been textually
excluded from being considered as
critical habitat. In addition, emergency
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actions to avoid flooding or other
uncontrolled circumstances that may
cause loss of life or property are allowed
according to the emergency consultation
procedures identified under section 7 of
the Act. Section 3 of the economic
analysis outlines the substantial
baseline protections currently afforded
the western yellow-billed cuckoo
throughout the proposed designation.
These baseline protections result from
the listing of the western yellow-billed
cuckoo under the Act and the presence
of the species in all proposed critical
habitat units, as well as overlap with
habitat of other, similar listed species
and designated critical habitat. As a
result of these protections, the economic
analysis concludes that incremental
impacts associated with section 7
consultations for the western yellowbilled cuckoo are likely limited to
additional administrative effort.
Comment 130: Multiple commenters
expressed concern about the potential
impacts of the designation of critical
habitat on water management and water
rights. Commenters noted specific
concerns regarding the following
impacts and their costs: Reallocation of
water rights; restrictions on the use of
unadjudicated water; restrictions on
river management and reservoir
operations; restrictions on river and
habitat restoration projects; restrictions
on drainage operations; and the
implications of such restrictions for
local water supply and local economies.
Our Response: As discussed under the
Application of the ‘‘Adverse
Modification’’ Standard below, we
consider ongoing water management
operations that are not within the
agency’s discretion to modify to be part
of the baseline. All areas identified as
critical habitat where ongoing water
operations exist contain the physical or
biological features necessary to provide
for the essential habitat needs of the
western yellow-billed cuckoo; therefore,
we do not anticipate that the
continuation of existing water
management operations would
appreciably diminish the value or
quality of the critical habitat where they
occur and therefore ongoing water
operations would not be significantly
modified as a result of the designation.
Section 3 of the economic analysis
outlines the substantial baseline
protections currently afforded the
western yellow-billed cuckoo
throughout the proposed designation.
These baseline protections result from
the listing of the western yellow-billed
cuckoo under the Act and the presence
of the species in all proposed critical
habitat units, as well as overlap with
habitat of other, similar listed species
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and designated critical habitat. As a
result of these protections, the economic
analysis concludes that incremental
impacts associated with section 7
consultations for the western yellowbilled cuckoo are likely limited to
additional administrative effort.
Comment 131: Multiple commenters
expressed concern that the economic
analysis did not sufficiently evaluate
potential impacts to livestock grazing
and agricultural activities. Several
commenters requested that the
economic analysis explicitly consider
impacts to agricultural operations
(including water use and use of
pesticides), particularly those that
receive NRCS cost-share grants for
projects such as bank stabilization,
irrigation, fencing, grazing management,
and weed control. The commenters
expressed concern that the designation
of critical habitat could lead to a
reduction in grazing or agricultural
output, or a reduction in the number of
NRCS projects undertaken. These
impacts could, in turn, affect local
ranching communities and farm income.
Our Response: The Service does not
anticipate requesting additional
modifications for livestock grazing or
agricultural operations, or cost-share
projects undertaken with agencies such
as NRCS, as a result of the designation
of critical habitat for the western
yellow-billed cuckoo. Section 3 of the
economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation. These baseline protections
result from the listing of the western
yellow-billed cuckoo under the Act and
the presence of the species in all
proposed critical habitat units, as well
as overlap with habitat of other, similar
listed species and designated critical
habitat. As a result of these protections,
the economic analysis concludes that
incremental impacts associated with
section 7 consultations for the western
yellow-billed cuckoo are likely limited
to additional administrative effort.
However, the Service recognizes the
potential for landowners’ perceptions of
the Act to influence land use decisions,
including decisions to participate in
Federal programs such as those
managed by NRCS. Several factors can
influence the magnitude of perceptionrelated effects, including the
community’s experience with the Act
and understanding of the degree to
which future section 7 consultations
could delay or affect land use activities.
Information is not available to predict
the impact of the designation of critical
habitat on landowners’ decisions to
pursue cost-share projects with NRCS in
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the future. However, incremental effects
due to the designation of critical habitat
for the western yellow-billed cuckoo are
likely to be reduced due to the species
being listed.
Comment 132: Multiple commenters
expressed concern that the designation
of critical habitat for the western
yellow-billed cuckoo could affect
agricultural operations through
restrictions on the use of irrigation
facilities or pesticides, particularly
those registered under FIFRA.
Our Response: The Service does not
anticipate requesting additional
modifications for agricultural
operations, including irrigation or
pesticide use, as a result of the
designation of critical habitat for the
western yellow-billed cuckoo. Section 3
of the economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation. These baseline protections
result from the listing of the western
yellow-billed cuckoo under the Act and
the presence of the species in all
proposed critical habitat units, as well
as overlap with habitat of other, similar
listed species and designated critical
habitat. As a result of these protections,
the economic analysis concludes that
incremental impacts associated with
section 7 consultations for the western
yellow-billed cuckoo are likely limited
to additional administrative effort.
Comment 133: Multiple commenters
expressed concern that the designation
of critical habitat could negatively affect
mining activities, including gravel pit
operations and copper mining in
Arizona.
Our Response: Because the western
yellow-billed cuckoo is listed as
threatened and all the units are
occupied during the breeding season
and habitat would need to be protected
during the nonbreeding season, the
majority of actions necessary to
conserve the species would be required
based on the listing of the western
yellow-billed cuckoo. As a result of the
species being listed, the economic
analysis concludes that incremental
impacts of critical habitat associated
with section 7 consultations for mining
operations for the western yellow-billed
cuckoo are likely limited to additional
administrative effort of determining if
adverse modification may occur.
Because the commenters were making
general statements and not specific to
individual mining projects or actions,
we are unable to determine what
measures mining interests may need to
undertake to avoid adverse modification
if necessary.
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Comment 134: Multiple commenters
expressed concern about impacts to
recreational activities and facilities,
such as parks. In particular, one
commenter expressed concern that the
designation could limit access to public
lands. Other commenters expressed
concern that the designation could limit
water use, which would affect
recreation. Another commenter stated
that increased Federal oversight could
hinder efforts to properly manage and
maintain public safety at local parks.
Another commenter expressed concern
that the designation could restrict future
trail developments.
Our Response: Because the western
yellow-billed cuckoo is listed as
threatened, all the units are occupied
during the breeding season and habitat
would need to be protected during the
nonbreeding season, the majority of
actions necessary to conserve the
species would be required based on the
listing of the western yellow-billed
cuckoo. Exhibit A–1 of the economic
analysis, which displays the planned
projects assumed by the economic
analysis to require formal consultation,
includes multiple consultations for
recreational activities. Activities at
private or municipal recreational
facilities, such as town parks, will only
require section 7 consultation if those
activities have a Federal nexus, such as
Federal funding.
For activities that do have a Federal
nexus for section 7 consultation, the
Service does not anticipate conservation
measures above and beyond those
needed for conserving the listed western
yellow-billed cuckoo. Section 3 of the
economic analysis outlines the
substantial baseline protections
currently afforded the western yellowbilled cuckoo throughout the proposed
designation. These baseline protections
result from the listing of the western
yellow-billed cuckoo under the Act and
the presence of the species in all
proposed critical habitat units, as well
as overlap with habitat of other, similar
listed species and designated critical
habitat. As a result of these protections,
the economic analysis concludes that
incremental impacts associated with
section 7 consultations for the western
yellow-billed cuckoo are likely limited
to additional administrative effort.
Comment 135: Multiple commenters
expressed concern that the designation
of critical habitat could negatively affect
transportation activities and road
infrastructure. One commenter further
noted that road maintenance is
necessary to maintain access to public
and private lands; as a result, impacts
stemming from the designation of
critical habitat have the potential to
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severely limit public access to public
lands.
Our Response: Because the western
yellow-billed cuckoo is listed as
threatened, and all the units are
occupied during the breeding season
and habitat would need to be protected
during the nonbreeding season, the
majority of actions necessary to
conserve the species would be required
based on the listing of the western
yellow-billed cuckoo. For activities that
do have a Federal nexus for section 7
consultation, the Service does not
anticipate conservation measures above
and beyond those needed for conserving
the listed western yellow-billed cuckoo.
Section 3 of the economic analysis
outlines the substantial baseline
protections currently afforded the
western yellow-billed cuckoo
throughout the proposed designation.
These baseline protections result from
the listing of the western yellow-billed
cuckoo under the Act and the presence
of the species in all proposed critical
habitat units, as well as overlap with
habitat of other, similar listed species
and designated critical habitat. As a
result of these protections, the economic
analysis concludes that incremental
impacts associated with section 7
consultations for the western yellowbilled cuckoo are likely limited to
additional administrative effort.
Comment 136: Multiple commenters
expressed concern about economic
impacts to operations on military
installations. In particular, one
commenter expressed concern that the
designation could result in the closure
or restriction of operations on two
military installations near Yuma,
Arizona. Multiple commenters
expressed concern about impacts to Fort
Huachuca in Cochise County, Arizona,
noting that Fort Huachuca has an
approved integrated natural resources
management plan (INRMP) that
provides conservation benefit to the
western yellow-billed cuckoo. Another
commenter expressed particular
concern that the designation could
affect operations on Fort Huachuca’s
Buffalo Soldier Electronic Testing
Range.
Our Response: No military lands or
training areas were included in the
revised proposed rule or are included in
this final designation. In the timeframe
between the proposed rule and this final
designation, we had discussions with
the military installations at Yuma
Proving Grounds and Fort Huachuca
regarding the designation of critical
habitat. Both military installations
requested exclusion from the
designation based on national security
reasons. We reviewed the request of
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Yuma Proving Grounds and found that
exclusion was not necessary for the area
requested by the Yuma Proving Grounds
because the actions described by the
installation (overflight of critical habitat
areas) would not physically impact
habitat for the western yellow-billed
cuckoo. Although the actions may
require section 7 consultation to
consider the effects to western yellowbilled cuckoos, they would not require
consideration of adverse effects to
critical habitat as overflights would
have no habitat-based effects. In
addition, this area has been excluded
based on the LCR MSCP (see
Exclusions, Private or Other NonFederal Conservation Plans Related to
Permits Under Section 10 of the Act).
Fort Huachuca also requested
exclusion of critical habitat on areas
outside the installation’s jurisdiction.
The Fort suggested that the base’s
groundwater may be impacted and
result in reduced operational capacity in
the future. The Fort is aware of our
position that groundwater impacts will
not occur as a result of the designation
of critical habitat and the designation
will not impact the Army’s military
operations. We reviewed their request
and determined that the installation did
not provide support for such an
exclusion (see Exclusions, Exclusions
Based on Impacts on National Security
and Homeland Security).
Comment 137: One commenter
expressed concern that the economic
analysis does not include costs to
reinitiate consultations for several USFS
projects and activities in proposed Unit
64 (CA–2) at Lake Isabella, California.
These consultations include travel
management in the Sequoia National
Forest, recreation management at Lake
Isabella, and the Hafenfeld Livestock
Grazing Permit. In addition, the
commenter noted that a new
consultation would likely be required
for any revisions to the Sequoia
National Forest Land Management Plan.
A public comment period for the
Revised Draft Land Management Plan
for the Sequoia National Forest (USFS
2019, entire) closed in September 2019.
Our Response: The Service
appreciates the new information
provided by the commenter. As
described in our revised proposed rule,
we did not identify areas associated
with operations and management of
Lake Isabella as critical habitat. In
addition, we excluded two additional
areas that provide conservation for the
western yellow-billed cuckoo (see
Exclusions, Private or Other NonFederal Conservation Plans or
Agreements and Partnerships, in
General). Because these areas are not
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designated as critical habitat, there are
no economic costs of re-initiation for
critical habitat. For the remaining areas,
section 3 of the economic analysis
forecasts future section 7 consultation
activity associated with the proposed
designation based on the historical
consultation activity resulting from the
listing of the western yellow-billed
cuckoo in 2014. Exhibit A–2 presents
the resulting expected annual
consultation rates by unit. Importantly,
the analysis concludes that the
incremental costs resulting from the
designation of critical habitat are likely
to be limited to administrative costs of
addressing critical habitat in
consultation, and are unlikely to exceed
the threshold for an economically
significant rulemaking. To our
knowledge, the USFS has yet to
complete its land management plan.
Comment 138: Multiple commenters
expressed concern that the designation
of critical habitat could negatively affect
habitat restoration projects, including
management programs designed to
restore riparian corridors that have been
overtaken by tamarisk. One commenter
cites as an example an ongoing project
delayed by the presence of critical
habitat for another listed species in the
Upper San Pedro River watershed.
Our Response: Because the western
yellow-billed cuckoo is listed as
threatened, all the units are occupied
during the breeding season, and habitat
would need to be protected during the
nonbreeding season, the majority of
actions necessary to conserve the
species would be required based on the
listing of the western yellow-billed
cuckoo. For activities that do have a
Federal nexus for section 7 consultation,
the Service does not anticipate
conservation measures above and
beyond those needed for conserving the
listed western yellow-billed cuckoo.
Section 3 of the economic analysis
outlines the substantial baseline
protections currently afforded the
western yellow-billed cuckoo
throughout the proposed designation.
These baseline protections result from
the listing of the western yellow-billed
cuckoo under the Act and the presence
of the species in all proposed critical
habitat units, as well as overlap with
habitat of other, similar listed species
and designated critical habitat. As a
result of these protections, the economic
analysis concludes that incremental
impacts associated with section 7
consultations for the western yellowbilled cuckoo are likely limited to
additional administrative effort.
In addition, because all proposed
critical habitat units for the western
yellow-billed cuckoo are considered
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occupied by the species, all projects
with a Federal nexus will be required to
consult with the Service under section
7 of the Act regardless of whether
critical habitat is designated. As a result,
the designation of critical habitat for the
western yellow-billed cuckoo is
unlikely to result in incremental delays
to projects.
Comment 139: Several commenters
expressed concern that baseline
protections for the western yellowbilled cuckoo, including several existing
HCPs and the presence of southwestern
willow flycatcher critical habitat, do not
provide sufficient protection to the
western yellow-billed cuckoo and its
habitat. In particular, one commenter
disagreed with the assumption used in
the economic analysis that impacts have
already occurred due to the listing of the
western yellow-billed cuckoo or the
presence of other listed species. The
commenter stated that, if this
assumption were true, the designation
of critical habitat for the western
yellow-billed cuckoo would not be
warranted. In addition, one commenter
stated that environmental reviews for
livestock grazing on Federal allotments
have been reduced since the proposed
rule was published, weakening baseline
protection.
Our Response: Guidelines issued by
OMB for the economic analysis of
regulations direct Federal agencies to
measure the costs and benefits of a
regulatory action against a baseline (i.e.,
costs and benefits that are
‘‘incremental’’ to the baseline). OMB
defines the baseline as the ‘‘best
assessment of the way the world would
look absent the proposed action.’’ In the
case of critical habitat designation for
the western yellow-billed cuckoo, the
baseline includes the listing of the
species, as well as protections already
afforded its habitat as a result of the
presence of other listed species, such as
the southwestern willow flycatcher and
the least Bell’s vireo. Because all
proposed critical habitat units for the
western yellow-billed cuckoo are
considered occupied by the species, all
projects with a Federal nexus will be
subject to section 7 requirements
regardless of whether critical habitat is
designated. In addition, the Service
anticipates that, except in cases that
cannot be predicted at this time, project
modifications recommended to avoid
adverse modification of western yellowbilled cuckoo habitat will likely be the
same as those needed to avoid jeopardy
to the species. As a result, the economic
analysis finds that the section 7-related
costs of designating critical habitat for
the western yellow-billed cuckoo are
likely to be limited to additional
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administrative effort to consider adverse
modification in consultation.
Comment 140: Multiple commenters
noted that many existing HCPs offer
baseline protection to the species. One
commenter expressed concern that the
designation of critical habitat could
impose substantial economic burden on
landowners participating in such HCPs.
In addition, the commenter expressed
concern that the designation of critical
habitat could create a disincentive for
landowners to develop new HCPs and
thus negatively affect regional
conservation.
Our Response: HCPs, particularly
those developed at a regional scale, are
valuable tools for conservation. The
designation of critical habitat for the
western yellow-billed cuckoo may, in
some cases, require re-initiation of past
consultations, including consultations
on HCPs. However, as described in
section 3 of the economic analysis,
incremental costs associated with
section 7 consultations will likely be
limited to additional administrative
costs following the designation of
critical habitat. Incremental impacts to
HCP participants beyond third-party
administrative costs of consultation are
not expected, and we have excluded
certain HCP areas from the final
designation (see Exclusions, Private or
Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of
the Act).
Comment 141: Multiple commenters
expressed concern about potential
impacts to utility operations. One
commenter expressed concern that the
designation of critical habitat within
transmission and distribution corridors
could hinder maintenance and
operation activities. Such activities are
required by the Federal Energy
Regulatory Commission (FERC) to
maintain equipment integrity, mitigate
potential public safety hazards, and
comply with vegetation management
standards. Multiple commenters noted
that non-compliance can result in
penalties up to $1,000,000 per incident
per day. Another commenter noted that
impacts to grid reliability represent a
significant public health and safety, as
well as economic, concern.
Our Response: Because the western
yellow-billed cuckoo is listed as
threatened, all the units are occupied
during the breeding season and habitat
would need to be protected during the
nonbreeding season, the majority of
actions necessary to conserve the
species would be required based on the
listing of the western yellow-billed
cuckoo. For activities that do have a
Federal nexus for section 7 consultation,
the Service does not anticipate
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conservation measures above and
beyond those needed for conserving the
listed western yellow-billed cuckoo.
Section 3 of the economic analysis
outlines the substantial baseline
protections currently afforded the
western yellow-billed cuckoo
throughout the proposed designation.
These baseline protections result from
the listing of the western yellow-billed
cuckoo under the Act and the presence
of the species in all proposed critical
habitat units, as well as overlap with
habitat of other, similar listed species
and designated critical habitat. As a
result of these protections, the economic
analysis concludes that incremental
impacts associated with section 7
consultations for the western yellowbilled cuckoo are likely limited to
additional administrative effort.
Comment 142: Several commenters
were in favor of conservation efforts to
protect the western yellow-billed
cuckoo, yet they expressed concern that
critical habitat designation would
burden State regulatory agencies and
restrict ranching, farming, or other
activities on private lands. Other
commenters were concerned about the
level of oversight the Service has in
designating critical habitat on privately
owned land.
Our Response: We are required to
designate critical habitat for a federally
listed species if it is determined to be
both prudent and determinable, as is the
case for the western yellow-billed
cuckoo. We further note that we are
currently under court order to finalize
critical habitat for the western yellowbilled cuckoo.
In regard to State and private
landowner burden, critical habitat
designations do not constitute or create
a regulatory burden by themselves, in
terms of regulations on private
landowners carrying out private
activities, but in certain areas they
might trigger additional State regulatory
reviews and other requirements. Our
economic analysis did not find that
there would be significant impacts for
third party entities (e.g., States private
actions). When a third party action
requires Federal approval, permit, or is
federally funded, the critical habitat
designation might impose a Federal
regulatory burden for private
landowners, but consultation effort
concerning the critical habitat or species
would be the responsibility of the
Federal entity involved, not the private
landowner; absent Federal approval,
permits, or funding, the designation
should not affect farming, ranching, or
other activities on private lands.
Comment 143: Multiple commenters
stated they have determined that the
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economic analysis is flawed in its
approach and needs to be re-done in
order to consider the unanalyzed
economic impacts to the city of Sierra
Vista, AZ, due to COVID–19. Other
commenters stated the Service failed to
analyze the economic impact on private
landowners and the State of Arizona.
Other commenters, including private
landowners, stated that the Service
should consider the economic benefits
of birdwatching and recreational
activities in riparian areas, and
supported the enhanced property value
of areas with more conservation focus.
Other commenters expressed concerns
that the economic analysis of the
proposed critical habitat designation has
not yet been released for public review
and comment, which is required before
proposed critical habitat can be
finalized.
Our Response: For both the 2014
proposed critical habitat and the 2020
revised proposed critical habitat, we
completed economic analyses to
examine the incremental costs
associated with the designation of
critical habitat. The economic analyses
did not identify significant impacts, and
the two local government entities did
not provide economic information
regarding any of the activities identified.
These analyses were available to the
public as part of the docket for each
publication in the Federal Register.
Critical habitat does not restrict private
landowner access to their property and
would only need to be considered if
Federal agency funding or permitting for
an activity is needed. Because the areas
are considered occupied, the majority of
costs are not associated with the
designation, but with listing of the
species as threatened. If Federal funding
is involved, the agency providing the
funding is the party responsible for
meeting obligations of consulting on
projects on private lands. We have
considered and applied the best
available scientific and commercial
information in determining the
economic impacts associated with
designating critical habitat. Section 5 of
the economic analysis explains that the
primary intended benefit of critical
habitat designation for the western
yellow-billed cuckoo is to support the
species’ long-term conservation. Critical
habitat designation may also generate
ancillary benefits by protecting the
primary constituent elements on which
the species depends. As a result,
management actions undertaken to
conserve the species or its habitat may
have coincident, positive social welfare
implications, such as increased
recreational opportunities in a region or
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improved property values on nearby
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Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Our regulations at 50 CFR 424.02
define the geographical area occupied
by the species as an area that may
generally be delineated around species’
occurrences, as determined by the
Secretary (i.e., range). Such areas may
include those areas used throughout all
or part of the species’ life cycle, even if
not used on a regular basis (e.g.,
migratory corridors, seasonal habitats,
and habitats used periodically, but not
solely by vagrant individuals).
Conservation, as defined under
section 3 of the Act, means the use of
all methods and procedures that are
necessary to bring an endangered or
threatened species to the point at which
the measures provided pursuant to the
Act are no longer necessary. Such
methods and procedures include, but
are not limited to, all activities
associated with scientific resources
management such as research, census,
law enforcement, habitat acquisition
and maintenance, propagation, live
trapping, and transplantation, and, in
the extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
ensure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not likely to result in the
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Such designation
does not allow the government or public
to access private lands. Such
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designation does not require
implementation of restoration, recovery,
or enhancement measures by nonFederal landowners. Where a landowner
requests Federal agency funding or
authorization for an action that may
affect a listed species or critical habitat,
the Federal agency would be required to
consult with the Service under section
7(a)(2) of the Act. However, even if the
Service were to conclude that the
proposed activity would result in
destruction or adverse modification of
the critical habitat, the Federal action
agency and the landowner are not
required to abandon the proposed
activity, or to restore or recover the
species; instead, they must implement
‘‘reasonable and prudent alternatives’’
to avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographical area occupied
by the species at the time it was listed
are included in a critical habitat
designation if they contain physical or
biological features (1) which are
essential to the conservation of the
species and (2) which may require
special management considerations or
protection. For these areas, critical
habitat designations identify, to the
extent known using the best scientific
and commercial data available, those
physical or biological features that are
essential to the conservation of the
species (such as space, food, cover, and
protected habitat). In identifying those
physical or biological features that occur
in specific occupied areas, we focus on
the specific features that are essential to
support the life-history needs of the
species, including, but not limited to,
water characteristics, soil type,
geological features, prey, vegetation,
symbiotic species, or other features. A
feature may be a single habitat
characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in areas
outside the geographical area occupied
by the species at the time it is listed,
upon a determination that such areas
are essential for the conservation of the
species. When designating critical
habitat, the Secretary will first evaluate
areas occupied by the species. The
Secretary will consider unoccupied
areas to be essential only where a
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critical habitat designation limited to
geographical areas occupied by the
species would be inadequate to ensure
the conservation of the species. In
addition, for an unoccupied area to be
considered essential, the Secretary must
determine that there is a reasonable
certainty both that the area will
contribute to the conservation of the
species and that the area contains one
or more of those physical or biological
features essential to the conservation of
the species (50 CFR 424.12(b)(2)).
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific data available.
Further, our Policy on Information
Standards Under the Endangered
Species Act (published in the Federal
Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515
of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information from the SSA
report and information developed
during the listing process for the
species. Additional information sources
may include any generalized
conservation strategy, criteria, or outline
that may have been developed for the
species; the recovery plan for the
species; articles in peer-reviewed
journals; conservation plans developed
by States and counties; scientific status
surveys and studies; biological
assessments; other unpublished
materials; or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. Areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, will
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continue to be subject to: (1)
Conservation actions implemented
under section 7(a)(1) of the Act; (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species; and (3) the
prohibitions found in section 9 of the
Act. Federally funded or permitted
projects affecting listed species outside
their designated critical habitat areas
may still result in jeopardy findings in
some cases. These protections and
conservation tools will continue to
contribute to recovery of this species.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
HCPs, or other species conservation
planning efforts if new information
available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12(b), in determining which areas
we will designate as critical habitat from
within the geographical area occupied
by the species at the time of listing, we
consider the physical or biological
features that are essential to the
conservation of the species and that may
require special management
considerations or protection. The
regulations at 50 CFR 424.02 define
‘‘physical or biological features essential
to the conservation of the species’’ as
the features that occur in specific areas
and that are essential to support the lifehistory needs of the species, including,
but not limited to, water characteristics,
soil type, geological features, sites, prey,
vegetation, symbiotic species, or other
features. A feature may be a single
habitat characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity. For
example, physical features essential to
the conservation of the species might
include gravel of a particular size
required for spawning, alkaline soil for
seed germination, protective cover for
migration, or susceptibility to flooding
or fire that maintains necessary earlysuccessional habitat characteristics.
Biological features might include prey
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species, forage grasses, specific kinds or
ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of
nonnative species consistent with
conservation needs of the listed species.
The features may also be combinations
of habitat characteristics and may
encompass the relationship between
characteristics or the necessary amount
of a characteristic essential to support
the life history of the species.
In considering whether features are
essential to the conservation of the
species, the Service may consider an
appropriate quality, quantity, and
spatial and temporal arrangement of
habitat characteristics in the context of
the life-history needs, condition, and
status of the species. These
characteristics include, but are not
limited to, space for individual and
population growth and for normal
behavior; food, water, air, light,
minerals, or other nutritional or
physiological requirements; cover or
shelter; sites for breeding, reproduction,
or rearing (or development) of offspring;
and habitats that are protected from
disturbance.
We derive the specific physical or
biological features required for the
western yellow-billed cuckoo from
studies of this species’ habitat, ecology,
and life history as described below.
Additional information can be found in
the proposed and final listing rules
published in the Federal Register on
October 3, 2013 (78 FR 61621), and
October 3, 2014 (79 FR 59992),
respectively. The physical or biological
features identified here focus primarily
on breeding habitat and secondarily on
foraging habitat because most of the
habitat relationship research data derive
from studies of these activities. Much
less is known about migration, stopover, or dispersal habitat within the
breeding range; however, for these
purposes, western yellow-billed
cuckoos use a variety of habitats that
may or may not be used for breeding. As
a result, we do not think that habitat for
these purposes is limiting, and we have
not specifically identified areas for these
purposes in our designation. As stated
above, the species’ use of an area for
breeding purposes depends on food
availability and habitat conditions. If
those conditions are not adequate (i.e.,
prey not present, environmental
conditions not favorable), the species
may still use the area for the other
purposes identified above. Although the
wintering and nesting habitat for the
western yellow-billed cuckoo that
occurs outside of the United States was
not considered for critical habitat
designation, some information on
breeding, migration, and wintering
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habitat outside the United States is
provided. We have determined that the
following physical or biological features
are essential to the conservation of the
western yellow-billed cuckoo.
Space for Individual and Population
Growth and for Normal Behavior
General breeding (nesting) habitat
conditions. The western yellow-billed
cuckoo occurs and breeds during the
breeding season (generally June through
September—May breeding does occur
but is less common) in a subset of its
historical range in the western United
States. The western yellow-billed
cuckoo primarily uses nesting sites in
riparian habitat where conditions are
typically cooler and more humid than in
the surrounding environment (Gaines
and Laymon 1984, p. 75; Laymon 1998,
pp. 11–12; Corman and Magill 2000, p.
16). In the Southwest, the western
yellow-billed cuckoo also nests in more
arid-adapted habitat in drainages where
conditions are also cooler and more
humid than the surrounding
environment (Griffin 2015, entire;
MacFarland and Horst 2015, entire;
MacFarland and Horst 2017, entire;
Corson 2018, entire; Drost et al. 2020,
entire). Riparian habitat characteristics,
such as dominant tree species, size and
shape of habitat patches, tree canopy
structure, tree age, vegetation height,
and vegetation density, are important
parameters of western yellow-billed
cuckoo breeding habitat.
Older studies were geographically
limited in their scope but nevertheless
established a suite of habitat
characteristics that became the
archetype for western yellow-billed
cuckoo breeding habitat. However,
habitat conditions across the DPS range
vary considerably, and more recent
investigations that included other areas
within the western yellow-billed
cuckoo’s breeding range found that large
areas of riparian woodland vegetation
are not the only areas used by the
species for nesting. We describe both
the rangewide and southwestern
breeding habitat below with particular
emphasis on describing the
southwestern habitat, because it is less
well known as providing habitat for the
western yellow-billed cuckoo.
Rangewide breeding habitat.
Rangewide breeding habitat across the
DPS exists primarily in riparian areas
along low-gradient streams, with
patches of cottonwood (Populus spp.)
and willow (Salix spp.) riparian
vegetation with an overstory and
understory component. Patches of trees
interspersed with openings often
aggregate into large expanses of habitat.
The vegetation is often characterized as
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riparian woodlands. More specifically,
rangewide breeding habitat is
characterized as having broad
floodplains and open riverine valleys
that provide wide floodplain conditions.
The general habitat characteristics are
areas that are often greater than 325 feet
(ft) (100 meter (m)) wide but may be
narrow in parts of the floodplain,
contain low-gradient rivers and streams
(surface slope usually less than 3
percent), are part of floodplains created
where rivers and streams enter upstream
portions of reservoirs or other water
impoundments, or are in areas
associated with irrigated upland terraces
adjacent to water courses or riparian
floodplains. The habitat is usually
dominated by willow or cottonwood,
but sometimes by other riparian species.
The habitat has above-average canopy
closure (greater than 70 percent), and a
cooler, more humid environment than
the surrounding riparian and upland
habitats. The plant species most often
associated with rangewide breeding
habitat are identified above (see General
Breeding (nesting) Habitat Conditions),
and each may be dominant depending
on location. These areas contain the
moist conditions that support riparian
plant communities made up of overstory
and understory components that
provide breeding sites, shelter, cover,
and food resources for the western
yellow-billed cuckoo. However, all
foraging needs may not be provided
within areas of critical habitat. Western
yellow-billed cuckoo use rangewide
breeding habitat as described above
throughout the DPS, including where it
occurs in the Southwest and the states
of Sonora and Sinaloa, Mexico.
In addition to cottonwood and
willow, riparian vegetation may include
tree species other than cottonwood and
willow, including but not limited to
boxelder (Acer negundo); ash (Fraxinus
spp.); walnut (Juglans spp.); and
sycamore (Platanus spp.) (Gaines 1974,
pp. 7–9; Gaines and Laymon 1984, pp.
59–66; Groschupf 1987 pp. 5, 8–11, 16–
18; Laymon and Halterman 1989, pp.
274–275; Corman and Magill 2000, pp.
5, 10, 11, 15, 16; Dettling and Howell
2011a, pp. 27–28). In California, the
species is typically found in riparian
woodland areas along low-gradient
streams with patches of cottonwood
(Populus spp.) and willow (Salix spp.)
riparian vegetation with an overstory
and understory component of other tree
species, including but not limited to
boxelder (Acer negundo); Oregon ash
(Fraxinus latifolia); California black
walnut (Juglans californica); California
sycamore (Platanus racemosa); Fremont
cottonwood (Populus fremontii); and
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valley oak (Quercus lobata) (Gaines
1974, pp. 7–9; Gaines and Laymon 1984,
pp. 59–66; Laymon and Halterman
1989, pp. 274–275; Dettling and Howell
2011a, pp. 27–28).
Western yellow-billed cuckoos have
also been found nesting in orchards
adjacent to riparian habitat during the
breeding season (Laymon 1980, pp. 6–
8; Laymon 1998, p. 5). Five pairs of
western yellow-billed cuckoos were
found nesting along the Sacramento
River in a poorly groomed English
walnut orchard that provided numerous
densely foliaged horizontal branches on
which western yellow-billed cuckoos
built their nests (Laymon 1980, pp. 6–
8). These western yellow-billed cuckoos
that nested in the orchard did not forage
there, but flew across the river to forage
in riparian habitat. Kingsley (1985, pp.
245–249; 1989, p. 142) described
western yellow-billed cuckoos as being
abundant in the pecan groves in Green
Valley and Sahuarita, Arizona, with an
estimated density of one nesting pair
per 10 ac (4 ha). We consider these
agricultural nesting sites to be the
exception rather than the preferred
nesting habitat for the species due to the
paucity of reports identifying such
nesting. In mapping the boundaries of
the critical habitat, we avoided
identifying agricultural lands within the
designation. Any agricultural lands
inadvertently within the boundary of
the designation would not be
considered critical habitat because those
areas do not contain the physical or
biological features.
Southwestern breeding habitat. In
parts of the Southwestern United States
and the states of Sonora and Sinaloa,
Mexico, western yellow-billed cuckoo
breeding habitat is more variable than in
the rest of its range. Southwestern
breeding habitat, found primarily in
Arizona and New Mexico, occurs within
or along perennial, intermittent, and
ephemeral drainages in montane
canyons, foothills, bajadas, desert
floodplains, and arroyos. Breeding
habitat may include woody side
drainages, terraces, and hillsides
immediately adjacent to the main
drainage bottom below 6,000 ft
elevation (1,829 m). In areas where
water is especially limited, but is
nonetheless productive in terms of food
and cover for western yellow-billed
cuckoos, breeding habitat often consists
of narrow, patchy, and/or sparsely
vegetated drainages surrounded by aridadapted vegetation. Due to more arid
conditions, southwestern breeding
habitat contains a greater proportion of
xeroriparian and nonriparian tree
species than elsewhere in the DPS.
Riparian and xeroriparian trees in these
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ecosystems may even be more sparsely
distributed and less prevalent than
nonriparian trees.
Southwestern breeding habitat may be
less than 325 ft (100 m) wide due to
narrow canyons or limited water
availability that do not allow for
development of wide reaches of habitat.
Southwestern breeding habitat is often
but not always 200 ac (81 ha) or more
in size, and may consist of a series of
smaller tree and large shrub patches
separated by openings. Occurring in
both low- and high-gradient drainages,
slope does not appear to be a factor in
whether or not western yellow-billed
cuckoos select these areas for nesting.
Canopy closure is variable, and where
trees are sparsely scattered, it may be
dense only at the nest tree or small
grove including the nest tree. The North
American Monsoon brings high
humidity and rainfall to some of these
habitats especially in the ephemeral
drainages in southeastern Arizona
where winters are mild and warm, wet
summers are associated with the
monsoon and other tropical weather
events (Wallace et al. 2013, entire;
Erfani and Mitchell 2014, pp. 13096–
13097). The more arid ephemeral
drainages may not flow during summer
monsoonal storms, but provide moisture
for plant growth and insect production.
Riparian and xeroriparian drainages
in southwestern breeding habitat bisect
other habitats and often contain a mix
of habitats including but not limited to
Madrean evergreen woodland (Madrean
encinal and Madrean pinyon-juniper),
desert grassland (including semi-desert
grassland), or desert scrub (including
mesquite (Prosopis, spp.) upland and
semi-desert scrub) (NatureServe 2016,
entire; Drost et al. 2020, entire). To
simplify, we refer to these habitats as
riparian, xeroriparian (including
mesquite bosque), Madrean evergreen
woodland, desert grassland, and desert
scrub. More than one vegetation type
within and immediately adjacent to the
drainage may contribute toward nesting
habitat. For example, mesquite, with
deeper roots that can reach the water
table, often flanks the upland perimeter
of more water-dependent cottonwoodwillow riparian habitat. In addition to
the riparian trees found across the
species’ range, the vegetation making up
the breeding habitat of the western
yellow-billed cuckoo in some areas,
especially in the more arid Southwest,
includes some other native and
nonnative xeroriparian and non-riparian
trees and large shrubs, such as, but not
limited to: Mesquite, hackberry (Celtis
reticulata and C. ehrenbergiana),
soapberry (Sapindus saponaria), oak
(Quercus spp.), acacia (Acacia spp.,
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Senegalia greggi), mimosa (Mimosa
spp.), greythorn (Ziziphus obtusifolia),
desert willow (Chilopsis linearis),
juniper (Juniperus spp.), pine (Pinus
spp.), alder (Alnus rhombifolia and A.
oblongifolia), wolfberry (Lycium spp.),
Russian olive (Elaeagnus angustifolia),
and tamarisk (Tamarix spp.) (Groschupf
1987 pp. 5, 8–11, 16–18; Corman and
Magill 2000, pp. 10, 15, 16; Corson
2018, pp. 5, 6–20; Sferra et al. 2019, p.
3). Of these species, the nonriparian
trees and large shrubs include oak,
juniper, acacia, greythorn, mimosa, and
mesquite (upland) (NatureServe 2013,
pp. 11–18, 42–113, 132–140). Drainage
bottoms in these habitats consist of
riparian, xeroriparian and nonriparian
trees and may be dominated by
cottonwood, willow, mesquite,
hackberry, ash, sycamore, walnut, or
oak (Sogge et al. 2008, pp. 148–149;
Johnson et al. 2012, pp. 20–21;
WestLand Resources, Inc. 2019, entire;
Villarreal et al. 2014, p. 58; Griffin 2015,
pp. 17–25; MacFarland and Horst 2015,
pp. iiii, 2, 5–7; Corson 2018, entire;
Sferra et al. 2019, p.3; Drost et al. 2020,
entire).
Occupied habitat within a single
drainage may include both rangewide
breeding habitat and southwestern
breeding habitat, transitioning from
large stands of gallery riparian forest to
mesquite woodland, or narrow or
patchy stands of riparian or xeroriparian
habitat. These perennial and
intermittent drainages include but are
not limited to parts of the Gila River,
upper Verde River, Blue River, Eagle
Creek, Tonto Creek, San Francisco
River, Aravaipa Creek, San Pedro River,
lower Cienega Creek, Mimbres River,
and the Rio Grande (Corman and Magill
2000, pp. 37–48; Sogge et al. 2008, pp.
148–149; Johnson et al. 2012, pp. 20–21;
Arizona Game and Fish Department
(AGFD) 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data)).
In more intermittent and ephemeral
drainages that bisect Madrean evergreen
woodlands, desert scrub, and desert
grasslands in montane canyons,
foothills, bajadas, and desert floodplains
of southeastern Arizona, riparian and
xeroriparian trees and large shrubs may
be present, but are often sparsely
distributed or in a narrow band along
the drainage bottom. The hillsides
immediately adjacent to the tree-lined
drainages range from dense woodlands
to sparsely treed savannahs with a
variety of grasses, contributing toward
foraging and breeding habitat for the
western yellow-billed cuckoo. Tree and
large shrub species such as mesquite,
hackberry, acacia, mimosa, and
greythorn are present in desert scrub
and desert grassland habitats
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(NatureServe 2013, pp. 88, 134).
Madrean evergreen woodland habitat
contains oak, mesquite, juniper, acacia,
and hackberry (Brown 1994, pp. 59–62)
in southeastern Arizona and
southwestern New Mexico’s mountain
ranges, and resembles habitat found in
the Sierra Madre Occidental of Mexico.
In southeastern Arizona, occupied
southwestern breeding habitat that
contains a more arid mix of species is
found in drainages in the Santa Catalina
Mountains, Rincon Mountains, Santa
Rita Mountains, Patagonia Mountains,
Huachuca Mountains, Pajarito/Atascosa
Mountains, Whetstone Mountains,
Dragoon Mountains, and Buenos Aires
National Wildlife Refuge, among others
(Corman and Magill 2000, pp. 37–48;
American Birding Association 2014,
entire; Griffin 2015, pp. 17–25;
MacFarland and Horst 2015, pp. i–iii, 2,
5–7, 9–12; Tucson Audubon Society
2015, p. 44; Arizona Game and Fish
Department 2018, entire; Dillon et al.
2018, pp. 31–33; White et al. 2018, pp.
26–27; Rorabaugh 2019, in litt, entire;
Sferra et al. 2019, pp. 3–6, 9–11; Corson
2018, entire; Westland Resources, Inc.
2019, entire; Cornell Lab of Ornithology
2020 (eBird data; Drost et al. 2020,
entire). In Sonora and Sinaloa, Mexico,
western yellow-billed cuckoos also
breed in similar riparian habitat
bisecting mesquite-dominated
woodlands, and semi-desert and desert
scrub and grassland habitats (Russell
and Monson 1998, p. 131).
Remnant mesquite bosques,
historically extensive throughout the
Southwest along major rivers, still
occupy some wide floodplains of the
lower Colorado River, Gila, Salt, San
Pedro, Santa Cruz, and Rio Grande
Rivers in Arizona and New Mexico. In
Sonora, Mexico, mesquite bosques
where western yellow-billed cuckoos
have nested have also been greatly
reduced (Russell and Monson 1988, p.
131). For example, Arizona’s upper San
Pedro River contains extensive reaches
of mesquite bosque breeding habitat
adjacent to the cottonwood and willow
dominated breeding habitat in a broad
floodplain.
Arid conditions and water
management in the Southwest often
influence stream flows into and
downstream of reservoirs, limiting
riparian vegetation regeneration,
growth, and survival. In Arizona and
New Mexico, narrow or patchy riparian
breeding habitat can be found adjacent
to heavily managed floodplains (such as
areas within Caballo Reservoir and the
Lower Rio Grande for example (White et
al. 2018, pp. 26–27)). Hydrologically
perennial systems become intermittent
or ephemeral due to reservoir
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20837
management or water delivery
requirements. For example, water
abundance at Caballo Reservoir and
downstream on the Lower Rio Grande
varies from year-to-year, and timing of
release may not occur prior to or
throughout the western yellow-billed
cuckoo breeding season. As a result,
riparian (including xeroriparian) habitat
may persist only as narrow bands or
scattered patches along the bankline or
as small in-channel islands, or sections
of undisturbed native willows within
the reservoir. Habitat within these areas
may be as small as approximately 30 ac
(12 ha) and is typically composed of
either willow, tamarisk, or a mix of the
two (White et al. 2018, pp. 26–27).
Adjacent habitat may include mowed
nonnative vegetation typically less than
1 ft (0.3 m) tall or higher terraces within
the floodplain with mesquite or other
drought-tolerant vegetation.
In a study on the Coronado National
Forest, Arizona, Madrean evergreen
woodland drainages used by western
yellow-billed cuckoos were dominated
by oak trees, often with mesquite trees
flanking the riparian strip (MacFarland
and Horst 2015, pp. 1, 7). The drainages
often merge into the surrounding
vegetation of juniper. In the wettest
reaches of the drainages, the oaks are
interspersed with Arizona sycamore,
hackberry, willows, occasionally
cottonwoods, and a few other
infrequently occurring species such as
Arizona ash and Arizona walnut
(MacFarland and Horst 2015, p. 1). Total
canopy cover in occupied habitat was
about 52 percent, with oaks as the
predominant overstory species recorded
(overall average 35 percent), followed by
mesquite (20 percent), and juniper (16
percent). The most frequent riparian
overstory species were sycamore (3
percent) followed by hackberry (5
percent) and willow (2 percent). The
average height of the most prevalent
overstory tree species at each point
recorded was 20 ft (6.1 m). Habitat
occupied during the breeding season
(which we also refer to as territories
even though western yellow-billed
cuckoos may not defend habitat (Hughes
2015, p. 3)) tended to have a higher
percentage of mesquites in the
community composition, while
unoccupied survey points had a higher
percentage of junipers (MacFarland and
Horst 2015, pp. 9–10). Western yellowbilled cuckoo detections ranged in
elevation from 3,564 to 5,480 ft (1,086
to 1,670 m) (MacFarland and Horst
2015, p. 10).
Few western yellow-billed cuckoo
detection records in southwestern New
Mexico exist between 1998 and 2014 in
Madrean evergreen woodland and
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mesquite woodlands (including other
thorn trees and shrubs) habitat similar
to southeastern Arizona (Cornell Lab of
Ornithology 2020 (eBird data)). Much of
the southwestern New Mexico habitat is
privately owned and is not visited as
frequently by birders as is southeastern
Arizona. No protocol surveys have been
conducted in these areas. Based on the
best available survey information, we
have not identified confirmed breeding
or breeding occupancy in Madrean
evergreen woodland and mesquite
woodlands in New Mexico. Therefore,
no critical habitat is designated in
similar southwestern habitat in
southwestern New Mexico.
Tamarisk. Within Southwestern
breeding habitat, tamarisk, also known
as salt cedar, is a common nonnative
shrubby tree found occurring along or
within stream courses in western
yellow-billed cuckoo riparian habitat.
Tamarisk, as a component of wildlife
habitat, is often characterized as being
poor habitat for many species of
wildlife, but it can be a valuable
substitute where the hydrology has been
altered to the extent that native
woodland habitat can no longer exist
(Hunter et al. 1988, 113–123; Service
2002, pp. K–11–K–14; Sogge et al. 2008,
pp. 148–152; Shafroth et al. 2010,
entire). The spread of tamarisk and the
loss of native riparian vegetation is
primarily a result of land and water
management actions. Tamarisk does not
invade and out-compete native
vegetation in the Southwest (Service
2002, p. H–11). Rather, human actions
have facilitated tamarisk dispersal to
new locales, and created opportunities
for its establishment by clearing
vegetation, modifying physical site
conditions, altering natural river
processes, and disrupting biotic
interactions (Service 2002, p. H–11).
Because the presence and relative
dominance of tamarisk is greatly
influenced by hydrologic regime and
depth to groundwater, native riparian
vegetation in tamarisk-dominated
systems is unlikely to reestablish unless
the hydrologic regime is restored
(Stromberg et al. 2007, pp. 381–391).
Western yellow-billed cuckoos will
sometimes build their nests and forage
in tamarisk, but there is usually a native
vegetation component within the
occupied habitat (Gaines and Laymon
1984, p. 72; Johnson et al. 2008, pp.
203–204). Surveys conducted in the late
1990s in Arizona in historically
occupied western yellow-billed cuckoo
riparian habitat found 85 percent of all
western yellow-billed cuckoo detections
in habitat dominated by cottonwood
with a strong willow and mesquite
understory, 11.5 percent within mixed
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native and tamarisk habitats, 3.5 percent
within mixed native and Russian olive
habitats, and only 5 percent within
tamarisk-dominated habitats (Johnson et
al. 2008, pp. 203–204; Johnson et al.
2010, pp. 204–205). Even in the
tamarisk-dominated habitat,
cottonwoods were still present at all but
two of these sites.
Although tamarisk monocultures
generally lack the structural diversity of
native riparian habitat, western yellowbilled cuckoos may use these areas for
foraging, dispersal, and breeding,
especially if the tamarisk-dominated
sites retain some native trees. Tamarisk
contributes cover, nesting substrate,
temperature amelioration, increased
humidity, and insect production where
native habitat regeneration and
survivability has been compromised by
altered hydrology (e.g., reduced flow or
groundwater availability) and
hydrologic processes (e.g., flooding and
sediment deposition). In parts of the
western yellow-billed cuckoo’s range,
some tamarisk-dominated sites are used
for nesting and foraging including parts
of the Bill Williams, Verde, Gila, Salt,
and Rio Grande Rivers (Groschupf 1987,
pp. 9, 15; Corman and Magill 2000, pp.
11, 14–16, Halterman 2001, pp. 11, 15;
Leenhouts et al. 2006, p. 15; Sogge et al.
2008, p. 148; Sechrist et al. 2009, p. 55;
Dockens and Ashbeck 2011a, pp. 1, B–
26; Dockens and Ashbeck 2011b, pp. 8,
D–2; Jarnevich et al. 2011, p. 170;
McNeil et al. 2013b, p. I–1; Jakle 2014,
entire; Orr et al. 2014, p. 25; SRP 2014,
entire; Service 2014b, p. 63; ArizonaSonora Desert Museum 2016, entire;
Dillon et al. 2018 pp. 31–33; White et
al. 2018 pp. 26–27; and Parametrix,
Incorporated (Inc.) and Southern Sierra
Research Station 2019, p. 5–1).
Past restoration efforts favored
nonnative tamarisk removal without
regard for its habitat suitability for the
western yellow-billed cuckoo. In areas
where tamarisk is a major component
(or part of the understory), its removal
may not be appropriate or
recommended because western yellowbilled cuckoo habitat selection may be
based on overstory/understory structure
or annual variation in environmental
factors and not on specific vegetation
types (Halterman 2001, pp. 11, 15;
Sechrist et al. 2009, p. 53). Halterman
(2001, pp. 11, 15) found western yellowbilled cuckoos nesting in monoculture
stands of tamarisk in 2001 for the first
time in the 6-year study, indicating that
use of tamarisk for nesting may change
over time. In some areas, if tamarisk is
removed, the remaining habitat may be
rendered unsuitable because it is more
exposed, hotter, and drier.
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Another issue in regard to tamarisk is
the introduction of biocontrol agents to
remove tamarisk. In 2001, the U.S.
Department of Agriculture’s Animal and
Plant Health Inspection Service (APHIS)
released various species of the
nonnative tamarisk leaf beetle
(Diorhabda sp.) in an effort to control
tamarisk invasion (APHIS 2005, p. 4–5).
Since 2001, the tamarisk leaf beetle has
expanded rapidly and its distribution
now encompasses much of the western
United States (RiversEdge West, 2019,
entire). This expansion of tamarisk
defoliation will lead to habitat
degradation and may render areas
unsuitable for occupancy by the western
yellow-billed cuckoo (Sogge et al. 2008,
p. 150). Defoliation during the breeding
season also exposes eggs and nestlings
to heat exposure and predation from
decreased cover, as was documented in
2008 in St. George, Utah, with the
exposure-caused failure of an active
southwestern willow flycatcher nest
(Paxton et al. 2011, p. 257). In defoliated
areas of the Rio Grande, canopy cover
was still within the natural range of
variation; however, the canopy cover
was composed of dead leaves as
opposed to live leaves, which changed
the microclimate (Dillon and Ahlers
2018, pp. 26–27). Ultimately, the
sampled areas with the most tamarisk
and subsequent defoliation activity
reflected the areas with the highest
temperature extremes (Dillon and
Ahlers 2018, pp. 26–27).
Some tamarisk removal and native
tree replacement projects are under way
to offset the arrival of tamarisk leaf
beetles and subsequent defoliation
(Service 2016b, pp. 4–15). If these
projects are unsuccessful in sustaining
native woodland habitat of at least the
same habitat value as habitat that was
removed, the end result will be a net
loss of habitat. Another nonnative
species identified as a biocontrol agent,
the tamarisk weevil (Coniatus sp.). has
also been found in the wild in Arizona,
California, Nevada, and Utah (Eckberg
and Foster 2011, p. 51; Eichhorst et al.
2017, entire). The impact of the tamarisk
weevil has not been well studied and
currently has not been shown to
significantly impact tamarisk-dominated
habitats used by the western yellowbilled cuckoo.
Breeding (nesting) habitat and home
range size. In rangewide western
yellow-billed cuckoo habitat, the habitat
used for breeding and nesting by the
species varies in size and shape. The
available information indicates that the
species requires large tracts of habitat
for breeding and foraging during the
nesting season (home range). The larger
the extent of habitat, the more likely it
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will provide suitable habitat for the
western yellow-billed cuckoos and be
occupied by nesting pairs (Laymon and
Halterman 1989, pp. 274–275).
Rangewide breeding habitat can be
relatively dense contiguous stands or
irregularly shaped mosaics of dense
vegetation with more sparse or open
areas.
Along the Colorado River in
California and Arizona, western yellowbilled cuckoos tend to favor larger
riparian habitat sites for nesting
(Laymon and Halterman 1989, p. 275):
Sites less than 37 ac (15 ha) are
considered unsuitable nesting habitat;
sites between 37 ac (15 ha) and 50 ac (20
ha) in size were rarely used as nest sites;
and habitat patches or aggregates of
patches from 50 to 100 ac (20 to 40 ha)
in size were considered marginal habitat
(Laymon and Halterman 1989, p. 275).
Vegetation data collected in more recent
years along the lower Colorado River at
834 plots from 2006 through 2012
indicated the median size of occupied
sites (92 ac (37 ha)) was almost three
times as large as unoccupied sites (32 ac
(13 ha)) (McNeil et al. 2013b, p. 94).
Habitat areas between 100 ac (40 ha)
and 200 ac (81 ha), although considered
suitable, are not consistently used by
the species in California. The optimal
size of habitat patches (aggregates of
trees that may be interspersed with
openings, sparse understory or canopy,
or open floodplains) for the western
yellow-billed cuckoo is generally greater
than 200 ac (81 ha) in extent and these
patches should have dense canopy
closure and high foliage volume of
willows and cottonwoods in at least a
portion of the overall habitat patch
(Laymon and Halterman 1989, pp. 274–
275) to provide adequate space for
nesting and foraging.
In rangewide riparian breeding habitat
and mixed riparian habitat in California,
Arizona, and New Mexico, the home
ranges used by the western yellowbilled cuckoo during the breeding
season varied greatly (Laymon and
Halterman 1987, pp. 31–32; Halterman
2009, p. 93; Sechrist et al. 2009, p. 55;
McNeil et al. 2010, p. 75; McNeil et al.
2011, p. 37; McNeil et al. 2012, p. 69;
McNeil et al. 2013a, pp. 49–52; McNeil
et al. 2013b, pp. 133–134). Home range
estimates for western yellow-billed
cuckoos using telemetered birds on the
lower Colorado River are considerably
smaller (20 ha) than those reported from
other areas such as the San Pedro River
(38.6 ha) (Halterman 2009, p. 93) and
the Rio Grande (56.3 ha) (Sechrist et al.
2009, p. 55) and may indicate
differences in habitat area, quality, or
prey densities (McNeil et al. 2013b, p.
137). On the Rio Grande in New Mexico,
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Sechrist et al. (2009, p. 55) estimated a
large variation in home range size,
ranging from 12 to 697 ac (5 to 282 ha).
On the upper San Pedro River in
Arizona, Halterman (2009, pp. 67, 93)
also estimated a large variation in home
range size, ranging from 2.5 to 556 ac (1
to 225 ha). In the intermountain west
(Idaho, Utah, Colorado), the western
yellow-billed cuckoo breeds in similar
habitats as described above but that are
more scattered and in lower density
(Parrish et al. 1999, p. 197; Taylor 2000,
pp. 252–253; Idaho Department of Fish
and Game 2005, entire; Wiggins 2005, p.
15). These measures suggest that the
amount of habitat required to support
nesting western yellow-billed cuckoos
even in rangewide riparian breeding
habitat is variable.
Home range size is unknown in
southwestern breeding habitat,
including in more xeroriparian
woodland, desert scrub and desert
grassland drainages with a tree
component, and in Madrean evergreen
woodland drainages. Whether the area
is considered marginal, suitable, or
optimal depends on numerous factors
and is variable across the species’ range.
Breeding habitat in more arid regions of
the Southwest may be made up of a
series of adjacent or nearly adjacent
habitat patches, less than 200 ac (81 ha)
each, which combined make up suitable
breeding habitat for the species. Often
interspersed with large openings, these
habitat patches include narrow stands of
trees, small groves of trees, or sparsely
scattered trees. For example, in the
Agua Fria River in central Arizona,
occupied habitat consists not only of
mature cottonwood and willow gallery
forest (multi-aged and multi-height
forest) found in rangewide breeding
habitat, but also smaller patches of
young willows that are limited to
narrow riparian corridors with mesquite
on the adjacent terrace, characteristic of
southwestern breeding habitat (Prager
and Wise 2015, p. 13). In the bajadas,
foothills, and mountain drainages of
southeastern Arizona, scattered
overstory trees, small patches of trees, or
narrow stands of trees contain suitable
breeding habitat (MacFarland and Horst
2015, entire, Corson 2018, pp. 5, 6–20;
Sferra et al. 2019, entire).
Although large expanses of habitat are
better than small patches for the species,
small habitat patches should be
evaluated when managing for the
western yellow-billed cuckoo. The
optimal minimum breeding habitat
patch size of 200 ac (81 ha) may not be
applicable for much of the Southwest,
where breeding habitat may be narrower
and patchier and areas of less than 40
ac (16 ha) may be used for breeding
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20839
(Sechrist et al. 2009, p. 55; White et al.
2018, pp. 14–37). These smaller sites
support fewer western yellow-billed
cuckoos, but collectively they may be
important for achieving recovery.
Western yellow-billed cuckoos appear
to stage (gather) in southern Arizona or
northern Mexico pre- and post-breeding,
suggesting that this region is important
to the DPS (McNeil et al. 2015, pp. 249,
251). Some individuals also roam
widely (several hundred miles),
apparently assessing food resources
prior to selecting a nest site (Sechrist et
al. 2012, pp. 2–11). A plausible
explanation for prolonged presence in
southern Arizona and northwestern
Mexico pre- and post-breeding may be
that western yellow-billed cuckoos are
taking advantage of increased insect
production in the monsoonal area.
Identifying and maintaining habitat
across the species’ range is important to
allow the species to take advantage of
variable environmental conditions for
successful breeding opportunities.
Foraging area. Western yellow-billed
cuckoos select a nesting site based on
optimizing the near-term foraging
potential of the neighborhood (Wallace
et al. 2013, p. 2102). Given that western
yellow-billed cuckoos are larger birds
with a short hatch-to-fledge time, the
adults must have access to abundant
food sources to successfully rear their
offspring. High-quality foraging habitat
in rangewide breeding habitat often
contains a mixture of overstory and
understory vegetation (typically
cottonwoods and willows) that provides
for diversity and abundance of prey.
However, tree habitat does not always
have both an overstory and understory.
Western yellow-billed cuckoos generally
forage within the tree canopy, and the
higher the foliage volume the more
likely western yellow-billed cuckoos are
to use a site for foraging (Laymon and
Halterman 1985, pp. 10–12). Foraging
areas can be less dense with lower
levels of canopy cover and often have a
high proportion of cottonwoods in the
canopy. Foraging areas can also include
riparian habitat with a high abundance
of tamarisk (White et al. 2020, pp. 51–
54).
The foraging distance and size of
foraging habitat required by western
yellow-billed cuckoo varies on prey
availability and other environmental
conditions and may vary annually and
from site to site. A foraging area during
the breeding season may overlap with
other western yellow-billed cuckoo
foraging areas if multiple nest sites are
within a single area. Hughes (2015, p. 3)
suggests that adjacent nesting western
yellow-billed cuckoos use time spacing
(i.e., no overlap in egg dates) to partition
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resources, allowing many nesting pairs
to share localized short-term abundance
of food. In a study in rangewide
breeding habitat in the Sacramento
Valley, California, the mean size of
foraging areas for 4 pairs of western
yellow-billed cuckoos was
approximately 48 ac (19 ha) (range 27 to
70 ac (11 to 28 ha)) of which about 25
ac (10 ha) was considered usable habitat
for foraging (Laymon 1980, p. 20;
Hughes 1999, p. 7).
In the southwestern United States and
northern Mexico, western yellow-billed
cuckoo foraging habitat is usually more
arid than adjacent occupied nesting
habitat. Western yellow-billed cuckoos
not only forage within woodland
breeding habitat, but they also forage in
almost any adjacent habitat. Desert
vegetation in intermittent and
ephemeral drainages or adjacent upland
areas may require direct precipitation to
flourish (Wallace et al. 2013, p. 2102).
Other desert areas with spring-fed
habitat may provide similar habitat
conditions. Both are important features
of western yellow-billed cuckoo
foraging habitat in the arid Southwest.
In Arizona and New Mexico, adjacent
foraging habitat other than in riparian
and xeroriparian or Madrean evergreen
woodland habitat includes several types
of semi-desert scrub, desert scrub,
chaparral, semi-desert grassland, and
desert grassland (Brown and Lowe 1982,
entire; Brown 1994, entire; Brown et al.
2007, pp. 4–5; NatureServe 2016, entire;
Drost et al. 2020, entire). In New Mexico
along the Rio Grande, 29 percent of all
estimated territories in the period 2009–
2014 were located in understory
vegetation (considered less than 6 m (15
ft) in height) that lacked a canopy
component (considered less than 25
percent cover), but included a New
Mexico olive (Forestiera neomexicana)
component (Hamilton 2014, p. 3–84). Of
these understory areas, roughly half
were dominated by exotic species
(primarily tamarisk) (Carstensen et al.
2015, pp. 57–61). Western yellow-billed
cuckoos in New Mexico have also been
observed foraging in adjacent habitat up
to 0.5 mi (0.8 km) away from nest sites
(Sechrist et al. 2009, p. 49). In the
intermountain west (Idaho, Utah,
Colorado), the western yellow-billed
cuckoo breeds in similar habitats as
described above but that are more
scattered and in lower density (Parrish
et al. 1999, p. 197; Taylor 2000, pp.
252–253; Idaho Fish and Game 2005,
entire; Wiggins 2005, p. 15).
Movement corridors and connectivity
of habitat. The western yellow-billed
cuckoo is a neotropical migratory
species that travels between North,
Central, and South America each spring
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and fall (Sechrist et al. 2012, p. 5;
McNeil et al. 2015, p. 244; Parametrix,
Inc. and Southern Sierra Research
Station 2019, pp. 97–108). As such, it
needs movement corridors of linking
habitats and stop-over sites along
migration routes and between breeding
areas (Faaborg et al. 2010, pp. 398–414;
Allen and Singh 2016, p. 9). During
movements between nesting attempts,
western yellow-billed cuckoos have
been found at riparian sites with small
groves or strips of trees, sometimes less
than 10 ac (4 ha) in extent (Laymon and
Halterman 1989, p. 274). The habitat
features at stop-over and foraging sites
are typically similar to the features at
breeding sites, but may be smaller in
size, may be narrower in width, and
may lack understory vegetation.
Western yellow-billed cuckoos may be
using nonbreeding areas as staging areas
or taking advantage of local foraging
resources (Sechrist et al. 2012, pp. 7–9;
McNeil et al. 2015, pp. 250–252). As a
result, western yellow-billed cuckoos
use nonbreeding or intermittently used
breeding areas as staging areas,
movement corridors, connectivity
between habitats, or foraging sites
(taking advantage of local foraging
resources). However, because these
nonbreeding habitat areas are not
limiting, we have not specifically
identified them as critical habitat.
Summary of Space for Individual and
Population Growth and for Normal
Behavior
Therefore, based on the information
above, for the majority of habitat within
the species’ range (rangewide breeding
habitat), we identify rivers and streams
of lower gradient and more open valleys
with a broad floodplain, containing
riparian woodland habitat with an
overstory and understory vegetation
component made up of various plant
species (most often dominated by
willow or cottonwood) to be physical or
biological features essential to the
conservation of the western yellowbilled cuckoo. In more arid regions of
the southwestern United States
(southwestern breeding habitat), we also
identify reaches of more arid riparian
and xeroriparian habitat (including
mesquite bosques), desert scrub and
desert grassland drainages with a tree
component, and Madrean evergreen
woodland drainages in low- to highgradient drainages to be a physical or
biological feature essential to the
conservation of this species. These
habitat types provide space for breeding,
nesting, and foraging for the western
yellow-billed cuckoo. These habitat
features also provide for migratory or
stop-over habitat and movement
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corridors for the western yellow-billed
cuckoo.
Food, Water, Air, Light, Minerals, or
Other Nutritional or Physiological
Requirements
Food. Western yellow-billed cuckoos
eat large insects but also prey on small
vertebrates such as frogs (e.g., Hyla spp.;
Pseudacris spp.; Rana spp.) and lizards
(e.g., Lacertilia sp.) (Hughes 1999, p. 8).
The diet of the western yellow-billed
cuckoo on the South Fork Kern River in
California showed the majority of the
prey to be the big poplar sphinx moth
larvae (Pachysphinx occidentalis) (45
percent), tree frogs (24 percent),
katydids (22 percent), and grasshoppers
(Order Othoptera) (9 percent) (Laymon
and Halterman 1985, pp. 10–12;
Laymon et al. 1997, p. 7). Minor prey at
that site and other sites includes beetles
(Order Coleoptera sp.), dragonflies
(Order Odonata), praying mantis (Order
Mantidae), flies (Order Diptera), spiders
(Order Araneae), butterflies (Order
Lepidoptera), caddis flies (Order
Trichoptera), crickets (Family
Gryllidae), and cicadas (Family
Cicadidae) (Laymon et al. 1997, p. 7;
Hughes 1999, pp. 7–8). In Arizona,
cicadas are an important food source
(Halterman 2009, p. 112). Western
yellow-billed cuckoos on the Buenos
Aires National Wildlife Refuge in
Arizona were observed eating tent
caterpillars, caterpillars of unidentified
species, katydids, and lizards (Griffin
2015, pp. 19–20). At upper Empire
Gulch in southeastern Arizona, a
western yellow-billed cuckoo was
photographed in a tree in gallery
riparian forest with a leopard frog (Rana
spp.) in its bill on July 21, 2014 (Barclay
2014, entire; Leake 2014, entire). In the
intermountain west (Idaho, Utah,
Colorado), the western yellow-billed
cuckoo feeds on similar insect species
(Parrish et al. 1999, p. 197; Idaho Fish
and Game 2005, p. 2; Wiggins 2005, p.
18).
Western yellow-billed cuckoos
depend on an abundance of large,
nutritious insect and vertebrate prey to
survive and raise young. In portions of
the southwestern United States, high
densities of prey species may be
seasonally found, often for brief periods
of time, during the vegetation growing
season. The arrival and nesting of
western yellow-billed cuckoos typically
coincides with the availability of prey,
which is later than in the eastern United
States (Hughes 2020, entire). Desiccated
riparian sites produce fewer suitable
insects than moist sites. In areas that
typically receive rains during the
summer monsoon, an increase in
humidity, soil moisture, and surface
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water flow are important triggers for
insect reproduction and western yellowbilled cuckoo nesting (Wallace et al.
2013, p. 2102). Western yellow-billed
cuckoos select a nesting site based on
optimizing the near-term foraging
potential of the habitat (Wallace et al.
2013, p. 2102). Given that western
yellow-billed cuckoos are large birds
with a short hatch-to-fledge time, the
adults must have access to abundant
food sources to successfully rear their
offspring (Laymon 1980, p. 27). The
variability of monsoon precipitation
across a region may result in areas with
favorable conditions for western yellowbilled cuckoo nesting in one year and
less favorable in a different year. In
years of high insect abundance, western
yellow-billed cuckoos lay larger
clutches (three to five eggs rather than
two), a larger percentage of eggs produce
fledged young, and they breed multiple
times (two to three nesting attempts
rather than one) (Laymon et al. 1997,
pp. 5–7).
Therefore, we identify the presence of
abundant, large insect fauna (e.g.,
cicadas, caterpillars, katydids,
grasshoppers, crickets, large beetles,
dragonflies, and moth larvae) and small
vertebrates (frogs and lizards) during
nesting season of the western yellowbilled cuckoo to be a physical or
biological feature essential to the
conservation of the species.
Water and humidity. Rangewide
breeding habitat for western yellowbilled cuckoo is largely associated with
perennial rivers and streams that
support the expanse of vegetation
characteristics needed by breeding
western yellow-billed cuckoos.
Throughout the western yellow-billed
cuckoo’s range, winter precipitation (as
rain or snow) provides water flow to the
larger streams and rivers in the late
spring and summer. In southwestern
breeding habitat, western yellow-billed
cuckoos also breed in ephemeral and
intermittent drainages, some of which
are associated with monsoonal
precipitation events. Hydrologic
conditions at western yellow-billed
cuckoo breeding sites can vary between
years. At some locations during low
rainfall years, water flow may be
reduced or absent, or soils may not
become saturated at appropriate times.
During high rainfall years, streamflow
may be extensive and the riparian
vegetation can be inundated and soil
saturated for extended periods of time.
The North American Monsoon
(monsoon) is a large-scale weather
pattern that causes high humidity and a
series of thunderstorms during the
summer in northwestern Mexico and
the southwestern United States (Erfani
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and Mitchell 2014, pp. 13,096–13,097;
National Weather Service 2019, p. 4). It
supplies about 60–80 percent of the
annual precipitation for northwestern
Mexico, 45 percent for New Mexico, and
35 percent for Arizona (Erfani and
Mitchell 2014, p. 13,096). The monsoon
typically arrives in early to mid-July in
Arizona and New Mexico, where much
of the rainfall occurs in the mountains
(Erfani and Mitchell 2014, pp. 13,096–
13,097; National Weather Service 2019,
p. 2). The southwestern United States, at
the northern edge of the monsoon’s
range, receives less and more variable
rainfall than northwestern Mexico
(National Weather Service 2019, p. 2).
Humid conditions created by the
North American Monsoon (Erfani and
Mitchell 2014, pp. 13,096–13,097;
National Weather Service 2019, p. 2)
and related surface and subsurface
moisture appear to be important for the
western yellow-billed cuckoo. The
moisture provides a ‘‘green-up’’ (sudden
germination or growth of vegetation)
that attracts prey and improves habitat
conditions. The species is restricted to
nesting in moist riparian habitat or in
drainages that bisect semi-desert, desert
grasslands, desert scrub, and Madrean
evergreen woodland in portions of the
western United States and northern
Mexico because of humidity
requirements for successful hatching
and rearing of young (Hamilton and
Hamilton 1965, p. 427; Gaines and
Laymon 1984, pp. 75–76; Rosenberg et
al. 1991, pp. 203–204; Corman and
Magill 2000, pp. 37–48; American
Birding Association 2014, entire;
Arizona Game and Fish Department
2018, entire; Westland Resources, Inc.
2019, entire; Cornell Lab of Ornithology
2020, (eBird data)).
Western yellow-billed cuckoos have
evolved larger eggs and thicker
eggshells, which help them cope with
potential higher egg water loss in the
hotter, drier conditions of the Southwest
(Hamilton and Hamilton 1965, pp. 426–
430; Ar et al. 1974, pp. 153–158; Rahn
and Ar 1974, pp. 147–152). Nest sites
have lower temperatures and higher
humidity compared to areas along the
riparian forest edge or outside the forest
(Launer et al. 1990, pp. 6–7, 23). Recent
research on the lower Colorado River
has confirmed that western yellowbilled cuckoo nest sites had
significantly higher daytime relative
humidity (6–13 percent higher) and
significantly lower daytime
temperatures (2–4 degrees Fahrenheit
(1–2 degrees Celsius) lower) than
average forested sites (McNeil et al.
2011, pp. 92–101; McNeil et al. 2012,
pp. 75–83).
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Seasonal precipitation results in
vegetative regeneration in the
intermittent and ephemeral drainages
and adjacent desert scrub, desert
grassland, and Madrean evergreen
woodlands of the southwestern United
States. High summer monsoonal
humidity and rain lead to summer flow
events in drainages and increased
vegetative growth and associated insect
production during the breeding season.
The North American Monsoon promotes
growth of shallow-rooted understory
vegetation in mesquite-dominated
woodlands, Madrean evergreen
woodlands, desert scrub drainages,
desert grassland drainages, and adjacent
desert and grassland vegetation (Brown
1994, pp. 59–62; Wallace et al. 2013, p.
2102). The hydrologic processes in
Madrean evergreen woodlands, semidesert and desert scrub drainages, and
semi-desert and desert grassland
drainages of southeastern Arizona are
different than the rest of the range of the
western yellow-billed cuckoo. These
bajada and upland habitats on gently
rolling hillsides are interspersed with
intermittent or ephemeral drainages.
Humidity brought on by the summer
monsoon may be an especially
important trigger for breeding western
yellow-billed cuckoos in this otherwise
dry landscape.
Nesting continues through August
and frequently into September in
southeastern Arizona, likely in response
to the increased food resources
associated with the seasonal summer
rains (Corman and Wise-Gervais 2005,
p. 202). For example, the big poplar
sphinx moth is an earth pupator (larvae
burrow in the ground, and pupae
emerge under certain environmental
conditions) (Oehlke 2017, p. 5). The
sphinx moth has a receptor that detects
the water content of air to sense changes
in humidity and when conditions are
favorable for feeding and breeding
(McFarland 1973, pp. 199–208; von Arx
et al. 2012, p. 9471). In riparian
woodland habitat soil, moisture and
humidity cue the sphinx moths to
emerge. In Arizona, summer monsoonal
precipitation mimics typical riparian
woodland soil moisture conditions,
which cue the sphinx moth to emerge
from the soil. Although sphinx moths
are just one of the foods eaten by
western yellow-billed cuckoos, we use
these moths to illustrate that the unique
monsoonal conditions in southeastern
Arizona contributing toward food
production are an important factor in
western yellow-billed cuckoo presence
in southeastern Arizona.
A large proportion of the remaining
occupied habitat persists in
hydrologically altered systems in the
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Southwest where the timing, magnitude,
and frequency of natural flow have
changed (Service 2002, pp. J1–J34).
Hydrologically altered systems, with
less dynamic riverine process than
unaltered systems, can support suitable
western yellow-billed cuckoo habitat if
suitable woodland vegetation as
described above is present. As discussed
above and in the October 3, 2014,
Federal Register listing the western
yellow-billed cuckoo (79 FR 59992),
human actions have cleared vegetation,
modified physical site conditions,
altered natural river processes, and
disrupted biotic interactions along
much of the western yellow-billed
cuckoo habitat in the West (Service
2002, p. H–11). In the intermountain
West (Idaho, Utah, Colorado), similar
losses and degradation of habitat have
occurred (Parrish et al. 1999, pp. 200–
201; Idaho Fish and Game 2005, p. 3;
Wiggins 2005, pp. 22–27). Habitat
conditions are greatly influenced by
hydrologic regime and depth to
groundwater, and native riparian
vegetation in altered systems is unlikely
to reestablish unless the hydrologic
regime is restored (Stromberg et al.
2007, pp. 381–391). However, these
altered systems, which often cannot
support the native plant species and
structural diversity of unaltered
systems, can support more adapted
nonnative tree species like tamarisk or
Russian olive. Western yellow-billed
cuckoos occupy nonnative habitat
interspersed with native habitat on the
Colorado, Bill Williams, Verde, Gila,
Santa Cruz, San Pedro, and Rio Grande
Rivers (Corman and Magill 2000, pp.
15–16, 37–48; Sonoran Institute 2008,
pp. 30–34; Dockens and Ashbeck 2011a,
p. 6; Dockens and Ashbeck 2011b, p. 10;
McNeil et al. 2013b, p. I–1; Arizona
Game and Fish Department 2018, entire;
Parametrix, Inc. and Southern Sierra
Research Station 2019, p. 5–1).
Subsurface hydrologic conditions are
equally important to surface water
conditions in determining riparian
vegetation patterns. Depth to
groundwater plays an important part in
the distribution of riparian vegetation
and western yellow-billed cuckoo
habitat. Riparian forest trees need access
to shallow groundwater to grow to the
appropriate size and density to provide
habitat for nesting, foraging, and
migrating western yellow-billed
cuckoos. Goodding’s willows and
Fremont cottonwoods do not regenerate
successfully if the groundwater levels
fall below 6 ft (2 m) from the surface
(Shafroth et al. 2000, pp. 66–75).
Goodding’s willows cannot survive if
groundwater levels drop below 10 ft (3
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m), and Fremont cottonwoods cannot
survive if groundwater drops below 16
ft (5 m) (Stromberg and Tiller 1996, p.
123). Abundant and healthy riparian
vegetation decreases and habitat
becomes stressed and less productive
when groundwater levels are lowered
(Stromberg and Tiller 1996, pp. 123–
127).
Therefore, based on the information
above, we identify seasonally or
perennially flowing rivers, streams, and
drainages; elevated subsurface
groundwater tables; vegetative cover
that provides important microhabitat
conditions for successful breeding and
prey (high humidity and cooler
temperatures); seasonal precipitation
(winter and summer) in the Southwest;
and high summer humidity as physical
and biological features essential to the
conservation of the western yellowbilled cuckoo.
Conditions for germination and
regeneration of vegetation. The
abundance and distribution of fine
sediment deposited on floodplains
during flood events is critical for the
development, abundance, distribution,
maintenance, and germination of
riparian tree species. This sediment
deposition must be accompanied by
sufficient surface moisture for seed
germination and sufficient groundwater
levels for survival of seedlings and
saplings (Stromberg 2001, pp. 27–28).
The lack of stream flow processes,
which deposit such sediments and clear
out woody debris, may lead riparian
forested areas to senesce (age and
become less productive) and to become
degraded and not able to support the
varied vegetative structure required for
western yellow-billed cuckoo nesting
and foraging.
In unmanaged hydrologic systems
(natural riverine systems), associated
with rangewide breeding habitat, this
variability of water flow results in
removal of stream banks and deposition
of soil and sediments. These sediments
provide areas for vegetation (especially
cottonwood and willow) to colonize and
provide diverse habitat for the western
yellow-billed cuckoo. In managed
hydrologic systems (systems controlled
by dams), stream flow is often muted
and does not provide the magnitude of
these removal and deposition events
except during flood events depending
on stream-bank composition (Fremier et
al. 2014, pp. 4–6). However, if these
systems are specifically managed to
mimic more natural conditions, some
removal and deposition can occur. The
range and variation of stream flow
frequency, magnitude, duration, and
timing that will establish and maintain
western yellow-billed cuckoo habitat
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can occur in both managed and
unmanaged flow conditions depending
on the interaction of the water feature
and its floodplain or the physical
characteristics of the landscape.
However, successional vegetation
change that produces suitable habitat
consisting of varied vegetative structure
can also occur in managed river and
reservoir systems (and in human-altered
river systems) when managed to mimic
natural stream flows, but sometimes
with different vegetation species
composition, at different timing,
frequency, and magnitude than natural
riverine systems. For example, varying
amounts of western yellow-billed
cuckoo habitat are available from
month-to-month and year-to-year as a
result of dam operations. During dry
years, when lake levels may be low,
vegetation can be established and
mature into habitat for the western
yellow-billed cuckoo. In wet years, this
vegetation can be flooded for extended
periods of time and be stressed or killed.
This is particularly true of areas
upstream of reservoirs like Lake Isabella
in California, Roosevelt and Horseshoe
Reservoirs in Arizona, and Elephant
Butte Reservoir in New Mexico, all of
which have relatively large western
yellow-billed cuckoo populations. The
filling and draw-down of reservoirs
often mimics the flooding and drying
events associated with intact riparian
woodland habitat and river systems
providing habitat for the western
yellow-billed cuckoo.
In southern Arizona and New Mexico,
where water is less available and
releases do not mimic the natural
hydrograph, riparian habitat is often
narrower, patchier, sparser, and
composed of more xeroriparian and
nonriparian trees and large shrubs than
in a free- flowing river. Habitat
regeneration opportunities occur less
frequently than in natural systems or
managed systems that mimic the natural
hydrograph. Prolonged drying and
flooding from reservoir management can
also affect food resources and habitat
suitability for western yellow-billed
cuckoos. For example, food availability
is affected when prolonged inundation
reduces survivability of grounddwelling insects such as sphinx moth
pupa or katydid eggs (Peterson et al.
2008, pp. 7–9). Likewise, prolonged
drying reduces the vegetation available
for prey insects to consume, so less
insect biomass is available for western
yellow-billed cuckoos.
In the southwestern United States, the
North American Monsoon season,
which peaks in July and August when
western yellow-billed cuckoos are
breeding, provides about 45 percent and
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35 percent of the annual precipitation
for New Mexico and Arizona,
respectively (Erfani and Mitchell 2014,
p. 13096). The increased humidity and
rains promote rapid and dense
herbaceous growth (forbs, grasses, and
vines) in occupied habitat in riparian
(including xeroriparian) drainages
intersecting desert scrub and desert
grassland, and Madrean evergreen
woodlands. In southeastern Arizona,
Madrean evergreen woodland habitat
receives half of the annual precipitation
during the growing season from May
through August (Brown 1994, pp. 60,
62).
Therefore, based on the information
above, we identify flowing perennial
rivers and streams and deposited fine
sediments as physical and biological
features essential to the conservation of
the western yellow-billed cuckoo. These
conditions may occur in either natural
or regulated human-altered riverine
systems. We also identify intermittent
and ephemeral drainages and
immediately adjacent upland habitat
(which receive moisture as a result of
summer monsoon events and other
seasonal precipitation) that promote
seed germination and regeneration as
essential physical or biological features
of western yellow-billed cuckoo habitat.
Cover or shelter. Rangewide breeding
habitat and the more arid southwestern
breeding habitat provide the western
yellow-billed cuckoo with cover and
shelter while foraging and nesting.
Placing nests in dense vegetation
provides cover from predators that
would search for adult western yellowbilled cuckoos, their eggs, nestlings, and
fledged young. For example, northern
harriers (Circus cyaneus) prey on
western yellow-billed cuckoo nestlings
in open riparian vegetation at
restoration sites in California. Dense
vegetation in the habitat patch makes it
difficult for northern harriers to prey on
species like the western yellow-billed
cuckoo (Laymon 1998, pp. 12–14). As
noted above, shelter provided by the
vegetation also contributes toward
providing nesting sites, temperature
amelioration, and increased humidity,
all of which assist in benefiting the life
history of western yellow-billed cuckoo.
Therefore, we identify riparian trees,
including but not limited to willow,
cottonwood, alder, walnut, sycamore,
boxelder, and ash that provide cover
and shelter for nesting, foraging, and
dispersing western yellow-billed
cuckoos as physical or biological
features essential to the conservation of
the western yellow-billed cuckoo. In
southwestern breeding habitat in more
arid riparian drainages, in addition to
the riparian species above, we identify
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oak, mesquite, hackberry, acacia,
juniper, greythorn, mimosa, soapberry,
desert willow, Russian olive, and
tamarisk that provide cover and shelter
for nesting, foraging, and dispersing
western yellow-billed cuckoos as
physical or biological features essential
to the conservation of the western
yellow-billed cuckoo.
Sites for breeding, reproduction, or
rearing (or development) of offspring.
Young habitat. The presence of young
trees appears to be a component of
breeding habitat in at least some sites.
In studies of riparian forests throughout
California and along the CaliforniaArizona border along the lower
Colorado River, researchers found that
the western yellow-billed cuckoo is not
restricted to old-growth willows and
cottonwood habitat, but occurs in
habitat with younger trees and saplings
9–32 ft (3–30 m) or less (Gaines and
Laymon 1984, pp. 73–75; Anderson and
Laymon 1989, entire; Laymon and
Halterman 1989, entire; Raulston 2020,
p. 4). Along the lower Colorado River in
restored sites at the Palo Verde
Ecological Reserve, the number of
western yellow-billed cuckoo territories
increased annually until the fourth year
after planting and then began declining
and moving into more recently planted
areas (Raulston 2020, p. 20). Between
2008 and 2012, researchers found that
small tree stem density associated with
young trees and total canopy closure at
revegetation sites positively associated
with western yellow-billed cuckoo nest
placement and that native large tree
stem density showed only a weak
positive association with nest placement
(McNeil et al. 2013b, ES–2, Raulston
2020, p. 5). Area (site size) was also a
predictor of site occupancy to a lesser
degree; the median size of occupied
sites (37.2 ha) was almost three times as
large as unoccupied sites (12.8 ha).
Western yellow-billed cuckoo nests
have been documented in Fremont
cottonwood, Goodding’s black willow
(Salix gooddingii), red willow (Salix
laevigata), coyote willow (Salix exigua),
yew-leaf willow (Salix taxifolia),
Arizona sycamore, mesquite, tamarisk,
hackberry, boxelder, soapberry, Arizona
walnut, acacia, ash, alder, seep willow
(Baccharis salicifolia), English walnut
(Juglans regia), oak, and juniper
(Laymon 1980, pp. 6–8; Laymon 1998,
p. 7; Hughes 1999, p. 13; Corman and
Magill 2000, p. 16; Halterman 2001, p.
11; Halterman 2002, p. 12; Halterman
2003, p. 11; Halterman 2004, p. 13;
Corman and Wise-Gervais 2005, p. 202;
Halterman 2005, p. 10; Halterman 2007,
p. 5; Holmes et al. 2008, p. 21; McNeil
et al. 2013b, pp. I–1–I–3; Tucson
Audubon Society 2015, p. 44; Groschupf
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20843
2015, entire; MacFarland and Horst
2015, pp. 9–12; Sferra et al. 2019, p. 3).
In one study of a compilation of nests,
nest site characteristics in rangewide
riparian woodland breeding habitat
have been compiled from 217 western
yellow-billed cuckoo nests from
primarily rangewide breeding habitat on
the Sacramento and South Fork Kern
Rivers in California, and the Bill
Williams and San Pedro Rivers in
Arizona. Western yellow-billed cuckoos
generally nest in thickets dominated by
willow trees along floodplains greater
than 200 ac (81 ha) in extent and greater
than 325 ft (100 m) in width. Nests are
placed on well-foliaged branches closer
to the tip of the branch than the trunk
of the tree (Hughes 1999, p. 13). Nests
are built from 4 ft to 73 ft (1 m to 22
m) above the ground (average 22 ft (7
m)). Nests at the San Pedro River
averaged higher (29 ft (9 m)) than either
the Bill Williams River (21 ft (6 m)) or
the South Fork Kern River (16 ft (5 m)).
Nest trees ranged from 10 ft (3 m) to 98
ft (30 m) in height and averaged 35 ft (11
m). In older stands, heavily foliaged
branches that are suitable for nesting
often grow out into small forest
openings or over sloughs or streams,
making for ideal nest sites. In younger
stands, nests are more often placed in
vertical forks or tree crotches. Most nest
sites in the study were in rangewide
riparian breeding habitat and were
placed in willows (72 percent of 217
nests), in generally willow-dominated
sites. Nests were also documented in
other riparian tree species, including
Fremont cottonwood (13 percent),
mesquite (7 percent), tamarisk (4
percent), netleaf hackberry (Celtis
laevigata var. reticulata) (2 percent),
English walnut (Juglans regia) (1
percent), boxelder (less than 1 percent),
and soapberry (Sapindus saponaria)
(less than 1 percent) (Laymon 1980, p.
8; Laymon 1998, p. 7; Hughes 1999, p.
13; Corman and Magill 2000, p. 16;
Halterman 2001, p. 11; Halterman 2002,
p. 12; Halterman 2003, p. 11; Halterman
2004, p. 13; Corman and Wise-Gervais
2005, p. 202; Halterman 2005, p. 10;
Halterman 2007, p. 5; Holmes et al.
2008, p. 21).
Canopy cover directly above the nest
is generally dense (average cover is 89
percent) and is denser at the South Fork
Kern River (93 percent) and Bill
Williams River (94 percent) than at the
San Pedro River (82 percent). Canopy
closure in a plot around the nest
averages 71 percent and was higher at
the Bill Williams River (80 percent) than
at the South Fork Kern River (74
percent) or San Pedro River (64 percent)
(Laymon et al. 1997, pp. 22–23;
Halterman 2001, pp. 28–29; Halterman
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2002, p. 25; Halterman 2003, p. 27;
Halterman 2004, p. 42; Halterman 2005,
p. 32; Halterman 2006, p. 34). In the
intermountain West (Idaho, Utah,
Colorado), the western yellow-billed
cuckoo breeds in similar habitats as
described above, but they are more
scattered and in lower density (Parrish
et al. 1999, pp. 196–197; Taylor 2000,
pp. 252–253; Idaho Fish and Game
2005, entire; Wiggins 2005, p. 15).
Optimal breeding habitat in rangewide
riparian breeding habitat contains
willow-dominated groves with dense
canopy closure and well-foliaged
branches for nest building with nearby
foraging areas consisting of a mixture of
cottonwoods and willows with a high
volume of healthy foliage.
In a study on a lower Colorado River
revegetation site, where cottonwood,
willow, and mesquite were planted
yellow-billed cuckoos nested in
cottonwoods (n = 95, 57.5 percent),
Goodding’s willows (n = 49, 29.7
percent), honey mesquite (Prosopis
glandulosa) (n = 13, 7.9 percent),
tamarisk (n = 5, 3.0 percent), coyote
willow (n = 2, 1.2 percent), and seep
willow (n = 1, 0.7 percent) (Parametrix,
Inc. and Southern Sierra Research
Station 2019, Table 24 p. 89). Trees or
shrubs used as nest substrates ranged in
height from 2.5 m (8.2 ft) to 25.0 m (82
ft) (mean = 12.3 m (40.4 ft)). Nest
heights ranged from 1 m (3.3 ft) to 20
m (66 ft) (mean = 7.6 m (24.8 ft))
(Parametrix, Inc. and Southern Sierra
Research Station 2019, pp. ES–3, 88).
Tamarisk was not planted and is
uncommon within the revegetation
sites.
Some historical records document
western yellow-billed cuckoo presence
during the breeding season in extensive
mesquite bosques on the Santa Cruz
River and in the semi-desert grasslands
and desert scrub xeroriparian drainages
of Canelo Hills; and in the Madrean
evergreen woodlands mountain
drainages of the Atascosa, Pajarito,
Santa Rita, Patagonia, Huachuca, and
Chiricahua Mountains of Southeastern
Arizona (Groschupf (1987, pp. 11, 14,
16; Corman and Magill 2000, pp. 26–29,
37). In Arizona in the late 1990s,
western yellow-billed cuckoos were
documented in Sycamore Canyon and
Pena Blanca Canyon in the Atascosa
Mountains, Canelo Hills, and in the
desert scrub and grassland xeroriparian
drainages in the Altar Valley on Buenos
Aires National Wildlife Refuge (Corman
and Magill 2000, pp. 38, 40–44, 48, 51).
The first oak nest documented in a
Madrean evergreen woodland drainage
was found in the lower Santa Rita
Mountains in 2014 (Tucson Audubon
Society 2015, p. 44).
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In a 2018–2019 study to confirm
western yellow-billed cuckoo breeding
(copulation, active nests, or fledged
young), breeding was documented at 39
out of 51 occupied sites in ephemeral
xeroriparian drainages in Madrean
evergreen woodland, desert and semidesert scrub, and semi-desert grassland
habitats in southeastern Arizona. These
51 occupied drainages were in the lower
Santa Catalina Mountains, lower Santa
Rita Mountains, Patagonia Mountains,
lower Atascosa Mountains, Altar Valley,
Baboquivari Mountains, Canelo Hills,
and Huachuca Mountains (Drost et al.
2020, pp. 11–13. Multiple nests were
found at some sites, including Las
Guijas Wash and Canoa Wash in the
Altar Valley, and Box Canyon and
Florida Canyon in the Santa Rita
Mountains. Trees where nests were
placed varied in size and amount of
cover, ranging from small to large trees
and from well-concealed nests to
partially exposed nests (Service 2020c,
entire). Most nests were located along
the drainage bottoms (See section on
southwestern breeding (nesting)
habitat).
Therefore, we identify rangewide
riparian woodland generally containing
willow and cottonwood, usually within
floodplains greater than 200 ac (81 ha)
in extent and greater than 325 ft (100 m)
in width, with one or more densely
foliaged nesting areas, to be a physical
or biological feature essential to the
conservation of the species. In some
areas, we also identify southwestern
breeding habitat (drainages with
riparian, xeroriparian, and nonriparian
tree and large shrub habitat intersecting
desert scrub, desert grassland, and
Madrean evergreen woodland, and
Madrean pinyon-juniper woodland) that
may be less than the 200-ac (81-ha) area,
325-ft (100-m) width with one or more
nesting and foraging sites to be a
physical or biological feature essential
to the conservation of the species.
Effects of climate change. The
available information on the effects of
climate change has led us to predict that
there will be altered environmental
conditions across the western United
States (the breeding range of the western
yellow-billed cuckoo) (Hoerling et al.
2013, pp. 3–15). In the southwestern
United States, northern Mexico,
California, Intermountain West, and
Pacific Northwest, climate change
information is generally leading us to
predict an overall warmer, drier climate,
with periodic episodic precipitation
events that, depending on site
conditions, are expected to have adverse
effects on habitat of the western yellowbilled cuckoo (Enquist et al. 2008, pp.
1–32; Gardali et al. 2012, pp. 8–10;
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Munson et al. 2012, pp. 1,083–1,095;
Friggens and Finch 2015, entire; Smith
and Finch 2016, entire). In rivers that
depend on snowmelt, these changes are
expected to result in more winter
flooding and reduced summer stream
flows (Dominguez et al. 2012, pp. 1–7).
The amount of surface and groundwater
available to regenerate and sustain
riparian forests is expected to decline
overall with persistent drought, favor
the spread of tamarisk and other
nonnative vegetation, and increase fire
frequency (Westerling et al. 2006, pp.
942–943; McCarthy 2012, pp. 23–25;
Smith and Finch 2016, p. 128).
Precipitation events under most climate
change scenarios within the range of the
DPS will decrease in frequency and
increase in severity (Dominguez et al.
2012, pp. 4–7; Melillo et al. 2014, pp.
70–81). Impacts to riparian habitat from
climate change will exacerbate impacts
from water drawdown from human use,
impoundments, channelization, and
alteration of river flows across the
western United States and Mexico, and
from conversion of habitat from native
to mostly nonnative vegetation (Glenn
and Nagler 2005, p. 439; Bradley et al.
2009, pp. 1514–1519; IPCC 2014, pp. 4–
11; Friggens and Finch 2015, pp. 120–
131).
Changing climate is expected to place
added stress on the species and its
habitat. This change may reduce
available nesting sites and patch size
and affect prey abundance as a result of
lower humidity in riparian areas from
reduced moisture retention, through
periods of prolonged desiccation, and
through increased likelihood of scouring
flood events (Melillo et al. 2014, p. 75).
A recent study found western yellowbilled cuckoo habitat suitability to be
significantly reduced with hotter
maximum July temperatures and
increased distance to water along the
Rio Grande, with 65–98 percent of their
suitable habitat in New Mexico
expected to be lost by 2090 (Friggens
and Finch 2015, p. 11). Droughts may
impact areas in Arizona that are
influenced by monsoons (Wallace et al.
2013, pp. 2094–2107). Analyses of
stream gauge data in the southwestern
United States indicate that earlier and
diminished stream discharge is
expected in Arizona, Colorado, New
Mexico, and Utah, which will likely
reduce survival and reproduction rates
of cottonwood, willow, box elder, and
sycamore tree species (Smith and Finch
2016, pp. 120–131). Habitat suitability
models further predict that changes in
climate will increase habitat
fragmentation and decrease breeding
habitat patch size along the Rio Grande
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in New Mexico (Friggens and Finch
2015, pp. 1–22). In addition, evidence
shows that climate change may disrupt
the synchrony of nesting western
yellow-billed cuckoos and their food
supply, causing further population
decline and curtailment of its occupied
range (Durst 2004, pp. 40–41; Scott et al.
2004, p. 70; Visser and Both 2005, pp.
2561–2569). For a more thorough
discussion of climate change and the
impacts it has on habitat for the western
yellow-billed cuckoo, see the final rule
to list the species as threatened
published in the Federal Register on
October 3, 2014 (79 FR 59992 at 60023).
Summary of Physical or Biological
Features Essential for the Western
Yellow-billed Cuckoo
According to 50 CFR 424.12(b)(1)(ii),
we identify physical and biological
features essential to the conservation of
the species at an appropriate level of
specificity using the best available
scientific data. This analysis will vary
between species and may include
consideration of the appropriate quality,
quantity, and spatial and temporal
arrangements of such features in the
context of the life history, status, and
conservation needs of the species.
Given the wide variety and extent of
foraging habitat outside the breeding
habitat, and the large geographic areas
in which western yellow-billed cuckoos
search for food, we are not designating
foraging habitat as critical habitat. Based
on our current knowledge of the habitat
characteristics required to sustain the
species’ life-history processes including
breeding and dispersing, we have
determined that the specific physical or
biological features essential to the
conservation of the western yellowbilled cuckoo consist of the following
three components:
Physical or Biological Feature 1—
Rangewide breeding habitat. Riparian
woodlands across the DPS;
Southwestern breeding habitat,
primarily in Arizona and New Mexico:
Drainages with varying combinations of
riparian, xeroriparian, and/or
nonriparian trees and large shrubs. This
physical or biological feature includes
breeding habitat found throughout the
DPS range as well as additional
breeding habitat characteristics unique
to the Southwest.
a. Rangewide breeding habitat
(including areas in the Southwest).
Rangewide breeding habitat is
composed of riparian woodlands within
floodplains or in upland areas or
terraces often greater than 325 ft (100 m)
in width and 200 ac (81 ha) or more in
extent with an overstory and understory
vegetation component in contiguous or
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nearly contiguous patches adjacent to
intermittent or perennial watercourses.
The slope of the watercourses is
generally less than 3 percent but may be
greater in some instances. Nesting sites
within the habitat have an aboveaverage canopy closure (greater than 70
percent), and have a cooler, more humid
environment than the surrounding
riparian and upland habitats.
Rangewide breeding habitat is
composed of varying combinations of
riparian species including the following
nest trees: Cottonwood, willow, ash,
sycamore, boxelder, alder, and walnut.
b. Southwestern breeding habitat.
Southwestern breeding habitat, found
primarily in Arizona and New Mexico,
is more variable than rangewide
breeding habitat. Southwestern breeding
habitat occurs within or along
perennial, intermittent, and ephemeral
drainages in montane canyons, foothills,
desert floodplains, and arroyos. It may
include woody side drainages, terraces,
and hillsides immediately adjacent to
the main drainage bottom. Drainages
intersect a variety of habitat types
including, but not limited to, desert
scrub, desert grassland, and Madrean
evergreen woodlands (presence of oak).
Southwestern breeding habitat is
composed of varying combinations of
riparian, xeroriparian, and/or
nonriparian tree and large shrub species
including, but not limited to, the
following nest trees: Cottonwood,
willow, mesquite, ash, hackberry,
sycamore, walnut, desert willow,
soapberry, tamarisk, Russian olive,
juniper, acacia, and/or oak. In perennial
and intermittent drainages,
Southwestern riparian breeding habitat
is often narrower, patchier, and/or
sparser than rangewide riparian
breeding habitat and may contain a
greater proportion of xeroriparian trees
and large shrub species. Although some
cottonwood and willow may be present
in Southwestern riparian habitat,
xeroriparian species may be more
prevalent. Mesquite woodland may be
present within the riparian floodplain,
flanking the outer edges of wetter
riparian habitat, or scattered on the
adjacent hillsides. The more arid the
drainage, the greater the likelihood that
it will be dominated by xeroriparian and
nonriparian nest tree species. Arid
ephemeral drainages in southeastern
Arizona receive summer humidity and
rainfall from the North American
Monsoon (PBF 3), with a pronounced
green-up of grasses and forbs. These arid
ephemeral drainages often contain
xeroriparian species like hackberry or
nonriparian species associated with the
adjacent habitat type like oak, mesquite,
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acacia, mimosa, greythorn, and juniper.
In southeastern Arizona mountains,
breeding habitat is typically below pine
woodlands (∼6,000 ft (1,829 m)).
Physical or Biological Feature 2—
Adequate prey base. Presence of prey
base consisting of large insect fauna (for
example, cicadas, caterpillars, katydids,
grasshoppers, large beetles, dragonflies,
moth larvae, spiders), lizards, and frogs
for adults and young in breeding areas
during the nesting season and in postbreeding dispersal areas.
Physical or Biological Feature 3—
Hydrologic processes. The movement of
water and sediment in natural or altered
systems that maintains and regenerates
breeding habitat. This physical or
biological feature includes hydrologic
processes found in rangewide breeding
habitat as well as additional hydrologic
processes unique to the Southwest in
southwestern breeding habitat:
a. Rangewide breeding habitat
hydrologic processes (including the
Southwest): Hydrologic processes
(either natural or managed) in river and
reservoir systems that encourage
sediment movement and deposits and
promote riparian tree seedling
germination and plant growth,
maintenance, health, and vigor (e.g.,
lower-gradient streams and broad
floodplains, elevated subsurface
groundwater table, and perennial rivers
and streams). In some areas where
habitat is being restored, such as on
terraced slopes above the floodplain,
this may include managed irrigated
systems that may not naturally flood
due to their elevation above the
floodplain.
b. Southwestern breeding habitat
hydrologic processes: In southwestern
breeding habitat, elevated summer
humidity and runoff resulting from
seasonal water management practices or
weather patterns and precipitation
(typically from North American
Monsoon or other tropical weather
events) provide suitable conditions for
prey species production and vegetation
regeneration and growth. Elevated
humidity is especially important in
southeastern Arizona, where western
yellow-billed cuckoos breed in
intermittent and ephemeral drainages.
Because the western yellow-billed
cuckoo exists in noncontiguous areas
across a wide geographical and
elevational range and its habitat is
subject to dynamic events, the areas
described below (see Final Critical
Habitat Designation) are essential to the
conservation of the western yellowbilled cuckoo because they provide
opportunities for breeding, allow for
connectivity between habitat, assist in
dispersal, provide redundancy to
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protect against catastrophic loss, and
provide representation of the varying
habitat types used for breeding, thereby
helping to sustain the species. The
physical or biological features essential
to the conservation of the western
yellow-billed cuckoo are present in the
areas designated, but the specific quality
of habitat for nesting, migration, and
foraging will vary in condition and
location over time due to plant
succession and the dynamic
environment in which they exist. As a
result, the areas that are designated may
not contain at any one time all of the
physical and biological features that
have been identified for the western
yellow-billed cuckoo.
Based on use of the areas for breeding,
we conclude that all of the areas
identified contain all or most of the
physical or biological features, but in
some cases, these features are less
prevalent, or their presence is variable
over time due to the changing nature of
habitat from hydrologic processes. As
stated above, all critical habitat units are
considered to have been occupied at the
time of listing.
Special Management Considerations or
Protection
When designating critical habitat, we
assess whether the specific areas within
the geographical area occupied by the
species at the time of listing contain
features that are essential to the
conservation of the species and which
may require special management
considerations or protection. Here we
describe the type of special management
considerations or protection that may be
required for the physical or biological
features identified for the western
yellow-billed cuckoo above. The
specific critical habitat units and
subunits where these management
considerations or protection may be
required are identified in Table 2 below.
A detailed discussion of activities
influencing the western yellow-billed
cuckoo and its habitat can be found in
the final listing rule (79 FR 59992,
October 3, 2014). The above-described
physical or biological features (PBFs)
may require special management
considerations or protection to reduce
the following threats or potential
threats: Disruption of hydrologic
processes that are necessary to maintain
a healthy riparian system; unauthorized
or uncontrolled grazing; loss of habitat
from development activities and
extractive uses (sand, gravel, or mineral
extraction); degradation of habitat as a
result of expansion of nonnative
vegetation; destruction of habitat by
uncontrolled wildfire; reduction of prey
insect abundance by the unauthorized
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or improper application of pesticides;
removal of habitat by biocontrol insects;
and habitat loss and degradation from
invasive nonnative pest insects. More
specific activities that may need special
management are identified in Table 2,
below.
Special management considerations
or protection are required within critical
habitat areas to address these threats.
Management activities that could
ameliorate these threats include (but are
not limited to) the following:
Monitoring and regulating stream flows
below reservoirs to mimic natural
flooding and other hydrologic processes
to help maintain habitat; establishing
permanent conservation easements or
land acquisition to protect the species
and its habitat; minimizing habitat
disturbance, fragmentation, and
destruction through use of best
management practices; and providing
appropriate buffers around western
yellow-billed cuckoo habitat.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(2) of the
Act, we use the best scientific data
available to designate critical habitat. In
accordance with the Act and our
implementing regulations at 50 CFR
424.12(b), we review available
information pertaining to the habitat
requirements of the species and identify
specific areas within the geographical
area occupied by the species at the time
of listing and any specific areas outside
the geographical area occupied by the
species to be considered for designation
as critical habitat. We are not currently
designating any areas outside the
geographical area occupied by the
species because the western yellowbilled cuckoo is found throughout its
historical range, nor are we designating
all areas within the geographical area
occupied by the species. Additional
areas besides those identified as critical
habitat may be important for recovery
for the western yellow-billed cuckoo,
but these areas were not identified as
critical habitat; however, they may be
part of future recovery planning efforts
for the species.
To determine and select appropriate
occupied areas that contain the physical
or biological features essential to the
conservation of the species, we
developed a conservation strategy for
identifying critical habitat for the
species. The goal of our conservation
strategy for the western yellow-billed
cuckoo is to assist in recovery of the
species to the point where the
protections of the Act are no longer
necessary. Other actions in addition to
designating critical habitat may be
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necessary to achieve recovery of the
species including development of
additional management actions aimed at
conserving, enhancing, and protecting
the western yellow-billed cuckoo and its
habitat. These actions would be further
identified in a Recovery Plan for the
species. The role of critical habitat in
achieving this conservation goal is to
identify the specific areas within the
western yellow-billed cuckoo’s range
that provide essential physical and
biological features, without which areas
the DPS’s rangewide resiliency,
redundancy, and representation could
not be achieved. This, in turn, requires
an understanding of the fundamental
parameters of the species’ biology and
ecology based on well-accepted
conservation-biology and ecological
principles for conserving species and
their habitats, such as those described
by Carroll et al. (1996, pp. 1–12); Meffe
and Carroll (1997, pp. 347–383); Shaffer
and Stein (2000, pp. 301–321); NRCS
(2004 entire); Tear et al. (2005, pp. 835–
849) and Wolf et al. (2015, pp. 200–207);
and more general riparian and avian
conservation management prescriptions
such as those described in Service 1985;
Gardner et al. 1999; Wyoming Partners
in Flight 2002; Rich et al. 2004; Riparian
Habitat Joint Venture (RHJV) 2004;
Shuford and Gardali 2008; and Griggs
2009.
Conservation Strategy
In developing our conservation
strategy for determining what areas to
include as critical habitat for the
western yellow-billed cuckoo, we
focused on the western yellow-billed
cuckoo’s breeding habitat. Breeding
habitat includes areas for nesting and
foraging and also provides for dispersal
habitat when breeding or food resources
may not be optimal. Breeding habitat is
widely spread across the species’ range
and typically provides the physical and
biological features essential to the
conservation of the species without
which rangewide resiliency,
redundancy, and representation of the
species could not be achieved. As
explained further below, this focus led
to the inclusion of breeding habitat
within three general habitat settings as
part of the conservation strategy. The
three general settings include: (1) Large
river systems (mainstem rivers and their
tributaries) in the southern and central
portions of New Mexico, Arizona, and
along the California border with Arizona
(generally referred to as the Southwest);
(2) locations within southern Arizona
not associated with major river systems
or their tributaries; and (3) large river
systems outside the Southwest (as
identified in (1) above) that occur in
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different ecological settings that are
being consistently used as breeding
areas by western yellow-billed cuckoo
(such as areas in parts of California,
Utah, Idaho, or Colorado).
As discussed above, the western
yellow-billed cuckoo is a migratory
species that travels long distances to
take advantage of localized food
resource outbreaks or habitat
availability. Maintaining breeding areas
(which include nesting habitat, foraging
habitat, and dispersal habitat)
throughout the range of the western
yellow-billed cuckoo allows for withinyear and year-to-year movements to take
advantage of any spatial and temporal
changes in habitat resources and food
abundance. We consider this necessary
to conserve the species because of the
dynamic nature of habitat used by the
species. Identifying habitat across the
species’ range, but primarily in the
Southwest where the core of the
population breeds: (a) Helps maintain a
robust, well-distributed population and
enhances survival and productivity of
the western yellow-billed cuckoo as a
whole; (b) facilitates interchange of
individuals between units; (c) promotes
recolonization of any sites within the
current range of the species that may
experience declines or local extirpations
due to low productivity or temporary
habitat loss or changes in resource
availability from the core population
areas; and (d) allows for use of areas not
being used as breeding in a given year
as habitat for movement and dispersal.
The western yellow-billed cuckoo
breeding coincides with moist and
humid conditions that support
abundant prey resources occurring in
the temperate zones of the western
United States and northern Mexico
during the late spring and summer.
Breeding areas of the western yellowbilled cuckoo occur primarily in
riparian woodlands along perennial
rivers or intermittent or ephemeral
drainages containing vegetative
structure, canopy cover, and appropriate
environmental conditions. These areas
provide suitable nesting habitat and
adjacent foraging habitat with adequate
food resources on a consistent basis to
successfully produce and fledge young.
In general, the north-south migratory
pathway of the western yellow-billed
cuckoo funnels through northern
Mexico into the American Southwest,
with a significant portion of returning
birds establishing breeding territories
along large river systems (mainstem
rivers and their tributaries) in the
southern and central portions of New
Mexico, Arizona, and along the
California border with Arizona. A
significant proportion of breeding
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western yellow-billed cuckoos also
occurs in large river systems in
northwestern Mexico, primarily in
Sonora and Sinaloa, with smaller
numbers in Chihuahua and Western
Durango, and the tip of Baja California.
While returning western yellow-billed
cuckoos also establish breeding
territories throughout portions of the
western States north of Arizona and
New Mexico, these large southwestern
and Mexican river systems (including
but not limited to the Lower Colorado,
Salt, Virgin, San Pedro, Gila, Verde, and
Rio Grande Rivers) serve as core
breeding habitats for the western
yellow-billed cuckoo as it returns from
wintering grounds in South America.
These core areas together provide a
consistent, robust supply of resources
necessary for the maintenance and
expansion of western yellow-billed
cuckoos into other habitats across the
range. We consider the large river
systems (mainstem rivers and their
tributaries) in the southern and central
portions of New Mexico, Arizona, and
along the California border with Arizona
to be core areas for conservation of the
western yellow-billed cuckoo, and they
constitute the first part of our
conservation strategy in determining its
critical habitat. The core mainstem
rivers and streams along with their
major tributaries and adjacent habitats
contain the physical or biological
features essential for the conservation of
the western yellow-billed cuckoo.
However, these managed large river
systems may not provide sufficient
breeding habitat for the western yellowbilled cuckoo in all years (for example,
in low flow years the amount of
breeding habitat along rivers is
diminished), and unregulated smaller
tributaries supported or influenced by
monsoonal weather patterns may assist
in supporting breeding western yellowbilled cuckoos during low flow or
drought conditions. Thus, the second
part of our conservation strategy
includes areas within southern Arizona
not associated with major river systems
or their tributaries as identified above.
In southern Arizona, western yellowbilled cuckoo also use drier habitats for
breeding sites in the desert, foothill, and
mountain ephemeral drainages of
southern Arizona and northwestern
Mexico (including but not limited to
desert grasslands and scrub, and
Madrean evergreen woodland
drainages). These areas receive moisture
from the seasonal North American
Monsoon weather systems and other
summer tropical storm events. During
the breeding season, these habitats
experience a ‘‘flush’’ of vegetation and
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concurrent insect population eruptions,
especially in the drainages receiving
relatively more moisture than uplands.
A portion of the DPS uses these wetseasonal or monsoonal habitats in
southern Arizona and Mexico for
breeding habitat. Use of these types of
sites by the western yellow-billed
cuckoo provides additional resiliency to
the species due to the different weather
patterns and hydrological regimes that
produce the habitat conditions suitable
for breeding. The availability of these
additional resilient sites in southern
Arizona and northwestern Mexico other
than the large southwestern and
Mexican river systems described above
increases the overall redundancy for the
species. Therefore, the southwestern
monsoon-driven drainages with
sufficient resources for western yellowbilled cuckoo foraging and successful
breeding are essential for the overall
resiliency and redundancy of the DPS
and are therefore essential to allow for
conservation of the western yellowbilled cuckoo across its range.
Finally, while large riverine riparian
systems in the core area of the American
Southwest are fundamentally important
for their ability to contribute to the
resiliency of the western yellow-billed
cuckoo due to the abundance of birds in
these areas, similar systems throughout
the western yellow-billed cuckoo range
are also likely important contributors to
local resiliency and maintaining
distribution of the western yellow-billed
cuckoo across its range. These large
river systems outside the Southwest that
are being consistently used as breeding
areas by western yellow-billed cuckoo
have been identified as the third part of
our conservation strategy for
determining critical habitat. These areas
are located in habitats identified as
being within different ecological
settings, eco-types, or physio-geographic
provinces and provide for additional
redundancy and representation for the
western yellow-billed cuckoo across its
breeding range. The physical and
biological features of large river systems
in differing habitats with sufficient
resources for western yellow-billed
cuckoo foraging and successful breeding
are likely important for contributing to
the western yellow-billed cuckoo’s
overall resiliency, redundancy, and
representation, and are therefore
essential for conservation of the western
yellow-billed cuckoo across its range.
Habitats and environmental settings in
the arid Southwest differ significantly
from those in central California or
higher elevation areas of Utah, Idaho, or
Colorado. By identifying known
breeding habitat of appropriate size
throughout the species’ range, we
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provide habitat where yellow-billed
cuckoos are most likely to thrive and
potentially increase in numbers.
Selection Criteria and Methodology
Used To Determine Critical Habitat
As discussed above, to assist in
determining which areas to identify as
critical habitat for the western yellowbilled cuckoo, we focused our selection
on areas known to have breeding or
suspected breeding. The western
yellow-billed cuckoo is a migratory bird
and travels long distances between its
wintering grounds in Central and South
America to its breeding grounds in
Mexico and the Continental United
States. As a result, the western yellowbilled cuckoo continues to be found in
areas throughout its historical range in
the west, including areas which it may
pass through or stopover during its
travels. Some of the areas it travels
through or stops over at, may include
parks, golf courses, or other areas not
containing the physical or biological
features essential to the conservation of
the species. Other areas, such as
historically occupied breeding areas
also contain the physical or biological
features for the species but are not
occupied for breeding. Currently known
or suspected breeding areas were
selected as critical habitat because they
contain the physical and biological
features essential to the conservation of
the species necessary for western
yellow-billed cuckoos to produce
offspring, have ample foraging habitat,
vegetative structure, environmental
conditions, and prey. By selecting
breeding areas as critical habitat across
the western yellow-billed cuckoo’s
range, we will assist in conserving the
ability of the species to continue to
occupy these areas. Moreover, the
breeding habitat is most likely to be
essential to the conservation of the
species because of the importance of
breeding for survival and recovery of the
species.
For the 2014 proposed rule, we
reviewed information between 1998 and
2014 to determine whether the area was
occupied at the time of listing. For the
2020 revised proposed rule, we
proposed additional units we consider
to have been occupied at the time of
listing using new data received through
the 2017 breeding season. To further
support designation of these units, we
used additional occupancy or nesting
data up until the 2020 breeding season.
We considered an area to be a
breeding area if it was occupied by the
western yellow-billed cuckoo in one of
the following two ways:
• If western yellow-billed cuckoos
were present in the area on one or more
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days between June 1 and September 30
(considered to be the primary breeding
period) in at least two years between
1998 and 2014 (or later as described
above); or
• If western yellow-billed cuckoos
were confirmed to be a pair and nesting
was observed (or there was evidence of
nesting behavior) in at least one year
between 1998 and 2014, regardless of
the time of year. Thus, if the mated pair
and evidence of nesting behavior was
discovered prior to June 1, the area was
considered to be a breeding area.
Evidence of nesting behavior other than
presence of an active nest includes
copulation, food carries (bird does not
eat food) to the same area, stick carries
(nest building), multiple incidents of
alarm calls, fledgling (unable to fly)
with adult, distraction display (dropped
wing), or pair exchanging multiple
‘‘kowlp’’ or alarm calls (not coos) within
100 m (328 ft) of one another (Service
and Reclamation 2019).
In addition to these fundamental
criteria established for breeding areas
across the DPS range, we identified
additional criteria for areas in the
Southwest (Arizona and New Mexico).
This was to take into account the
migratory nature of the species moving
up from Mexico through the Southwest,
either to or from other breeding areas.
The additional criteria is as follows:
• Areas in the Southwest were not
considered to be breeding areas if the
area contains only two western yellowbilled cuckoo records from different
years, one of which was in September
and no pairs were detected. Although
western yellow-billed cuckoos are still
breeding in September in Arizona, a
September detection may or may not
signify breeding due to birds migrating
south or moving between breeding areas
in Mexico.
As described above, to delineate the
units of critical habitat, we first looked
to those areas being used during the
breeding season. We defined what we
considered breeding areas as those areas
that contained seasonal occurrences of
the western yellow-billed cuckoo
between 1998 and 2014, during the
timeframe in which breeding typically
occurs for the species in the United
States (June–September). In limited
instances, this timeframe was expanded
into May if the information available
confirmed breeding activity during this
earlier timeframe. These breeding
season occurrences (location points
where western yellow-billed cuckoos
were detected or breeding activity was
confirmed) were then plotted on maps
along with information on vegetation
cover, topography, and aerial imagery.
We then delineated habitat around that
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location, as well as riparian habitat
(including xeroriparian and associated
nonriparian habitat in the Southwestern
drainages) upstream and downstream
from the occurrence location.
We used survey data and reports
prepared by the USGS, USFS, NPS,
BLM, Reclamation, the Salt River
Project, State wildlife agencies, State
natural diversity data bases, Cornell Lab
of Ornithology (eBird data), researchers,
nongovernment organizations,
universities, and consultants, as well as
available information in our files, to
determine the location of areas used for
breeding within the geographical area
occupied by the western yellow-billed
cuckoo at the time of listing. As stated
above, since 2014, we have become
aware of additional areas occupied by
the species with evidence of breeding.
We still consider these areas to have
been occupied by the species at the time
of listing, based on habitat conditions
and occupancy of nearby areas.
Because of the dynamic aspects of
western yellow-billed cuckoo habitat as
a result of potential flooding, changing
river locations, and land uses, we used
the active floodplain to identify where
riparian habitat occurs. When
delineating the critical habitat
boundary, we included the surrounding
contiguous suitable woodland habitat
(including along the stream course and
in immediate uplands for breeding,
feeding, and sheltering) upstream and
downstream until we identified a major
break in the vegetation. In many
drainages, we included these 0.25 miles
(mi) (0.62 kilometers (km)) or more
breaks in habitat to combine one or
more areas if we determined that: (1)
The gap in vegetation was within minor
variances of this distance; (2) the habitat
on the other side of the gap was a
continuation of similar or better suitable
habitat and included breeding
occupancy as identified above; or (3) the
gap in vegetation was determined to be
a consequence of natural stream
dynamics essential to the continuing
function of the hydrologic processes of
the occupied areas.
By including breaks in habitat and
combining areas, we allow for
regeneration of vegetation in these areas,
which is often more productive and
provides additional food resources for
the species and allows for appropriate
habitat conditions for use when
dispersing to other breeding locations.
Blocks of suitable habitat often contain
openings that can change over time in
dynamic riverine systems. Naturally
occurring gaps in habitat following
flooding and scouring are part of
succession in riparian systems. In time,
trees will regenerate and fill these
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openings. Suitable habitat consists of a
variety of configurations that include
small patches of woodland interspersed
with openings, large expanses of
woodland, narrow woodland, or a
combination of different configurations
within the same drainage at any given
time. Western yellow-billed cuckoos
often nest and forage near the edges and
openings that are part of the matrix of
suitable habitat. Upland woodland
habitat immediately adjacent to river,
stream, or drainages may be composed
of more xeroriparian or nonriparian
trees.
In California, western yellow-billed
cuckoos forage mainly within the
riparian woodland habitat or directly
adjacent uplands when breeding
(Laymon 1980, pp. 6–8; Hughes 2015, p.
12). In New Mexico, foraging activity
has been observed in riparian habitat,
immediately adjacent tree-covered
habitat (including salt cedar) and a
variety of upland habitats including
desert scrub (Sechrist et al. 2009, pp.
24–50). However, based on foraging
behavior in other habitats in the West,
we expect the foraging distance to
remain relatively close to the nesting
habitat. In addition, riparian corridors
along streams, especially in highly
developed areas, can in some instances
be very narrow, highly degraded, and be
characterized as a patchwork of
vegetated and nonvegetated areas.
Whether these habitat areas were
included or combined into a single
larger unit depended on the extent of
use of the areas by western yellowbilled cuckoo, the relative amount of
habitat gained if the multiple patches
were included or combined, the
relationship of the area to the overall
designation, and the ease or complexity
of removing all nonhabitat from the
designation. In addition, by combining
these areas, they then better meet an
appropriate scale of analysis, given the
data as is described in our regulations
for determining critical habitat (50 CFR
424.12(b)(1)). For example, if a break in
habitat occurred between an area with
high occupancy with sufficient habitat
and an area with low occupancy, the
adjacent area may not have been
included. Alternatively, if two smaller
areas with relatively low occupancy
were adjacent to each other, those areas
most likely would have been combined
to form a single, larger, more
manageable area.
To distinguish between the western
yellow-billed cuckoo more typical
breeding habitat in riparian areas
throughout the range from breeding
habitat recently found in more arid
areas of the Southwest, we use the terms
‘‘rangewide breeding habitat’’ and
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‘‘southwestern breeding habitat,’’
respectively (see Space for Individual
and Population Growth and for Normal
Behavior below). In rangewide breeding
habitat, we generally selected lowgradient streams containing the physical
and biological features that were greater
than 200 ac (81 ha)) in size. In
considering the extent of each area, in
some cases we included the entire
streambed as well as the presently
vegetated areas. Streams, especially
those with intermittent flows, migrate
within the streambed depending on
flows and other natural fluvial
processes. The vegetated areas within
the streambed may also move to
coincide with the stream movement. As
a result, the whole area may not be
contiguously vegetated. In these lowgradient rangewide riparian breeding
habitats (i.e., cottonwood, willow), areas
that currently contain less than 200 ac
(81 ha) of riparian habitat outside the
Southwest were not selected. However,
in some areas of the Southwest, the
physical or biological features for areas
used as breeding habitat vary from other
locations in the range of the western
yellow-billed cuckoo. These areas occur
in Arizona and New Mexico and are
associated with summer monsoonal
moisture and are smaller, narrower
habitat areas that may extend into
upland areas (areas dominated by
mesquite and oak) with higher gradient.
Selection of these areas depended on
the amount of use of the area by the
species, the relative proximity to other
selected areas, the ecosystem
uniqueness, or value to distribution of
the area on the landscape. As a result,
these habitat sites were selected on a
case-by-case basis to provide for the
variability of habitat use by the species
in these areas.
We have not included critical habitat
units within Oregon or Washington
because the species has been extirpated
as a breeder from those States since at
least the 1940s (Littlefield 1988, p. 2;
Washington Department of Fish and
Wildlife 2013, pp. 200–201), and recent
observations of the species, although
promising, have not coincided for the
most part with suitable breeding habitat
and appear to be dispersing but not
breeding birds. We also did not include
occupied areas within Montana,
Nevada, and Wyoming. The reasons for
not including critical habitat in these
States is that sufficient areas already
have been identified within this
designation, and these areas do not meet
our conservation strategy for designating
critical habitat. The conservation
strategy focuses on areas with confirmed
breeding. No confirmed breeding has
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20849
been identified in Montana or
Wyoming. In Nevada, the only known
areas where the western yellow-billed
cuckoo has confirmed breeding is in the
southern part of the State near the
borders of California and Arizona. These
habitats are essentially the same as
those identified in the Southwest in
Arizona and New Mexico, but do not
significantly contribute to population
numbers for the western yellow-billed
cuckoo.
Sources of data reviewed or cited for
this species in the development of
critical habitat include peer-reviewed
articles, information maintained by
universities and State agencies, existing
State management plans, speciesspecific reports, habitat information
sources, climate change studies,
incidental detections, and numerous
survey efforts conducted throughout the
species’ range, including but not limited
to the more recent information below:
Corman and Magill 2000; Dockens and
Ashbeck 2011a, 2011b; SRP 2011a,
2011b; Beason 2012; Dettling and Seavy
2012; Gardali et al. 2012; Johnson et al.
2012; McCarthy 2012; McNeil et al.
2012; Sechrist et al. 2012; Greco 2013;
IPCC 2013; Johnson et al. 2013; McNeil
et al. 2013b; Pederson et al. 2013;
Rohwer and Wood 2013; Scribano 2013;
Sechrist et al. 2013; Stromberg et al.
2013; Wallace et al. 2013; American
Birding Association 2014; Ault et al.
2014; Garfin et al. 2014; IPCC 2014;
Melillo et al. 2014; Orr et al. 2014;
Stanek 2014; Villarreal et al. 2014;
Dettling et al. 2015; Griffin 2015;
Hughes 2015; MacFarland and Horst
2015, 2017; Van Dooremolen 2015;
WestLand Resources, Inc. 2015 a,b,c,d,e;
Arizona Game and Fish Department
2018; Corson 2018; Parametrix, Inc., and
Southern Sierra Research Station 2019;
RiversEdge West 2019; Sferra et al.
2019; WestLand Resources, Inc. 2019;
Cornell Lab of Ornithology 2020 (eBird
data); and Drost et al. 2020.
The amount and distribution of
critical habitat that we are designating
will give the western yellow-billed
cuckoo the opportunity to potentially:
(1) Maintain its existing distribution; (2)
move between areas depending on food,
resource, and habitat availability; (3)
increase the size of the population to a
level where it can withstand potentially
negative genetic or demographic
impacts; and (4) maintain its ability to
withstand local- or unit-level
environmental fluctuations or
catastrophes.
When determining critical habitat
boundaries, we made every effort to
avoid including developed areas such as
lands covered by buildings, pavement,
and other structures or lands used as
E:\FR\FM\21APR2.SGM
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occupied at the time of listing and are
considered to still be occupied and that
contain one or more of the physical or
biological features that are essential to
support life-history processes of the
species. This variability is due to
environmental conditions and the
dynamic nature of the habitat used by
the western yellow-billed cuckoo (see
Species Information).
The critical habitat designation is
defined by the map or maps, as
modified by any accompanying
regulatory text, presented at the end of
this document under Regulation
Promulgation. We include more detailed
information on the boundaries of the
critical habitat designation in the
preamble of this document. We will
make the coordinates or plot points or
both on which each map is based
available to the public on https://
parks or for agriculture, because such
lands lack physical or biological
features necessary for the western
yellow-billed cuckoo. The scale of the
maps we prepared under the parameters
for publication within the Code of
Federal Regulations may not reflect the
exclusion of such developed lands. Any
such lands inadvertently left inside
critical habitat boundaries shown on the
maps of this rule have been excluded by
text in the rule and are not designated
as critical habitat. Therefore, a Federal
action involving these lands will not
trigger section 7 consultation with
respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the physical or biological features in the
adjacent critical habitat.
We are designating as critical habitat
areas that we have determined are
www.regulations.gov at Docket No.
FWS–R8–ES–2013–0011 and on our
website at https://www.fws.gov/
sacramento.
Final Critical Habitat Designation
We are designating 63 units as critical
habitat for the western yellow-billed
cuckoo. The critical habitat areas we
describe below constitute our current
best assessment of areas that meet the
definition of critical habitat for the
western yellow-billed cuckoo. The areas
we are designating as critical habitat are
located in Arizona, California, Colorado,
Idaho, New Mexico, Texas, and Utah
and are described below. Table 1 shows
the critical habitat units and the
approximate area of each unit. Land
areas identified as ‘‘Other’’ include
county, city, unclassified, or unknown
land ownerships.
TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO
[Area estimates reflect all land within critical habitat unit boundaries]
Federal
Unit name
AC
khammond on DSKJM1Z7X2PROD with RULES2
State
Tribal
Other
Total
Unit
HA
AC
HA
AC
HA
AC
HA
AC
HA
CA–AZ 1
Colorado River 1 .......................
1
Excluded under section 4(b)(2) of the Act
0
0
CA–AZ 2
Colorado River 2 .......................
2
Excluded under section 4(b)(2) of the Act
0
0
AZ 1
Bill Williams River ............................
3
Excluded under section 4(b)(2) of the Act
0
0
AZ 2
Alamo Lake ......................................
4
Excluded under section 4(b)(2) of the Act
0
0
AZ 3
Hassayampa River ..........................
5
12
5
..............
..............
..............
..............
896
363
908
367
AZ 4
Agua Fria River ................................
6
1,802
729
235
95
..............
..............
1,300
526
3,336
1,350
AZ 5
Upper Verde Creek ..........................
7
2,367
958
546
221
..............
..............
2,275
921
5,188
2,100
AZ 6
Oak Creek ........................................
8
596
241
160
65
..............
..............
1,475
597
2,231
903
AZ 7
Beaver Creek ...................................
9
1,335
540
..............
..............
..............
..............
747
302
2,081
842
AZ 8
Lower Verde/West Clear Ck ............
10
638
258
30
12
..............
..............
1,466
593
2,134
864
AZ 9A
Horseshoe Dam ............................
11
2,667
1,079
..............
..............
..............
..............
..............
..............
2,667
1,079
AZ 9B
Horseshoe Dam ............................
11
694
281
..............
..............
..............
..............
88
55
782
316
AZ 10
Tonto Creek ...................................
12
2,045
828
..............
..............
..............
..............
1,135
459
3,181
1,287
AZ 11
Pinal Creek ....................................
13
0
0
AZ 12
Bonita Creek ..................................
14
828
335
..............
..............
..............
..............
101
41
928
375
AZ 13
San Francisco River ......................
15
1,192
482
..............
..............
..............
..............
135
55
1,327
537
AZ 14
Upper San Pedro River .................
16
17,957
7,267
1,903
770
..............
..............
11,199
4,532
31,059
12,569
AZ 15
Lower San Pedro/Gila River ..........
17
2,695
1,091
2,280
922
..............
..............
17,421
7,050
22,397
9,064
AZ 16
Sonoita Creek ................................
18
..............
..............
926
375
..............
..............
1,563
633
2,488
1,007
AZ 17
Upper Cienega Creek ....................
19
4,630
1,874
574
232
..............
..............
..............
..............
5,204
2,106
AZ 18
Santa Cruz River ...........................
20
505
204
4
2
..............
..............
9,029
3,654
9,538
3,860
AZ 19
Black Draw .....................................
21
891
360
134
54
..............
..............
570
231
1,595
646
AZ 20
Gila River 1 ....................................
22
778
315
215
87
..............
..............
9,547
3,863
10,540
4,266
AZ 21
Salt River .......................................
23
502
203
..............
..............
..............
..............
79
32
581
235
AZ 22
Lower Cienega Creek ....................
24
..............
..............
759
307
..............
..............
1,601
648
2,360
955
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TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued
[Area estimates reflect all land within critical habitat unit boundaries]
Federal
Unit name
AC
Tribal
Other
Total
HA
AC
HA
AC
HA
AC
HA
AC
HA
AZ 23
Blue River ......................................
25
1,025
415
..............
..............
..............
..............
..............
..............
1,025
415
AZ 24
Pinto Creek South .........................
26
368
149
..............
..............
..............
..............
5
2
373
151
AZ 25
Aravaipa Creek ..............................
27
622
252
116
47
..............
..............
2,199
890
2,937
1,189
AZ 26
Gila River 2 ....................................
28
1,895
767
204
83
..............
..............
3,736
1,512
5,836
2,362
AZ 27
Pinto Creek North ..........................
29
415
168
..............
..............
..............
..............
12
5
427
173
AZ 28
Mineral Creek ................................
30
1
<1
198
80
..............
..............
180
73
380
154
AZ 29
Big Sandy River .............................
31
1,291
522
..............
..............
..............
..............
2,945
1,192
4,236
1,714
NM 1
San Francisco River .......................
32
738
299
10
4
..............
..............
1,291
522
2,039
825
NM 2
Gila River ........................................
33
974
394
194
78
..............
..............
1,867
756
3,036
1,228
NM 3A
Mimbres River ..............................
34
..............
..............
..............
..............
..............
..............
260
105
260
105
NM 3B
Mimbres River ..............................
34
..............
..............
..............
..............
..............
..............
284
115
284
115
NM 4
Upper Rio Grande 1 .......................
35
..............
..............
..............
..............
..............
..............
518
210
518
210
NM 5
Upper Rio Grande 2 .......................
36
Excluded under section 4(b)(2) of the Act
0
0
NM 6A
Middle Rio Grande .......................
37
Excluded under section 4(b)(2) of the Act
0
0
NM 6B
Middle Rio Grande .......................
37
8,651
3,501
13,064
5,287
..............
..............
24,879
10,068
46,595
18,856
Upper Gila River .............................
38
1,086
439
188
76
..............
..............
3,453
1,397
4,727
1,913
NM 8A
Caballo Delta North ......................
39
Excluded under section 4(b)(2) of the Act
0
0
NM 8B
Caballo Delta South .....................
39
Excluded under section 4(b)(2) of the Act
0
0
NM 9
Animas ............................................
40
Excluded under section 4(b)(2) of the Act
0
0
NM 10
Selden Cyn/Radium Springs ........
41
Excluded under section 4(b)(2) of the Act
0
0
AZ 30
Arivaca Wash/San Luis .................
42
4,662
1,887
89
36
..............
..............
1,014
410
5,765
2,333
AZ 31
Florida Wash ..................................
43
449
182
255
103
..............
..............
43
17
747
302
AZ 32
California Gulch .............................
44
376
152
..............
..............
..............
..............
181
73
558
226
AZ 33
Sycamore Canyon .........................
45
601
243
..............
..............
..............
..............
..............
..............
601
243
AZ 34
Madera Canyon .............................
46
1,419
574
..............
..............
..............
..............
313
127
1,732
701
AZ 35
Montosa Canyon ............................
47
496
201
..............
..............
..............
..............
3
1
499
202
AZ 36
Patagonia Mountains .....................
48
1,059
429
8
3
..............
..............
845
342
1,912
774
AZ 37
Canelo Hills ....................................
49
1,381
559
1
<1
..............
..............
1,440
583
2,822
1,142
AZ 38
Arivaca Lake ..................................
50
567
229
417
169
..............
..............
381
154
1,365
553
AZ 39
Peppersauce Canyon ....................
51
317
128
..............
..............
..............
..............
32
13
349
141
AZ 40
Pena Blanca Canyon .....................
52
483
195
..............
..............
..............
..............
..............
..............
483
195
AZ 41
Box Canyon ...................................
53
317
128
184
74
..............
..............
34
14
536
217
AZ 42
Rock Corral Canyon ......................
54
190
77
25
10
..............
..............
..............
..............
214
87
AZ 43
Lyle Canyon ...................................
55
716
290
..............
..............
..............
..............
577
234
1,293
523
AZ 44
Parker Canyon Lake ......................
56
1,424
576
..............
..............
..............
..............
75
30
1,499
607
AZ 45
Barrel Canyon ................................
57
755
306
..............
..............
..............
..............
164
66
920
372
AZ 46
Gardner Canyon ............................
58
4,320
1,748
290
117
..............
..............
471
191
5,081
2,056
AZ 47
Brown Canyon ...............................
59
726
294
228
92
..............
..............
159
64
1,113
451
AZ 48
Sycamore Canyon/Patagonia ........
60
604
245
..............
..............
..............
..............
..............
..............
604
245
AZ 49
Washington Gulch .........................
61
361
146
..............
..............
..............
..............
222
90
585
237
NM 7
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State
Unit
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TABLE 1—CRITICAL HABITAT UNITS FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued
[Area estimates reflect all land within critical habitat unit boundaries]
Federal
Unit name
State
Tribal
Other
Total
Unit
AC
HA
AC
HA
AC
HA
AC
HA
AC
HA
AZ 50
Paymaster Spring/Mowry ...............
62
390
158
..............
..............
..............
..............
512
207
903
365
CA 1
Sacramento River ............................
63
2,123
859
485
196
..............
..............
31,593
12,785
34,201
13,841
CA 2
South Fork Kern River ....................
64
85
34
419
170
..............
..............
1,875
756
2,379
963
ID 1
Snake River 1 ...................................
65
2,863
1,158
1,209
489
..............
..............
1,551
628
5,623
2,276
ID 2
Snake River 2 ...................................
66
5,862
2,372
1,940
785
..............
..............
3,641
1,473
11,442
4,630
ID 3
Henry’s Fork/Teton Rivers ................
67
756
306
511
207
..............
..............
3,374
1,365
4,641
1,878
CO 1
Colorado River ................................
68
196
79
174
70
..............
..............
2,766
1,119
3,137
1,269
CO 2
North Fork Gunnison ......................
69
115
47
..............
..............
..............
..............
2,211
895
2,326
941
UT 1
Green River 1 ..................................
70
4,700
1,902
4,162
1,684
..............
..............
4,411
1,785
13,273
5,371
UT 2
Green River 2 ..................................
71
40
16
632
256
..............
..............
462
187
1,135
459
TX 1
Terlingue Creek/Rio Grande ............
72
7,792
3,153
..............
..............
..............
..............
121
49
7,913
3,202
Totals ...................................................
..............
105,345
42,630
32,769
13,259
0
0
160,726
65,040
298,845
120,939
Note: Area sizes may not sum due to rounding. ‘‘Other’’ refers to local, county, unknown, or unclassified ownership.
We present brief descriptions of all
units, and reasons why they meet the
definition of critical habitat for western
yellow-billed cuckoo, below. We also
provide information on special
management considerations or
protection that may be required for the
physical or biological features essential
to the conservation of the species within
each of those units. The special
management considerations include
actions to address the main threats to
western yellow-billed cuckoo habitat
and are grouped into three categories:
(1) Threats from alteration of hydrology;
(2) threats from floodplain
encroachment; and (3) other identified
threats. These threats and special
management considerations are
summarized in Table 2. See end of table
for definition of codes.
khammond on DSKJM1Z7X2PROD with RULES2
TABLE 2—THREATS TO HABITAT AND POTENTIAL SPECIAL MANAGEMENT CONSIDERATIONS FOR CRITICAL HABITAT UNITS
DESIGNATED FOR THE WESTERN YELLOW-BILLED CUCKOO
Threats from alteration
of hydrology
Unit
Name of unit
1 ...............
2 ...............
3 ...............
4 ...............
5 ...............
6 ...............
7 ...............
8 ...............
9 ...............
10 .............
CA/AZ–1 Colorado River 1 .........
CA/AZ–2 Colorado River 2 .........
AZ–1 Bill Williams River .............
AZ–2 Alamo Lake .......................
AZ–3 Hassayampa River ............
AZ–4 Agua Fria River .................
AZ–5 Upper Verde River ............
AZ–6 Oak Creek .........................
AZ–7 Beaver Creek ....................
AZ–8 Lower Verde R./West
Clear Creek.
AZ–9A Horseshoe Dam ..............
AZ–9B Horseshoe Dam ..............
AZ–10 Tonto Creek ....................
AZ–11 Pinal Creek .....................
AZ–12 Bonita Creek ...................
AZ–13 San Francisco River .......
AZ–14 Upper San Pedro River ..
AZ–15 Lower San Pedro and
Gila Rivers.
AZ–16 Sonoita Creek .................
AZ–17 Upper Cienega Creek .....
AZ–18 Santa Cruz River ............
AZ–19 Black Draw ......................
AZ–20 Gila River 1 .....................
AZ–21 Salt River ........................
AZ–22 Lower Cienega Creek .....
AZ–23 Blue River .......................
AZ–24 Pinto Creek South ...........
AZ–25 Aravaipa Creek ...............
AZ–26 Gila River 2 .....................
11
11
12
13
14
15
16
17
.............
.............
.............
.............
.............
.............
.............
.............
18
19
20
21
22
23
24
25
26
27
28
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
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Threats from floodplain
encroachment
Other threats
Special mgt.
A,
A,
A,
B,
B,
A,
B,
B,
B,
A,
B, C ...........................
B, C ...........................
B, C ...........................
C, D ...........................
C ................................
B, C ...........................
C ................................
C ................................
C ................................
B, C ...........................
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
........................................
F .....................................
E, F, G, H, I, J ...............
F, G, I .............................
F, G, I .............................
F, G, I .............................
F, G, I .............................
F, G, I .............................
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
L, M, N, P ..................
L, M, N, P ..................
M, N, P ......................
M, N, P, Q .................
L, M, N, P ..................
L, M, N, P ..................
M, N, P ......................
M, N, P, Q .................
M, N, P ......................
M, N, P ......................
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
S,
S,
T.
S,
S,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
T.
T.
A,
A,
B,
B,
B,
B,
B,
A,
B, C, D ......................
B, C, D ......................
C, D ...........................
C ................................
C ................................
C ................................
C ................................
B, C ...........................
I ......................................
I ......................................
F, G, I .............................
F, G, I, J .........................
F, I ..................................
F, I ..................................
E, F, G, I ........................
E, F, G, H, I ...................
K,
K,
K,
K,
K,
K,
K,
K,
M, N, P, Q .................
M, N, P, Q .................
M, N, P, Q .................
L, M, N, P ..................
M, N, P, Q .................
M, N, P ......................
L, M, N, P, Q .............
L, M, N, P ..................
R,
R,
R,
R,
R,
R,
R,
R,
S,
S,
S,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
T.
T.
T.
B,
B,
B,
B,
A,
A,
B,
A,
A,
B,
A,
C, D ...........................
C ................................
C ................................
C ................................
B, C ...........................
B, C, D ......................
C ................................
B, C ...........................
B, C ...........................
C ................................
B, C ...........................
F, G, I .............................
F, G, I .............................
E, F, G, H, I ...................
F .....................................
E, F, G, H ......................
F, G, I .............................
E, F, G, I, J ....................
G, I, J .............................
F, G, I, J .........................
E, F, I, J .........................
F, G, I, J .........................
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
M, N, P, Q .................
M, N, O, P, Q ............
L, M, N, P ..................
M, N, P ......................
L, M, N, P ..................
M, N, P ......................
L, M, N, O, P .............
M, N, P ......................
N, P ...........................
M, N, P ......................
N, P ...........................
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
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T.
20853
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations
TABLE 2—THREATS TO HABITAT AND POTENTIAL SPECIAL MANAGEMENT CONSIDERATIONS FOR CRITICAL HABITAT UNITS
DESIGNATED FOR THE WESTERN YELLOW-BILLED CUCKOO—Continued
Unit
29
30
31
32
33
34
34
35
36
37
37
38
39
39
40
41
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
khammond on DSKJM1Z7X2PROD with RULES2
42 .............
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
68
69
70
71
72
.............
.............
.............
.............
.............
Threats from alteration
of hydrology
Name of unit
AZ–27 Pinto Creek North ...........
AZ–28 Mineral Creek ..................
AZ–29 Big Sandy River ..............
NM–1 San Francisco River ........
NM–2 Gila River .........................
NM–3A Mimbres River ...............
NM–3B Mimbres River ...............
NM–4 Upper Rio Grande 1 ........
NM–5 Upper Rio Grande 2 ........
NM–6A Middle Rio Grande ........
NM–6B Middle Rio Grande ........
NM–7 Upper Gila River ..............
NM–8A Caballo Delta North .......
NM–8B Caballo Delta South ......
NM–9 Animas .............................
NM–10 Selden Canyon and Radium Springs.
AZ–30 Arivaca Wash and San
Luis Wash.
AZ–31 Florida Wash ...................
AZ–32 California Gulch ..............
AZ–33 Sycamore Canyon ..........
AZ–34 Madera Canyon ..............
AZ–35 Montosa Canyon .............
AZ–36 Patagonia Mountains ......
AZ–37 Canelo Hills .....................
AZ–38 Arivaca Lake ...................
AZ–39 Peppersauce Canyon .....
AZ–40 Pena Blanca Canyon ......
AZ–41 Box Canyon ....................
AZ–42 Rock Corral Canyon .......
AZ–43 Lyle Canyon ....................
AZ–44 Parker Canyon Lake .......
AZ–45 Barrel Canyon .................
AZ–46 Gardner Canyon .............
AZ–47 Brown Canyon ................
AZ–48 Sycamore Canyon ..........
AZ–49 Washington Gulch ...........
AZ–50 Paymaster Spring ...........
CA–1 Sacramento River .............
CA–2 South Fork Kern River ......
ID–1 Snake River 1 ....................
ID–2 Snake River 2 ....................
ID–3 Henry’s Fork and Teton
Rivers.
CO–1 Colorado River .................
CO–2 North Fork Gunnison R. ...
UT–1 Green River 1 ...................
UT–2 Green River 2 ...................
TX–2 Terlingua Creek and Rio
Grande.
Threats from floodplain
encroachment
Other threats
C ................................
C ................................
C ................................
C ................................
C ................................
C ................................
C ................................
B, C ...........................
B, C ...........................
B, C, D ......................
B, C, D ......................
C ................................
B, C, D ......................
B, C, D ......................
C ................................
B, C ...........................
F, I, J ..............................
E, F ................................
E, F, G, I, .......................
E, F, G, H, I ...................
E, F, G, I, J ....................
F, I ..................................
F, I ..................................
E, F, G, H, I ...................
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
E, F, G, I, J ....................
E, F, G, I ........................
E, F, G, I ........................
F .....................................
E, F, G, H, I ...................
K, N, P ...........................
K, O, P, Q ......................
K, L, N, P, Q ..................
K, L, M, N ......................
K, L, M, N ......................
K, M, N ...........................
K, M, N ...........................
K, L, M, N ......................
K, L, M, N ......................
K, L, M, N ......................
K, L, M, N ......................
K, L, M, N ......................
K, L, M, N, O, P, Q ........
K, L, M, N, O, P, Q ........
O, P ................................
L, M, N, O, P, Q ............
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
T.
R,
B, C ................................
F, I ..................................
K, M, N, P ......................
R, S, T.
B,
B,
A,
B,
B,
B,
B,
A,
B,
B,
B,
B,
B,
A,
A,
B,
B,
B,
B,
B,
A,
A,
A,
A,
A,
C ................................
C ................................
B, C ...........................
C ................................
C ................................
C ................................
C ................................
B, C ...........................
C ................................
C ................................
C ................................
C ................................
C ................................
B, C ...........................
B, C ...........................
C ................................
C ................................
C ................................
C ................................
C ................................
B, C ...........................
B, C, D ......................
B, C, D ......................
B, C ...........................
B, C ...........................
E, F, G, I, J ....................
F, G, I .............................
F, G, I .............................
F, G, I .............................
F, I ..................................
F, G, I .............................
F, G, I .............................
F, G, I, J .........................
F, G, I .............................
F, I ..................................
F, G, I .............................
F, I ..................................
F, I ..................................
F, G, I .............................
F, G, I .............................
I ......................................
F, I ..................................
F, I ..................................
F, I ..................................
F, I ..................................
E, F, G, H, I, J ...............
E, F, G, H, I ...................
E, F, G, H, I ...................
E, F, G, H, I ...................
E, F, G, H, I ...................
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
K,
M, N, P ......................
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
O, P, Q ......................
M, N, O, P, Q ............
M, N, O, P, Q ............
M, N, O, P, Q ............
L, M, N ......................
L, M, N ......................
L, M, N ......................
L, M, N ......................
L, M, N ......................
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
R,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
A,
B,
A,
A,
A,
B, C ...........................
C ................................
B, C ...........................
B, C ...........................
B, C ...........................
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
E, F, G, H, I, J ...............
........................................
K,
K,
K,
K,
K,
L, M, N ......................
L, M, N ......................
L, M, N ......................
L, M, N ......................
M, N ...........................
R,
R,
R,
R,
R,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
B,
B,
B,
B,
B,
B,
B,
A,
A,
A,
A,
B,
A,
A,
B,
A,
Definition of Codes
Threats from alteration of hydrology:
(A) Change in hydrology from upstream dams;
(B) surface water diversions;
(C) groundwater extraction; and
(D) fluctuating reservoir levels.
Threats from floodplain encroachment:
(E) Agricultural activities;
(F) other development (residential, commercial, etc.);
(G) bank stabilization;
(H) levee construction and maintenance;
(I) road and bridge construction and maintenance; and
(J) gravel mining.
Other threats:
(K) Overgrazing (grazing activities that reduce quality and quantity of breeding habitat);
(L) pesticide drift;
(M) woodcutting;
(N) recreational activities (unauthorized off-highway-vehicle use);
(O) on- or offsite mining (other than gravel mining);
(P) impacts from human-caused wildfires;
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Special mgt.
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
S,
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
T.
S, T.
20854
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations
(Q) disturbance from human foot traffic, vehicular traffic, and associated noise.
Special management considerations:
(R) Manage hydrology to mimic natural flows and floodplain/drainage processes;
(S) prevent encroachment into floodplain/drainage; and
(T) control expansion of nonnative vegetation where control benefits native vegetation (the positive and negative impacts of nonnative vegetation removal should be carefully evaluated if such vegetation is a component of existing habitat (i.e., tamarisk) in areas of altered hydrology).
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It should be noted that the effects of
climate change may influence
streamflow, groundwater, wildfire,
nonnative vegetation and other aspects
of western yellow-billed cuckoo habitat
within the proposed critical habitat.
Because climate change is not a single
threat but a condition that influences
other impacts to habitat, we did not
identify climate change as a single
threat component.
Unit Descriptions
Below we present brief descriptions of
the units, their extent, and why the
physical or biological features may
require special management or
protection. For readers interested in the
underlying information and data
supporting these unit descriptions,
including units being excluded (e.g.,
cited literature, permit reports, and
other survey efforts), these will be
included in the supporting materials
posted on https://www.regulations.gov at
Docket No. FWS–R8–ES–2013–0011.
Unit 1: CA/AZ–1 Colorado River 1;
Imperial, Riverside, and San Bernardino
Counties, California, and Yuma and La
Paz Counties, Arizona.
Critical habitat Unit CA/AZ–1 was
proposed as containing 82,138 ac
(33,240 ha) including a 150-mi (242-km)
stretch of the Colorado River in Arizona
and California. We have excluded the
entire unit from the final designation
(see Exclusions). A description and map
of this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 2: CA/AZ–2 Colorado River 2;
San Bernardino County, California and
Mohave County, Arizona.
Critical habitat unit CA/AZ–2 is
23,589 ac (9,546 ha) in extent. It is a 23mi (37-km)-long continuous segment of
the Colorado River between the
Interstate 40 Bridge, including Topock
Marsh in San Bernardino County,
California, and upstream to the ArizonaNevada border in Mohave County,
Arizona. We have excluded the entire
unit from the final critical habitat
designation (see Exclusions). A
description and map of this unit is
maintained in supporting information
for this designation (Service 2020b,
entire).
Unit 3: AZ–1 Bill Williams; Mohave
and La Paz Counties, Arizona.
Critical habitat unit AZ–1 is 3,389 ac
(1,371 ha) in extent and is a continuous
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segment of the Bill Williams River, a
tributary to the Colorado River, from the
upstream end of Lake Havasu upstream
to Castaneda Wash in Mohave and La
Paz Counties, Arizona. We have
excluded the entire unit from the final
critical habitat designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 4: AZ–2 Alamo Lake; Mohave
and La Paz Counties, Arizona.
Critical habitat unit AZ–2 totals 2,793
ac (1,130 ha) in extent and is a
continuous stream made up of a 6-mi
(10-km)-long continuous segment of the
Santa Maria River and a 3-mi (5-km)long continuous segment of the Big
Sandy River that feeds into the Santa
Maria River above Alamo Lake State
Park in Mohave and La Paz Counties,
Arizona. We have excluded the entire
Unit from the final critical habitat
designation (see Exclusions). A
description of this unit is maintained in
supporting information for this
designation (Service 2020b, entire).
Unit 5: AZ–3 Hassayampa River;
Maricopa County, Arizona.
Critical habitat unit AZ–3 is 908 ac
(367 ha) in extent and is an
approximately 7-mi (11-km)-long
continuous segment of the Hassayampa
River in the vicinity of Wickenburg in
Maricopa County, Arizona.
Approximately 12 ac (5 ha) is in Federal
ownership, and 896 ac (363 ha) is in
other ownership. This unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and nest at this site
annually during the breeding season
(Corman and Magill 2000, pp. 42–43;
Kondrat-Smith 2015–2016, entire;
Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c). This unit is part
of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos.
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Much of the private land in this
revised proposed unit is within The
Nature Conservancy’s (TNC) and
Maricopa County Parks and Recreation
Department’s Hassayampa River
Preserve, which is occupied by yellowbilled cuckoos during the breeding
season. Preserve management requires
management of cottonwood and willow
habitat to control nonnative species and
maintenance of fencing to prevent
trespass livestock from damaging habitat
(Maricopa County Parks and Recreation
Department 2018, pp. 8, 10). Western
yellow-billed cuckoos occupy and nest
at this site during the breeding season
annually Habitat is gallery woodland
with cottonwood, willow, and mesquite
(Kondrat-Smith 2015, entire). Very little
tamarisk is present in much of the site
because the river scours out frequently,
preventing tamarisk from becoming
established.
Unit 6: AZ–4, Agua Fria River;
Yavapai County, Arizona.
Critical habitat unit AZ–4 is 3,336 ac
(1,350 ha) in extent and is made up of
a continuous segment of the Agua Fria
River (called Ash Creek above the
confluence with Sycamore Creek),
which is joined by the Sycamore Creek
tributary. Other portions of tributaries
that are part of this unit include Silver
Creek, Indian Creek, and Little Ash
Creek. Together they form a continuous
unit located approximately 2.5 mi (4.0
km) east of Cordes Lakes in Yavapai
County, Arizona. Approximately 1,802
ac (729 ha) is in Federal ownership; 235
ac (95 ha) is in State ownership; and
1,300 ac (526 ha) is in other ownership.
This unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
at this site annually during the breeding
season (Corman and Magill 2000, pp.
37, 40, 47; Prager and Wise 2013, 2014,
2015, 2016, 2017, 2018, 2019, entire).
This unit is part of the core area as
identified in our conservation strategy
for designating critical habitat for the
western yellow-billed cuckoo. BLM
management to reduce off-road vehicle
and grazing pressure has resulted in
gradual improvement to riparian habitat
on its Agua Fria National Monument
(Prager and Wise 2019, pp. 2–4).
Periodic floods on the Agua Fria River
scour brushy understory and encourage
recruitment of cottonwood and willows.
Other species include sycamore, ash,
walnut, mesquite, acacia, juniper,
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tamarisk, and adjacent mesquite bosque.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides
migration stop-over habitat for western
yellow-billed cuckoos moving farther
north. Altered hydrology has caused the
introduction and spread of nonnative
tamarisk, resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained.
Unit 7: AZ–5, Upper Verde River;
Yavapai County, Arizona.
Critical habitat unit AZ–5 is 5,188 ac
(2,100 ha) in extent. We have excluded
approximately 272 ac (110 ha) of State
land associated with the AGFD’s Upper
Verde River Wildlife Area and 191 ac
(77 ha) of Yavapai-Apache tribal land
from this unit (see Exclusions). This
unit extends from approximately 0.6 mi
(0.9 km) east of State Route 89 to I–17
in Yavapai County. Short reaches of
Granite Creek, Peck’s Lake and Tavasci
Marsh, and Sycamore Creek are also
included in this unit. Approximately
2,367 ac (958 ha) is in Federal
ownership; 546 ac (221 ha) is in State
ownership; and 2,275 ac (921 ha) is in
other ownership. This unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and nest at numerous
locations throughout this unit (Holmes
et al. 2008, pp. 13, 16, 18–20; Johnson
and Rakestraw 2016, pp. 6–7; AGFD
2017, entire; AGFD 2019, entire; Jacobs
Engineering 2019, pp. 2–9; Prescott
National Forest, 2019, entire; SRP
2019c, entire; Cornell Lab of
Ornithology 2020 (eBird data); National
Audubon Society 2020f; Service 2020c,
entire). This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. This site also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos.
Habitat is primarily cottonwood and
willow gallery riparian forest, and may
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contain other species such as ash,
sycamore, mesquite, boxelder, walnut,
juniper, alder, desert willow, hackberry,
tamarisk, and Russian olive, often with
adjacent mesquite woodland (Agyagos
2016, entire, Prescott National Forest
2019, entire). The Upper Verde State
Wildlife and Tuzigoot and IBAs lie
within this unit (National Audubon
Society 2016b, entire; 2020a, entire;
Arizona Important Bird Areas (IBA)
2020c, entire).
Unit 8: AZ–6 Oak Creek; Yavapai and
Coconino Counties, Arizona.
Critical habitat unit AZ–6 is 2,231 ac
(903 ha) and is a continuous segment of
Oak Creek from the State Highway 179
Bridge within the City of Sedona in
Coconino County, Arizona, downstream
to the confluence with the Verde River
in Yavapai County, Arizona.
Approximately 596 ac (241 ha), is in
Federal ownership; 160 ac (65 ha) is in
State ownership; and 1,475 ac (597 ha)
is in other ownership. This unit is
considered to have been occupied at the
time of listing and is occupied by
western yellow-billed cuckoos during
the breeding season (Corman and Magill
2000, p. 42; Holmes et al. 2008, pp. 13,
16, 18–20; Agyagos 2016, entire, AGFD
2018, entire; Cornell Lab of Ornithology
2020 (eBird data); Service 2020c). This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos.
This unit contains the Lower Oak
Creek Important Bird Area (IBA), where
western yellow-billed cuckoos are
identified as a breeding bird (National
Audubon Society 2016a, entire).
Vegetation is a mix of riparian gallery of
cottonwood, willow, sycamore, and
mesquite and hackberry woodland
(National Audubon Society 2016a,
entire). The reach from Cornville to the
confluence with the Verde River
contains the best broad-valley
floodplain and mesquite bosque habitat
on Oak Creek (Agyagos 2016, entire).
The Oak Creek confluence with the
Verde River consists of an
approximately 98-ft (30-m)-wide
riparian area, with mesquite habitat
adjacent to the riparian vegetation
(Johnson and Rakestraw 2016, p. 6).
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Sycamore and boxelder are the
dominant trees at the confluence, with
scattered cottonwood and some willow
and tamarisk trees.
Unit 9: AZ–7 Beaver Creek; Yavapai
County, Arizona.
Critical habitat unit AZ–7 is 2,081 ac
(842 ha) in extent and is a 23-mi (37km)-long continuous segment of Beaver
Creek from the confluence with the
Verde River near Camp Verde upstream
to above the Town of Rimrock in
Yavapai County, Arizona. We have
excluded approximately 1 ac (<1 ha) of
land from this unit (see Exclusions).
Approximately 1,335 ac (540 ha) is
Federal land; and 746 ac (302 ha) is in
other ownership. The unit is considered
to have been occupied at the time of
listing. Western yellow-billed cuckoo
occupy and nest in this unit during the
breeding season (Corman and Magill
2000, pp. 11, 37–41; Holmes et al. 2008,
pp. 13, 16, 18–20; Cornell Lab of
Ornithology 2020 (eBird data); Service
2020c, entire). This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. In a larger study
of the Verde River watershed that
included 13 survey locations within the
Beaver Creek critical habitat complex,
Holmes et al. (2008, pp. 13, 16, 27)
found yellow-billed cuckoos occupy
sites that contain relatively large areas
of deciduous riparian habitat, at least
100 m (328 ft) wide, with dominant tree
species comprising mainly of
cottonwood, willow, alder, and
sycamore and with adjacent patches of
mesquite greater than 12 ac (5 ha) in
size. Habitat at occupied survey
locations within this unit is native
(Holmes et al. 2008, p. 23). The site also
provides migratory stop-over habitat for
western yellow-billed cuckoos moving
farther north.
Unit 10: AZ–8 Lower Verde River and
West Clear Creek; Yavapai County,
Arizona.
Unit AZ–8 is 2,134 ac (864 ha) in
extent and is a 17-mi (27-km) long
continuous segment of the Verde River
extending from the I–17 Verde River
Bridges downstream to Beasley Flat,
Prescott National Forest, and includes 5
mi (8 km) of the West Clear Creek
tributary. We have excluded
approximately 44 ac (18 ha) of YavapaiApache Nation land from this unit (see
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Exclusions). After exclusion,
approximately 638 ac (258 ha) is in
Federal ownership; 30 ac (12 ha) is in
State ownership; and 1,466 ac (593 ha)
is in other ownership. Mitigation
conservation property along the Verde
River that supports nesting western
yellow-billed cuckoos was not
considered for exclusion. The unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and breed in this unit
during the breeding season (Corman and
Magill 2000, pp. 38, 45–46, 48; Holmes
et al. 2008, pp. 13, 16, 27; Prescott
National Forest 2019, entire; AGFD
2018, entire; SRP 2019c, entire; Cornell
Lab of Ornithology 2020 (eBird); Service
2020c). This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
This unit is part of the Lower Verde
River IBA (Arizona IBA 2020b, entire;
National Audubon Society 2020a,
entire). The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. This unit also provides a
movement corridor as well as migratory
stop-over habitat for western yellowbilled cuckoos.
A number of NGO organizations,
including Friends of Verde River
Greenway and The Nature Conservancy,
are working on efforts to restore and
maintain an appropriate level of base
flows in the Verde River to sustain
ecological functions (Arizona IBA
2020b, entire). Dominant vegetation is
cottonwood and willow with lesser
amounts of sycamore, ash, and tamarisk
(Prescott National Forest 2019, entire).
Mesquite bosque flanks parts of the
riparian forest. Altered hydrology has
caused the introduction and spread of
nonnative tamarisk, resulting in reduced
quality of riparian habitat. Although
tamarisk is not as desirable as native
habitat, it may contribute toward habitat
suitability in areas where the native tree
density can no longer be sustained.
Unit 11: AZ–9A and AZ–9B
Horseshoe Dam; Gila, Maricopa, and
Yavapai Counties, Arizona.
Critical habitat in these two subunits
is 3,449 ac (1,395 ha) (AZ–9A 2,667 ac
(1,079 ha)); (AZ–9B 782 ac (316 ha)) in
extent and is a continuous segment of
the Verde River immediately upstream
of Horseshoe Dam and a continuous
segment of the Verde River immediately
downstream of Horseshoe Dam in
Yavapai County, Arizona. We have
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excluded approximately 387 ac (161 ha)
from (AZ–9A 76 ac (31 ha) and AZ–9B
311 ac (130 ha)) of land from the Units
AZ–9AB (see Exclusions). All lands are
in Federal ownership. The unit is
considered to have been occupied at the
time of listing, and the western yellowbilled cuckoo breeds at this site
annually (Corman and Magill 2000, pp.
37, 41; SRP 2011a, pp. 18, 19; Dockens
and Ashbeck 2011a, 2015, entire; AGFD
2018, entire; SRP 2017a, pp. A1–G2;
Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c). This unit is part
of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3, occur
within this unit but depend on river
flows and flood timing. This unit also
provides a movement corridor as well as
migratory stop-over habitat for western
yellow-billed cuckoos.
This unit includes part of the Salt and
Verde Riparian Ecosystem IBA, with
western yellow-billed cuckoos
identified as a breeding bird (National
Audubon Society 2016b, entire).
Riparian cottonwood-willow galleries
and mixed riparian stands of native and
tamarisk habitat exist both above and
below Horseshoe Dam, although some of
these stands occur as narrow strands
along the Verde River (SRP 2008, p. 61).
Habitat consists of contiguous to patchy
cottonwood, willow, tamarisk, and
mesquite (SRP 2011a, p. 18). Altered
hydrology has caused the introduction
and spread of nonnative tamarisk.
Although tamarisk is not as desirable as
native habitat, it contributes toward
habitat suitability in areas where the
native tree density can no longer be
sustained.
Unit 12: AZ–10 Tonto Creek; Gila
County, Arizona.
Critical habitat unit AZ–10 is 3,181 ac
(1,287 ha) in extent and is made up of
a continuous segment of Tonto Creek
ending at the 2,151-ft (656-m) elevation
line, which represents the lakebed at
Theodore Roosevelt Lake in Gila
County, Arizona. We have excluded
approximately 489 ac (198 ha) of land
from this unit (see Exclusions).
Approximately 2,045 ac (828 ha) is in
Federal ownership, and 1,135 ac (459
ha) is in other ownership. The unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and nest in this unit
during the breeding season (Corman and
Magill 2000, pp. 37, 40, 41, 51; Johnson
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et al. 2004, 2005, 2006, 2007, entire;
SRP 2005, p. 5; Archaeological
Consulting Services, Ltd. 2016, entire;
2017, pp. 2–10; 2018, p. 3; 2019, entire;
SRP 2017b, p. 28; AGFD 2018, entire;
Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c, entire). This unit is
part of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. Dominant
riparian habitat in this unit is
cottonwood, willow, and tamarisk.
Mesquite bosque is adjacent to the
riparian habitat in some areas of Tonto
Creek (Archaeological Consulting
Services, Ltd 2018, entire). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos moving farther
north. Altered hydrology has caused the
introduction and spread of nonnative
tamarisk resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. Tamarisk is a
component of habitat in this unit and
may provide understory or nesting
habitat for the western yellow-billed
cuckoo.
Unit 13: AZ–11 Pinal Creek; Gila
County, Arizona.
Critical habitat unit AZ–11 is 419 ac
(169 ha) and is a 3-mi (5-km)-long
continuous segment of Pinal Creek,
approximately 4-mi (6-km) upstream of
the confluence with the Salt River north
of the Town of Globe in Gila County,
Arizona. We have excluded the entire
unit from the final designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 14: AZ–12 Bonita Creek; Graham
County, Arizona.
Critical habitat unit AZ–12 is 928 ac
(375 ha) in extent and is an 11-mi (17km)-long continuous segment of Bonita
Creek, a tributary of the Gila River, and
an 8-mi (13-km)-long continuous
segment of the Gila River extending
upstream and downstream of the
confluence with Bonita Creek, located
northeast of the Town of Safford in
Graham County, Arizona.
Approximately 828 ac (335 ha) is in
Federal ownership, and 101 ac (41 ha)
is in other ownership. The BLM’s Gila
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Box Riparian National Conservation
Area, established by Congress to
conserve, protect, and enhance the
riparian values of the area, includes
Bonita Creek. The unit is considered to
have been occupied at the time of
listing. Western yellow-billed cuckoo
occupy and nest in the unit during the
breeding season (Corman and Magill
2000, p. 49; AGFD 2018, entire;
Reclamation 2019, entire; Cornell Lab of
Ornithology 2020 (eBird)). This unit is
part of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor between
larger habitat patches. Habitat consists
of mesquite bosque and riparian habitat
dominated by cottonwood and willow
(AGFD 2018, entire). Altered hydrology
has caused the introduction and spread
of nonnative tamarisk resulting in
reduced quality of riparian habitat.
Although tamarisk is not as desirable as
native habitat, it may contribute toward
habitat suitability in areas where the
native tree density can no longer be
sustained.
Unit 15: AZ–13 San Francisco River;
Greenlee County, Arizona.
Critical habitat unit AZ–13 is 1,327 ac
(537 ha) in extent and is a 4-mi (6-km)long continuous segment of the San
Francisco River that includes a
continuous segment of a tributary called
Dix Creek located approximately 6 mi
(9.6 km) west of the border with New
Mexico in Greenlee County, Arizona.
Approximately 1,192 ac (482 ha) is in
Federal ownership, and 135 ac (55 ha)
is in other ownership. The unit is
considered to have been occupied at the
time of listing, and is used by the
western yellow-billed cuckoo during the
breeding season (AGFD 2018, entire;
Corman and Magill 2000, pp. 38–39, 44;
Cornell Lab of Ornithology 2020, (eBird
data)); Reclamation 2020b, p. 6.2.2).
This unit is part of the core area as
identified in our conservation strategy
for designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
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flood timing. The site also provides a
movement corridor between larger
habitat patches. This unit is part of the
Blue and San Francisco Rivers IBA.
Riparian habitat is dominated by
cottonwood, willow, alder, and
sycamore. Mesquite, walnut, oak, and
juniper may also be present (Corman
and Magill 2000, pp. 15–16; National
Audubon Society 2020c; entire).
Unit 16: AZ–14 Upper San Pedro
River; Cochise County, Arizona.
Critical habitat Unit AZ–14 is 31,059
ac (12,569 ha) in extent and is an 84-mi
(135-km)-long segment of the Upper San
Pedro River from the border with
Mexico north to nearly the community
of Redington in Cochise County,
Arizona. We have excluded the 60-ft
(18-m) Roosevelt Reservation from this
unit (see Exclusions). Approximately
17,957 ac (7,267 ha) is in Federal
ownership; 1,903 ac (770 ha) is in State
ownership; and 11,199 ac (4,532 ha) is
in other ownership. The unit is
considered to have been occupied at the
time of listing. The upper San Pedro
River is known as supporting one of the
largest nesting populations of western
yellow-billed cuckoo s along a freeflowing river during the breeding
season. This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. This unit also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos.
This unit not only includes gallery
riparian habitat dominated by
cottonwood and willow, but also a large
adjacent mesquite bosque, where
western yellow-billed cuckoos also nest
and forage (Corman and Magill 2000,
pp. 11, 39–40, 44, 50; Cascabel
Conservation Association 2014, entire;
EEC 2002, pp. ES–1, 6, 10, 11;
Halterman 2002, pp. 10, 22; Halterman
2003, pp. 9, 23; Halterman 2004, pp. 9,
33–34; Halterman 2005, pp. 8, 22–23;
Halterman 2006, pp. 26–27, 31;
Halterman 2007, pp. 5, 11; Halterman
2009, p. 23; Swanson 2014, entire;
AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data); Service
2020c, entire). Western yellow-billed
cuckoos have been found nesting in
mesquite bosque as far away as 0.3 mi
(0.5 km) from the adjacent upper San
Pedro River (Halterman 2006, p. 31).
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Other species include walnut,
soapberry, ash, Mexican elder, acacia,
and mimosa (EEC 2002, p. 14).
Much of this mesquite habitat is
composed of large mature trees. Western
yellow-billed cuckoos were documented
during 2014 surveys on the Babocomari
River portion of this unit in habitat that
is not as dense as on the San Pedro
River, including narrow habitat with
low stature and scattered riparian and
mesquite trees (Swanson 2014, entire).
Altered hydrology has caused the
introduction and spread of nonnative
tamarisk resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it
contributes toward habitat suitability in
areas where the native tree density can
no longer be sustained.
Most of this unit lies within the San
Pedro Riparian National Conservation
Area and the San Pedro Riparian
National Conservation Area IBA
(National Audubon Society 2016c,
entire). The IBA supports 100 species of
breeding birds, and 250 species of
migrant and wintering birds (National
Audubon Society 2016c, entire). The 40
mi (64 km) of the upper San Pedro River
was designated by Congress as a
Riparian National Conservation Area in
1988. The primary purpose for the
special designation is to protect and
enhance the desert riparian ecosystem,
a rare remnant of what was once an
extensive network of similar riparian
systems throughout the American
Southwest. Part of this unit is within the
Lower San Pedro River IBA (National
Audubon Society 2016h, entire). The
conservation property, Three Links
Farm consisting of 2,156 ac (873 ha),
was purchased by TNC to protect the
San Pedro River and its riparian habitat.
Reclamation holds a conservation
easement on part of the property.
Western yellow-billed cuckoos nest in
the cottonwood and willow dominated
gallery forest and mesquite bosque. The
Cascabel Conservation Association
(2014, entire), a non-profit corporation
of local landowners near the community
of Cascabel dedicated to the
collaborative stewardship of the Middle
San Pedro River watershed, provided
western yellow-billed cuckoo data
collected during the breeding season in
support of designation of critical
habitat. The Friends of the San Pedro
River, a non-profit organization
dedicated to the conservation and
restoration of the river through
advocacy, education, and interpretation
supports designation of critical habitat.
Unit 17: AZ–15 Lower San Pedro and
Gila Rivers; Pima, Pinal and Gila
Counties, Arizona.
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Critical habitat unit AZ–15 is 22,397
ac (9,064 ha) in extent and is a 119-mi
(192-km)-long segment of the Lower San
Pedro River from just north of the
community of Redington in Pima
County downstream for approximately
49 mi (78 km) to its confluence with the
Gila River. The Gila River segment
continues downstream for
approximately 39 mi (63 km) to the area
of the Ashurst-Hayden Dam. A segment
of the unit continues upstream to
Porphyry Gulch in Pinal County,
Arizona. In the revised proposed rule,
we identified approximately 729 ac (295
ha) of San Carlos Apache parcel land in
this unit for exclusion. After
publication, we identified an additional
185 ac (75 ha) along the Lower San
Pedro River between Aravaipa Creek
and the Gila River confluence, totaling
approximately 914 ac (370 ha) of San
Carlos Apache lands. However, due to
revisions of the area considered as
critical habitat between the revised
proposed rule and this final designation,
the area upstream of Prophyry Gulch on
the Gila River was removed. As a result,
the total area of Tribal lands we are
excluding in Unit 17 is approximately
445 ac (184 ha). (see Exclusions, Tribal
Lands). The San Carlos Apache parcels
along the lower San Pedro River
between Aravaipa Creek and the Gila
River confluence are within a riparian
corridor occupied by western yellowbilled cuckoos (Service 2013, pp. 349,
387). These small parcels are likely
within the home range of foraging and
breeding western yellow-billed cuckoos.
Approximately 2,695 ac (1,091 ha) is in
Federal ownership; 2,280 ac (922 ha) is
in State ownership; and 17,421 ac (7,050
ha) is in other ownership. The unit is
considered to have been occupied at the
time of listing. This unit is an important
breeding area for western yellow-billed
cuckoos and is consistently occupied by
a number of pairs during the breeding
season (Corman and Magill 2000, pp.
38–40, 42–44, 49–50; SRP 2005, pp. 7–
24; SRP 2011b, pp. 22–37; SRP 2015, p.
29; Andreson 2016b, entire; AGFD 2018,
entire; Murray and Gicklhorn 2018, pp.
14–15; National Audubon Society
2016h, entire; Reclamation 2019 entire;
SRP 2019b, pp. 29–31; Service 2020c,
entire). We removed a portion of critical
habitat that was previously identified in
the revised proposed rule because
habitat upstream of Porphyry Gulch on
the Gila River is narrower and patchier
than the rest of the unit. In part of the
removed reach, the Gila River flows
through a narrow canyon with limited
space for habitat to develop. Several
mitigation conservation properties along
the San Pedro River that support nesting
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western yellow-billed cuckoos were not
considered for exclusion. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
movement corridor and migratory stopover location for western yellow-billed
cuckoos moving farther north. Altered
hydrology has caused the introduction
and spread of nonnative tamarisk
resulting in reduced quality of riparian
habitat. Although tamarisk is not as
desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. Tamarisk is a
component of habitat in this unit and
may provide understory or nesting
habitat for the western yellow-billed
cuckoo.
The entire lower San Pedro reach is
included in the Lower San Pedro River
IBA (National Audubon Society 2016h,
entire) and consists of cottonwood and
Goodding’s willow gallery forest
riparian habitat is interspersed with old
growth honey mesquite (Prosopis
juliflora) woodland bosques. Other
species include hackberry, ash, coyote
willow, greythorn, and buttonbush
(Murray and Gicklhorn 2018, p. 14).
Surrounding habitat is desert scrub. The
largest intact mesquite bosque
community remaining in Arizona is the
14-mi (23-km) reach of the San Pedro
River beginning south of San Manuel
and ending north of Mammoth. Many
conservation properties occur in this
unit, most of which were purchased as
mitigation for projects that impacted
riparian resources. They include Pima
County’s Bingham Cienega in Pima
County; SRP’s San Pedro River Preserve,
Spirit Hollow, Adobe Preserve,
Stillinger Preserve; Resolution Copper’s
7B Ranch, BHP-Biliton property;
AGFD’s Lower San Pedro River Wildlife
Area, and Reclamation’s Cook’s Lake/
Cienega Seep. BLM property exists
along the San Pedro River as well.
Conservation partnerships among these
landowners to protect habitat include
the Lower San Pedro Watershed
Alliance (2014, entire), Lower San Pedro
Watershed Collaborative, and Lower
San Pedro Working Group (SRP 2019b,
p. 37).
Unit 18: AZ–16 Sonoita Creek; Santa
Cruz County, Arizona.
Critical habitat Unit AZ–16 is 2,488 ac
(1,007 ha) in extent and is a 16-mi (26km)-long segment of Sonoita Creek from
the Town of Patagonia downstream to a
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point on the creek approximately 4 mi
(6 km) east of the Town of Rio Rico in
Santa Cruz County, Arizona.
Approximately 926 ac (375 ha) is in
State ownership, and 1,563 ac (633 ha)
is in other ownership. This unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos nest throughout this unit
during the breeding season (Corman and
Magill 2000, pp. 38–40, 45, 51; Kingsley
and Gaiennie 2005, entire; Tucson
Audubon Society 2012, entire; AGFD
2018, entire; Cornell Lab of Ornithology
2020 (eBird data); Service 2020c, entire).
This unit is part of the core area as
identified in our conservation strategy
for designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. This site also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos.
The perennial flow in Sonoita Creek
supports a diverse gallery cottonwood
and Goodding’s willow forest that
includes walnut, mesquite, ash,
hackberry, and various willow species
in this rare southeastern Arizona
ecosystem (National Audubon Society
2016d, entire). This unit includes
Patagonia State Park, Sonoita Creek
State Natural Area, Patagonia-Sonoita
Creek TNC Preserve, and the Tucson
Audubon Society’s Paton Center for
Hummingbirds. The Patagonia-Sonoita
Creek TNC Preserve IBA lies within this
unit, under conservation stewardship by
state parks, TNC, and Tucson Audubon
Society (National Audubon Society
2016d, entire).
Unit 19: AZ–17, Upper Cienega Creek;
Pima County, Arizona.
Critical habitat Unit AZ–17 is 5,204 ac
(2,106 ha) in extent and is an 11-mi (18km)-long segment of Cienega Creek.
Approximately 4,630 ac (1,874 ha) is in
Federal ownership, and 574 ac (232 ha)
is in State ownership. This unit is
considered to have been occupied at the
time of listing, and is used by the
western yellow-billed cuckoo during the
breeding season (Corman and Magill
2000, pp. 38–39, 40, 44, 48; BLM 2010,
2003, entire; AGFD 2018, entire; Cornell
Lab of Ornithology 2020 (eBird data);
Service 2020c, entire). This unit is part
of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
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habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. This unit also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. This unit
connects Gardner Canyon (AZ–46) with
upper Cienega Creek. BLM’s Las
Cienegas National Conservation Area,
also designated as the Las Cienegas NCA
IBA, includes cienegas (marshlands)
and cottonwood and willow riparian
forests, and mesquite bosques bisecting
sacaton (Sporobolus sp.) grasslands and
semi-desert grasslands (National
Audubon Society 2020d, entire).
Unit 20: AZ–18 Santa Cruz River;
Santa Cruz County, Arizona.
Critical habitat Unit AZ–18 is 9,538 ac
(3,860 ha) in extent and is a 27-mi (43km)-long segment of the Santa Cruz
River from the U.S./Mexico border north
to the vicinity of the Town of Tubac in
Santa Cruz County, Arizona. We have
excluded the 60-ft (18-m) Roosevelt
Reservation from this unit (see
Exclusions). Approximately 505 ac (204
ha) is in Federal ownership; 4 ac (2 ha)
is in State ownership; and 9,029 ac
(3,654 ha) is in other ownership. This
unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
in numerous locations along the Santa
Cruz River and tributaries during the
breeding season, including a
concentration of nesting yellow-billed
cuckoos within the Tumacacori area
(Corman and Magill 2000, pp. 14, 39,
40, 50; Powell 2000, entire; Krebbs and
Moss 2009, entire; Baril et al. 2019, p.
85; National Audubon Society 2016e,
entire; Cornell Lab of Ornithology 2020
(eBird data); Service 2020c, entire). This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Some portions of the unit
are considered disturbed and may not
contain all the physical or biological
features essential to the conservation of
the species, but due to our mapping
constraints, some of these areas were
left within the boundaries of the unit.
These disturbed areas not containing the
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physical or biological features would
not be considered critical habitat. The
site also provides a movement corridor
and migratory stop-over habitat for
western yellow-billed cuckoos.
This unit is within the Upper Santa
Cruz IBA, with western yellow-billed
cuckoos identified as a breeding species
(National Audubon Society 2016e,
entire). The Upper Santa Cruz River IBA
is a linear riparian corridor from
Tumacacori National Historical Park
downstream (northward) through the
Tucson Audubon Society-held
conservation easement (National
Audubon Society 2016e, entire). This
reach of river has the highest
groundwater levels and perennial river
flow, primarily treated wastewater, but
with some groundwater seep
augmentation. The IBA boundaries are
defined by the cottonwood and willow
riparian vegetation, including the
mesquite bosques that border the
broadleaf gallery forest and elderberry
thickets (Powell 2000, p. 5). The IBA
also includes all the National Historical
Park and Tucson Audubon Society-held
conservation easement lands.
Unit 21: AZ–19 Black Draw; Cochise
County, Arizona.
Critical habitat Unit AZ–27 is 1,595 ac
(646 ha) in extent. Approximately 891
ac (360 ha) is in Federal ownership; 134
ac (54 ha) is in State ownership; and 570
ac (231 ha) is in other ownership. We
have excluded the 60-ft (18-m)
Roosevelt Reservation from this unit
(see Exclusions). This unit is considered
to have been occupied at the time of
listing and is used by the western
yellow-billed cuckoo during the
breeding season (Corman and Magill
2000, pp. 39, 50; Radke 2014, pp. 57–
58, 112; Cajero 2016, entire; Radke 2017,
pp. 41–42; AGFD 2018, entire; Cajero
2018, entire; Radke 2019, pp. 26, 84, 88;
Radke 2020, pp. 40–41; Service 2020c,
entire). This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos. Habitat is primarily
cottonwood, Goodding’s willow, and
some mesquite (Cajero 2016, entire).
Unit 22: AZ–20, Gila River 1; Graham
County, Arizona.
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Critical habitat Unit AZ–20 is 10,540
ac (4,266 ha) in extent and is a 76-mi
(123-km) long continuous segment of
the Gila River in Graham County,
Arizona. This segment extends along the
Gila River from east of Safford
downstream to the confluence with the
San Carlos Reservoir. We have excluded
approximately 10,184 ac (4,121 ha) of
land from this unit (see Exclusions).
Several mitigation conservation
properties along the Gila River that
support nesting western yellow-billed
cuckoos were not considered for
exclusion. Approximately 778 ac (315
ha) is in Federal ownership; 215 ac (87
ha) is in State ownership; and 9,547 ac
(3,863 ha) is in other ownership. This
unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos nest in this unit
during the breeding season (Corman and
Magill 2000, p. 39; Dockens and
Ashbeck 2014, pp. 6–7; SRP 2015; p. 28;
Johnson 2016, entire; AGFD 2018,
entire; SRP 2019a, pp. 33–62; Service
2020c, entire). This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. Part of this unit is within
the BLM’s Gila Box Riparian National
Conservation Area, established by
Congress to conserve, protect, and
enhance the riparian values of the area,
Mitigation conservation properties along
the Gila River that support nesting
western yellow-billed cuckoos were not
considered for exclusion at the request
of the landowners. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. Altered
hydrology has caused the introduction
and spread of nonnative tamarisk
resulting in reduced quality of riparian
habitat. Although tamarisk is not as
desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos.
Suitable habitat varies from multistoried cottonwood and Goodding’s
willow dominated habitat with large
patches of coyote willow along the
stream edges to mixed tamarisk/native
habitat with fewer cottonwood and
willows (SRP 2019a, p. 62). Western
yellow-billed cuckoo presence and
density varies, depending on habitat
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quality. Patches of unsuitable tamarisk
dominated habitat are interspersed
within this unit.
Unit 23: AZ–21 Salt River; Gila
County, Arizona.
Critical habitat unit AZ–21 is 581 ac
(235 ha) in extent and is a 5-mi (8-km)long continuous segment of the Salt
River ending at the 2,151-ft (656-m)
elevation line, which represents the
lakebed at Theodore Roosevelt Lake in
Gila County, Arizona. We have
excluded approximately 2,009 ac (813
ha) of land from this unit (see
Exclusions). Approximately 502 ac (203
ha) of this unit is Federal ownership,
and 79 ac (32 ha) is in other ownership.
This unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
in this unit during the breeding season
(Corman and Magill 2000, p. 38, 50;
Johnson et al. 2004, 2005, 2006, 2007,
entire; SRP 2005, p. 5; SRP 2017b, p. 28;
AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data)). This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Habitat consists of
primarily of tamarisk, mesquite, and
willow. The site also provides a
movement corridor between larger
habitat patches. Altered hydrology has
caused the introduction and spread of
nonnative tamarisk resulting in reduced
quality of riparian habitat. Although
tamarisk is not as desirable as native
habitat, it may contribute toward habitat
suitability in areas where the native tree
density can no longer be sustained.
Tamarisk is a component of habitat in
this unit and may provide understory or
nesting habitat for the western yellowbilled cuckoo.
Unit 24: AZ–22 Lower Cienega Creek,
Pima County, Arizona.
Critical habitat unit AZ–22 is 2,360 ac
(955 ha) in extent and is an 11-mi (18km)-long continuous segment of Cienega
Creek about 15 mi (24 km) southeast of
Tucson in Pima County, Arizona.
Approximately 759 ac (307 ha) are State
lands and 1,601 ac (648 ha) is in other
ownership. This unit is considered to
have been occupied at the time of
listing. Western yellow-billed cuckoos
occupy and nest in Pima County’s
Cienega Creek Natural Preserve
regularly during the breeding season
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(Corman and Magill 2000, p. 48; Powell
2013, entire; Murray and Gicklhorn
2018, pp. 11–13; AGFD 2018, entire;
National Audubon Society 2013a,
entire; Cornell Lab of Ornithology 2020
(eBird data)). This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor between
larger habitat patches. Habitat consists
of cottonwood, Goodding’s willow, ash,
hackberry, and mesquite in reaches of
perennial water. Tamarisk is widely
scattered and relatively rare (Powell
2013, p. 12). Altered hydrology has
caused the introduction and spread of
nonnative tamarisk resulting in reduced
quality of riparian habitat. Although
tamarisk is not as desirable as native
habitat, it may contribute toward habitat
suitability in areas where the native tree
density can no longer be sustained.
Unit 25: AZ–23 Blue River, Greenlee
County, Arizona.
Critical habitat unit AZ–23 is 1,025 ac
(415 ha) in extent and is an 8-mi (13km)-long continuous segment of the
Blue River in Greenlee County, Arizona.
The entire unit is in Federal ownership
located on the Apache Sitgreaves
National Forest managed by the USFS.
This unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy this site
(AGFD 2018, entire; Corman and Magill
2000, pp. 14, 38–39, 44; Reclamation
2020b, p. 6.1.2). This unit is part of the
Blue and San Francisco Rivers IBA
(National Audubon Society 2020c,
entire). This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Riparian habitat is
dominated by cottonwood, willow,
alder, and sycamore. Walnut, mesquite,
oak and juniper may also be present.
Unit 26: AZ–24 Pinto Creek South,
Gila and Pinal Counties, Arizona.
Critical habitat unit AZ–24 is 373 ac
(151 ha) in extent and is a 4-mi (6-km)-
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long continuous segment of Pinto Creek
in Gila and Pinal Counties, Arizona.
Approximately 368 ac (149 ha) is in
Federal ownership, and 5 ac (2 ha) is in
other ownership. This unit is
considered to have been occupied at the
time of listing (Corman and Magill 2000,
pp. 38, 42, AGFD 2018, entire;
WestLand Resources, Inc. 2019, entire;
Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c, entire). This unit is
part of the core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. Altered
hydrology has caused the introduction
and spread of nonnative tamarisk
resulting in reduced quality of riparian
habitat. Although tamarisk is not as
desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. Habitat is mostly
native broadleaf plants, with an
overstory of cottonwood, Goodding’s
willow, and sycamore and an
understory of ash and cottonwood
(WestLand Resources, Inc. 2019, entire).
Unit 27: AZ–25 Aravaipa Creek; Pinal
and Graham Counties, Arizona.
Critical habitat Unit AZ–25 is 2,937 ac
(1,189 ha) in extent and is a 28-mi (46km)-long continuous segment of
Aravaipa Creek extending from the
confluence of Aravaipa Creek and the
San Pedro River in Pinal and Graham
Counties, Arizona. In addition, this unit
includes approximately 3-mi (4-km) of
the Turkey Creek tributary on the
eastern end of the Unit. We have
excluded approximately 392 ac (159 ha)
of San Carlos Apache tribal land from
this unit (see Exclusions).
Approximately 622 ac (252 ha) is in
Federal ownership; 116 ac (47 ha) is in
State ownership; and 2,199 ac (890 ha)
is in other ownership. This unit
includes BLM’s Aravaipa Canyon
Wilderness Area and TNC’s Aravaipa
Canyon Preserve. This unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and nest in this unit
during the breeding season within this
unit (Corman and Magill 2000, pp. 41–
43; AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data)). This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. Habitat is
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mixed broadleaf riparian forest
composed of cottonwood, willow,
walnut, alder, and sycamore trees (TNC
2020, entire). The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos.
Patches and stringers of cottonwoodwillow riparian forest and adjacent
mesquite bosque exist throughout
Aravaipa Canyon. This drainage
experiences scouring flood flows that
can result in shifting suitable habitat
within the floodplain. Including the
entire Aravaipa Canyon ensures that if
suitable habitat shifts, it will remain
within critical habitat. Connecting this
unit to the San Pedro River units (AZ–
14 and AZ–15) by including the
confluence with the San Pedro River
strengthens the conservation value of
both units by linking breeding,
migration, and dispersal corridors.
Altered hydrology caused the
introduction and spread of nonnative
tamarisk resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it
contributes toward habitat suitability in
areas where the native tree density can
no longer be sustained.
Unit 28: AZ–26, Gila River 2; Graham
and Greenlee Counties, Arizona.
Critical habitat Unit AZ–26 is 5,836 ac
(2,362 ha) in extent and is a continuous
segment of the Gila River and
continuous segment of Eagle Creek in
Graham and Greenlee Counties,
Arizona. Eagle Creek, a tributary to the
Gila River, straddles the eastern
boundary of San Carlos Apache
Reservation and meanders in and out of
private, State, tribal, and Federal lands.
Also included in this unit is a small
portion of the San Francisco River at the
confluence with the Gila River in
Graham and Greenlee Counties,
Arizona. We have excluded
approximately 2,753 ac (1,114 ha) of
land from this unit (see Exclusions).
Approximately 1,895 ac (767 ha) is in
Federal ownership; 204 ac (83 ha) is in
State ownership; and 3,736 ac (1,512 ha)
is in other ownership. Part of this unit
is within the BLM’s Gila Box Riparian
National Conservation Area, established
by Congress to conserve, protect, and
enhance the riparian values of the area.
This unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
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in this unit in several locations on the
Gila River and Eagle Creek during the
breeding season (WestLand Resources,
Inc. 2015e, entire; Andreson 2016a,
entire; Johnson 2016, entire; AGFD
2018, entire; Cornell Lab of Ornithology
2020 (eBird data); Service 2020c, entire).
This unit is part of the core area as
identified in our conservation strategy
for designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos.
Riparian habitat in overstory and
understory along one survey reach in
Eagle Creek is primarily cottonwood
and sycamore (Westland Resources, Inc.
2019, entire). Lower Eagle Creek
includes cottonwood, willow, ash, and
mesquite bosque habitat where western
yellow-billed cuckoos have been
documented during the breeding season.
Although narrow and patchy in some
reaches of the eastern part of this unit
on the Gila River, habitat is primarily
cottonwood and willow, with less
tamarisk than farther downstream
(Johnson 2016, entire). Altered
hydrology has caused the introduction
and spread of nonnative tamarisk
resulting in reduced quality of riparian
habitat. Although tamarisk is not as
desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained.
Unit 29: AZ–27 Pinto Creek North;
Gila County, Arizona.
Critical habitat unit AZ–27 is 427 ac
(173 ha) in extent and is a 6-mi (10-km)long continuous segment of Pinto Creek,
located approximately 7 mi (11 km)
upstream of Roosevelt Lake in Gila
County, Arizona. Approximately 415 ac
(168 ha) is in Federal ownership, and 12
ac (5 ha) is in other ownership. This
unit is considered to have been
occupied at the time of listing and is
used by the western yellow-billed
cuckoo during the breeding season
AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data); Service
2020, entire). This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
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Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides migration stop-over habitat.
Altered hydrology has caused the
introduction and spread of nonnative
tamarisk resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. Habitat has
declined in recent years due to drought
and water withdrawal. Habitat consists
of Goodding’s willow, cottonwood, ash,
alder, sycamore, hackberry and some
tamarisk. Large mesquite trees are
adjacent to the riparian habitat (Service
2020c, entire).
Unit 30: AZ–28 Mineral Creek; Pinal
and Gila Counties, Arizona.
Critical habitat Unit AZ–28 is 380 ac
(154 ha) in extent and is a 7-mi (11-km)long continuous segment of Mineral
Creek in Pinal and Gila Counties,
Arizona. Approximately 1 ac (<1 ha) is
in Federal ownership; 198 ac (80 ha) is
in State ownership; and 180 ac (73 ha)
is in other ownership. This unit is
considered to have been occupied at the
time of listing and is used by the
western yellow-billed cuckoo during the
breeding season (WestLand Resources,
Inc. 2019, entire). The southern end of
Mineral Creek, which is not included in
the proposal, empties into a reservoir
owned by American Smelting And
Refining Company (ASARCO). This unit
is part of the core area as identified in
our conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. Mineral Creek
provides suitable habitat for western
yellow-billed cuckoos along most of the
surveyed reach, consisting mostly of
ash, with willow, cottonwood, and
sycamore (Westland Resources, Inc.
2019, entire).
Unit 31: AZ–29 Big Sandy River;
Mohave County, Arizona.
Critical habitat within Unit AZ–29
totals approximately 4,236 ac (1,714 ha)
in extent. We have excluded
approximately 500 ac (202 ha) of land
from this unit (see Exclusions (Alamo
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Lake Wildlife Area)). We also removed
additional areas from this unit due to
either not containing the PBFs or not
meeting our criteria for designation.
Approximately 1,291 ac (522 ha) is in
Federal ownership and 2,945 ac (1,192
ha) is in other ownership. Based on
survey data, descriptions of habitat, and
lack of information, we have removed
parts of this unit from critical habitat
designation. Areas removed were more
arid and or in narrow canyons than the
remaining portion of the unit. This unit
is considered to have been occupied at
the time of listing and western yellowbilled cuckoos occupy this site during
the breeding season (Magill et al. 2005,
p. 8; Dockens et al. 2006, p. 7;
O’Donnell et al. 2016, pp. 1, 6, 21). This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Following heavy
streamflow, the amount of regenerating
habitat that develops along the Big
Sandy River at the inflow to Alamo Lake
is influenced by the length of time and
the amount of water that is backed up
behind the dam. The site also provides
a movement corridor and migratory
stop-over habitat for western yellowbilled cuckoos.
The Big Sandy River has flows that
are spatially and temporally
intermittent. However, in the vicinity of
US 93, the river is perennial and
supports a dense riparian woodland of
tamarisk, cottonwood, and Goodding’s
willow, bordered and interspersed with
mesquite (Magill et al. 2005, pp. 1, 5).
Within the floodplain, seep willow,
arrowweed (Pluchea sericea), and
screw-bean mesquite (Prosopis
pubescens) are also common. Adjacent
upland habitat in the area is Arizona
Upland Subdivision of Sonoran
Desertscrub dominated by foothills
paloverde (Circidium floridium), mixed
cacti, and creosote bush (Larrea
tridentata) (Magill et al. 2005, p. 5).
Western yellow-billed cuckoos were
found in cottonwood, willow, or the
adjacent mesquite (Magill et al. 2005, p.
8; Dockens et al. 2006, p. 7). Altered
hydrology has caused the introduction
and spread of nonnative tamarisk
resulting in reduced quality of riparian
habitat. Although tamarisk is not as
desirable as native habitat, it may
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contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained.
Unit 32: NM–1 San Francisco River;
Catron County, New Mexico.
Critical habitat unit NM–1 is 2,039 ac
(825 ha) in extent and is a 10-mi (16km)-long continuous segment of the San
Francisco River near the Town of
Glenwood in Catron County, New
Mexico. This segment includes 1.2 mi (2
km) portion of Whitewater Creek from
the confluence of the San Francisco
River near the Town of Glenwood.
Approximately 738 ac (299 ha) is in
Federal ownership; 10 ac (4 ha) is in
State ownership; and 1,291 ac (522 ha)
is in other ownership. This unit is
considered to have been occupied at the
time of listing and is used by the
western yellow-billed cuckoo during the
breeding season. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides migratory stop-over habitat for
western yellow-billed cuckoos moving
farther north. Tamarisk is a component
of habitat in this unit and may provide
understory or nesting habitat for the
western yellow-billed cuckoo. This unit
is part of the core area as identified in
our conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. Altered hydrology has
caused the introduction and spread of
nonnative tamarisk resulting in reduced
quality of riparian habitat. Although
tamarisk is not as desirable as native
habitat, it may contribute toward habitat
suitability in areas where the native tree
density can no longer be sustained.
Unit 33: NM–2 Gila River; Grant
County, New Mexico.
Critical habitat unit NM–2 is 3,036 ac
(1,228 ha) in extent and is a 24-mi (37km)-long continuous segment of the Gila
River from 10 mi (16 km) downstream
from the town of Cliff to 10 mi (16 km)
upstream of the town of Gila in Grant
County, New Mexico. We have excluded
approximately 1,142 ac (381 ha) of land
from this unit (see Exclusions).
Approximately 974 ac (394 ha) is in
Federal ownership; 194 ac (78 ha) is in
State ownership; and 1,867 ac (756 ha)
is in other ownership. This unit is
considered to have been occupied at the
time of listing and is consistently used
by a large number of western yellowbilled cuckoos during the breeding
season and is an important breeding
location for the species. This unit is part
of the core area as identified in our
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conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides migratory stop-over habitat for
western yellow-billed cuckoos moving
farther north. Altered hydrology has
caused the introduction and spread of
nonnative tamarisk resulting in reduced
quality of riparian habitat. Although
tamarisk is not as desirable as native
habitat, it may contribute toward habitat
suitability in areas where the native tree
density can no longer be sustained.
Tamarisk is a component of habitat in
this unit and may provide understory or
nesting habitat for the western yellowbilled cuckoo.
Unit 34: NM–3A and NM–3B
Mimbres River; Grant County, New
Mexico.
Critical habitat Unit NM–3 is 544 ac
(220 ha) in extent (NM–3A 260 ac (105
ha); NM–3B 284 ac (115 ha)). The unit
is made up of two segments totaling
approximately 7.4 mi (11.9 km) of the
Mimbres River north of the town of
Mimbres in Grant County, New Mexico.
The entire proposed Unit NM–3 is
privately owned. This unit is considered
to have been occupied at the time of
listing and id used by western yellowbilled cuckoo during the breeding
season. This unit is part of the core area
as identified in our conservation
strategy for designating critical habitat
for the western yellow-billed cuckoo.
The two areas provide the habitat
components in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Habitat is composed of
mainly cottonwood, Goodding’s willow
and boxelder.
Unit 35: NM–4 Upper Rio Grande 1;
Rio Arriba County, New Mexico.
Critical habitat unit NM–4 is 518 ac
(210 ha) in extent and is a 10-mi (16km)-long continuous segment of the
upper Rio Grande from Ohkay Owingeh
to near Alcalde in Rio Arriba County,
New Mexico. We have excluded
approximately 1,312 ac (513 ha) of land
from this unit (see Exclusions). The
entire area is in private ownership. This
unit is considered to have been
occupied at the time of listing and is
used by the western yellow-billed
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cuckoo during the breeding season. This
unit is part of the core area as identified
in our conservation strategy for
designating critical habitat for the
western yellow-billed cuckoo. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
movement corridor for western yellowbilled cuckoos moving farther north.
Altered hydrology has caused the
introduction and spread of nonnative
tamarisk resulting in reduced quality of
riparian habitat. Although tamarisk is
not as desirable as native habitat, it may
contribute toward habitat suitability in
areas where the native tree density can
no longer be sustained. Tamarisk is a
component of habitat in this unit and
may provide understory or nesting
habitat for the western yellow-billed
cuckoo.
Unit 36: NM–5 Upper Rio Grande 2;
Santa Fe and Rio Arriba Counties, New
Mexico.
Critical habitat unit NM–5 was
proposed as 1,173 ac (475 ha) in extent
and comprised of a 6-mi (10-km)-long
continuous segment of the Upper Rio
Grande starting from the Highway 502
Bridge at the south end of the San
Ildefonso Pueblo upstream to a point on
the river in Rio Arriba County, New
Mexico. We have excluded the entire
unit from the final designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 37: NM–6A and NM–6B Middle
Rio Grande; Sierra, Socorro, Valencia,
Bernalillo, and Sandoval Counties, New
Mexico.
Critical habitat Unit NM–6 is made up
of two areas: NM–6A and NM–6B. NM–
6A has been entirely excluded from the
final designation (see Exclusions). A
description and map of Unit NM–6A is
maintained in supporting information
for this designation (Service 2020b,
entire). NM–6B contains 46,595 ac
(18,856 ha) along the Rio Grande
upstream of Elephant Butte Reservoir in
Socorro and Valencia Counties, New
Mexico. Within Unit 37 NM–6B
approximately 8,651 ac (3,501 ha) is in
Federal ownership; 13,064 ac (5,287 ha)
is in State ownership; and 24,879 ac
(10,068 ha) is in other ownership. This
unit is considered to have been
occupied at the time of listing and is
consistently occupied by the largest
number of western yellow-billed
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cuckoos during the breeding season
north of Mexico. This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a movement corridor for
western yellow-billed cuckoos. Altered
hydrology has resulted in the
establishment of tamarisk. Tamarisk is
being used by western yellow-billed
cuckoos during the breeding season in
this unit and may provide important
understory habitat (Sechrist et al. 2009,
p. 55).
Unit 38: NM–7, Upper Gila River;
Hidalgo and Grant Counties, New
Mexico.
Critical habitat Unit NM–7 is 4,727 ac
(1,913 ha) in size and extends in a 30mi (48-km)-long continuous segment of
the Gila River from the Arizona-New
Mexico border 5 mi (8 km) downstream
from Virden in Hidalgo County
upstream to 8 mi (13 km) upstream from
Red Rock in Grant County, New Mexico.
Approximately 1,086 ac (439 ha) is in
Federal ownership; 188 ac (76 ha) is in
State ownership; and 3,453 ac (1,397 ha)
is in other ownership. The unit is
considered to have been occupied at the
time of listing. This site is consistently
occupied by numerous pairs of western
yellow-billed cuckoos during the
breeding season. This unit is part of the
core area as identified in our
conservation strategy for designating
critical habitat for the western yellowbilled cuckoo. The unit provides the
habitat component provided in PBF 1
and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The unit also
provides connecting habitat between the
Upper and Lower Gila River and a
movement corridor and migratory stopover habitat for western yellow-billed
cuckoos. Tamarisk is a component of
habitat in this unit and may provide
understory or nesting habitat for the
western yellow-billed cuckoo.
Unit 39: NM–8A Caballo Delta North
and NM–8B Caballo Delta South; Sierra
County, New Mexico.
Critical habitat unit NM–8 is made up
of two areas (NM–8A 190 ac (77 ha) and
NM–8B 155 ac (63 ha)) within the delta
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area of Caballo Reservoir east of the
town of Caballo, within Sierra County,
New Mexico. We have excluded the
entire Unit 39 (NM–8A and NM–8B)
from the final designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 40: NM–9 Animas; Sierra
County, New Mexico.
Critical habitat unit NM–9 is 608 ac
(246 ha) in extent and is located on a 6mi (10-km)-long continuous segment of
Las Animas Creek west of the town of
Caballo, within Sierra County, New
Mexico. We have excluded the entire
unit from the final designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 41: NM–10 Selden Canyon and
Radium Springs; Don˜a Ana County,
New Mexico.
Critical habitat unit NM–10 is 237 ac
(96 ha) in extent and is a 12.5-mi (20km)-long continuous segment of river in
Don˜a Ana County, New Mexico. It is
located on a continuous segment of
habitat northwest of the town of Radium
Springs, within Don˜a Ana County, New
Mexico. We have excluded the entire
unit from the final designation (see
Exclusions). A description and map of
this unit is maintained in supporting
information for this designation (Service
2020b, entire).
Unit 42: AZ–30 Arivaca Wash and
San Luis Wash; Pima County, Arizona.
Critical habitat unit AZ–30 is 5,765 ac
(2,333 ha) in extent and is made up of
two washes that join to form a 17-mi
(27-km)-long continuous segment that
comprises 9 mi (15 km) of Arivaca Wash
and 8 mi (13 km) of San Luis Wash. The
unit is located about 10 mi (16 km)
north of the border of Mexico near the
Town of Arivaca in Pima County,
Arizona. Approximately 4,662 ac (1,887
ha) is in Federal ownership; 89 ac (36
ha) is in State ownership; and 1,014 ac
(410 ha) is in other ownership. Most of
this unit is located on the Buenos Aries
National Wildlife Refuge. The unit is
considered to have been occupied at the
time of listing. This unit is consistently
occupied by numerous nesting western
yellow-billed cuckoos during the
breeding season (Corman and Magill
2000, pp. 39, 42–43, 47; Griffin 2015,
entire; AGFD 2018, entire; Cornell Lab
of Ornithology (2020, entire). This unit
is part of the area within the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo, which is outside
mainstem rivers and their tributaries as
identified in our conservation strategy.
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The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The western
yellow-billed cuckoo breeding
population on the refuge occurs not
only within this unit, but in the Brown
Canyon unit and in other drainages not
included as critical habitat. Ephemeral,
intermittent, and perennial riparian
drainages intersect grassland, mesquite
woodlands, Madrean evergreen
woodland, and scrub habitat across the
refuge (Griffin 2015, pp. 1, 28; Corson
2018, entire). The site also provides a
movement corridor between larger
habitat patches. Within this unit, habitat
consists of cienega marsh, cattailbulrush pond, cottonwood and willow
riparian forest mixed with ash and
hackberry, upland mesquite woodland,
bottomland mesquite-herbaceous
woodland mesquite-hackberry
woodland, native grassland, and
disturbed herbaceous areas (Griffin
2015, pp. 10–13).Walnut, Mexican
elderberry, desert willow, and mesquite
occur as small trees in the understory in
some areas. Small seeps and springs are
also present in this complex.
Unit 43: AZ–31 Florida Wash; Pima
and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ–31 is 747 ac
(302 ha) in extent and is a 6-mi (10-km)long continuous segment of Florida
Wash and tributaries in Pima and Santa
Cruz Counties, Arizona. Approximately
449 ac (182 ha) is in Federal ownership;
255 ac (103 ha) is in State ownership;
and 43 ac (17 ha) is in other ownership.
This unit is considered to have been
occupied at the time of listing and
occupy and nest in this unit during the
breeding season (MacFarland and Horst
2015, pp. 101–102, 185–186;
MacFarland and Horst 2017, pp. 57–58;
AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data)); Drost et
al. 2020, pp. 13, 33, 35). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
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migratory stop-over habitat for western
yellow-billed cuckoos.
This unit is within the Santa Rita
Mountains IBA (National Audubon
Society 2016f, entire), one of the sky
islands of southeastern Arizona with
transitional elevational gradients of
forest, oak woodland, grassland, and
riparian habitat. Vegetation in occupied
habitat is primarily oak, hackberry, and
mesquite, with some acacia, sycamore,
ocotillo (Fouquieria splendens), and
juniper along with various other
midstory and understory plant species
(MacFarland and Horst 2015, pp. 124,
129, 134; Service 2020c, entire).
Unit 44: AZ–32 California Gulch;
Santa Cruz County, Arizona.
Critical habitat Unit AZ–32 is 558 ac
(226 ha) in extent and is a 7-mi (11-km)long continuous segment along
California Gulch in Santa Cruz County,
Arizona. Approximately 376 ac (152 ha)
is in Federal ownership, and 181 ac (73
ha) is in other ownership. We have
excluded the 60-ft (18-m) Roosevelt
Reservation from this unit (see
Exclusions). The unit is considered to
have been occupied at the time of
listing. Western yellow-billed cuckoos
occupy and nest in this drainage
regularly during the breeding season
(Sferra et al. 2019, pp. 5, 6, 9; Cornell
Lab of Ornithology 2020 (eBird data)).
This unit is part of the area within the
Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
unit is within the Atascosa Mountains
IBA in one of the sky islands (Arizona
IBA 2020a; entire). The habitat is
Sonoran desert scrub, Madrean
evergreen woodland, semi-desert
grassland, and low-elevation riparian.
Unit 45: AZ–33 Sycamore Canyon;
Santa Cruz County, Arizona.
Critical habitat Unit AZ–33 is 601 ac
(243 ha) in extent and is an 8-mi (11km)-long continuous segment along
Sycamore Canyon in Santa Cruz County,
Arizona. The entire unit is in Federal
ownership. We have excluded the 60-ft
(18-m) Roosevelt Reservation from this
unit (see Exclusions). The unit is
considered to have been occupied at the
time of listing and western yellow-billed
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cuckoos occupy and nest in this unit
during the breeding season (Corman and
Magill 2000, p. 51; MacFarland and
Horst 2015, pp. 5, 25–26; AGFD 2018,
entire; Sferra et al. 2019, pp. 5, 9;
Cornell Lab of Ornithology 2020 (eBird
data)). This unit is part of the area
within the Southwest portion of the DPS
that provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). Occupied
habitat includes riparian and Madrean
evergreen woodland vegetation
including oak, mesquite, ash, and
juniper (MacFarland and Horst 2015, p.
124). This unit is contained within the
Atascosa Mountains IBA, with western
yellow-billed cuckoos identified as one
of the breeding birds (Arizona IBA
2020a, entire).
Unit 46: AZ–34 Madera Canyon; Pima
and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ–34 is 1,732 ac
(701 ha) in extent and is a 7-mi (11-km)long continuous segment of Madera
Canyon in Pima and Santa Cruz
Counties, Arizona. Approximately 1,419
ac (574 ha) is in Federal ownership, and
313 ac (127 ha) is in other ownership.
The unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
in this unit during the breeding season
(MacFarland and Horst 2015, pp. 99–
100; AGFD 2018, entire; Cornell Lab of
Ornithology 2020 (eBird data); Drost et
al. 2020, pp. 33, 36). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. The drainage
includes riparian, desert scrub, and
Madrean evergreen woodland
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vegetation. This unit is within the Santa
Rita Mountains IBA (National Audubon
Society 2016f, entire), one of the sky
islands in southeastern Arizona.
Overstory vegetation consists of
mesquite, oak, juniper, cottonwood,
hackberry, and sycamore with some
walnut and ash (MacFarland and Horst
2015, pp. 124–125; Service 2020c,
entire).
Unit 47: AZ–35 Montosa Canyon;
Santa Cruz County, Arizona.
Critical habitat Unit AZ–35 is 499 ac
(202 ha) in extent and is a 4-mi (6-km)long continuous segment of Montosa
Canyon in Santa Cruz County, Arizona.
Approximately 496 ac (201 ha) is in
Federal ownership, and 3 ac (1 ha) is in
other ownership. The unit is considered
to have been occupied at the time of
listing and western yellow-billed
cuckoos occupy and nest in this unit
during the breeding season (MacFarland
and Horst 2015, pp. 103–104; Cornell
Lab of Ornithology 2020 (eBird data);
Service 2020c, entire). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. This drainage
includes riparian, desert scrub, and
Madrean evergreen woodland
vegetation. This canyon contains dense
vegetation along the creek that flows
through the bottom of the canyon, and
the sloping vegetated canyon walls
provide additional foraging
opportunities (MacFarland and Horst
2015, p. 103). This unit is within the
Santa Rita Mountains IBA (National
Audubon Society 2016f, entire), one of
the sky islands in southeastern Arizona.
Occupied overstory habitat consists of
oak, mesquite, hackberry, sycamore
(MacFarland and Horst 2015, p. 124).
Unit 48: AZ–36 Patagonia Mountains,
Santa Cruz County, Arizona.
Critical habitat Unit AZ–36 is 1,912 ac
(774 ha) in extent and is an 11-mi (17km)-long segment made up of several
drainages in the Patagonia Mountains in
Santa Cruz County, Arizona.
Approximately 1,059 ac (429 ha) is in
Federal ownership; 8 ac (3 ha) is in
State ownership; and 845 ac (342 ha) is
in other ownership. Western yellow-
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billed cuckoos occupy and nest in the
drainages within this unit along 2.2 mi
(3.5 km) of Harshaw Creek, along 2.1 mi
(3.3 km) of Corral Canyon, and along 1.4
mi (2.2 km) of Hermosa Canyon (AGFD
2018, entire; WestLand Resources, Inc.
2019, entire; Cornell Lab of Ornithology
2020 (eBird data); Drost et al. 2020, pp.
31, 35). This unit was considered
occupied at the time of listing and
western yellow-billed cuckoos occupy
Harshaw Creek and an unnamed
tributary, Hermosa Creek, Goldbaum
Creek, Corral Canyon and two unnamed
tributaries, and Willow Springs Canyon
(WestLand Resources, Inc. 2019, entire).
This unit is part of the area within the
Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor migratory stop-over habitat for
western yellow-billed cuckoos.
The Patagonia Mountains IBA is
within one of southern Arizona’s sky
islands and is composed of Madrean
evergreen woodland habitat dominated
by oak-juniper, oak-pine, and pine oak
communities surrounded by grasslands
and desert (National Audubon Society
2016g, entire). The many canyons and
drainages that cut through these
mountains support riparian and
xeroriparian vegetation. The extent of
the oak-juniper community type habitat,
with sycamores in drainages, is
continuous throughout this range.
Occupied habitat includes varying
amounts of sycamore, cottonwood,
mesquite, oak, juniper, pine, walnut,
desert willow, walnut, mimosa, and
skunkbush (Rhus spp.) (WestLand
Resources, Inc. 2019, entire).
Unit 49: AZ–37 Canelo Hills, Santa
Cruz County
Critical habitat Unit AZ–37 is 2,822 ac
(1,142 ha) in extent and is an 11.5-mi
(18.5-km)-long drainage within Santa
Cruz County, Arizona. Approximately
1,381 ac (559 ha) is in Federal
ownership; 1 ac (< 1 ha) is in State
ownership; and 1,440 ac (583 ha) is in
other ownership. Occupied habitat
includes O’Donnell and Turkey creeks
and Canelo Hills Cienega. This unit is
considered to be occupied at the time of
listing and western yellow-billed
cuckoos occupy and nest in the trees
bordering creeks and cienega wetlands
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during the breeding season (Corman and
Magill 2000, p. 43; AGFD 2018, entire;
Cornell Lab of Ornithology 2020 (eBird
data); Drost et al. 2020, pp. 31, 34;
National Audubon Society 2020b,
entire; Service 2020c, entire). The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). This unit is
part of the area within the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo, which is outside
mainstem rivers and their tributaries as
identified in our conservation strategy.
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. Part
of this unit overlaps with the AppletonWhittell Research Ranch of the National
Audubon Society IBA (National
Audubon Society 2020b, entire).
Stringers of trees along the drainages in
this primarily oak savanna include oak
with some cottonwood, mesquite, and
desert willow (National Audubon
Society 2020b, entire).
Unit 50: AZ–38 Arivaca Lake, Pima
and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ–38 is 1,365 ac
(553 ha) in extent and is a 9-mi (14-km)long continuous segment of stream near
Arivaca Lake in Pima and Santa Cruz
Counties, Arizona. Approximately 567
ac (229 ha) is in Federal ownership; 417
ac (169 ha) is in State ownership; and
381 ac (154 ha) is in other ownership.
The unit is considered to have been
occupied at the time of listing and
western yellow-billed cuckoos occupy
this site regularly during the breeding
season (Corman and Magill 2000, pp.
42–43; MacFarland and Horst 2015, pp.
17–18; AGFD 2018, entire; Cornell Lab
of Ornithology 2020 (eBird data); Drost
et al. 2020, pp. 30, 34). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. This unit is part
of the Arivaca Cienega and Creek IBA
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(National Audubon Society 2013a,
entire). Habitat includes mesquite,
willow, cottonwood, ash, and hackberry
(MacFarland and Horst 2015, p. 121).
Unit 51: AZ–39 Peppersauce Canyon,
Pinal County, Arizona.
Critical habitat Unit AZ–39 is 349 ac
(141 ha) in extent and is a 4-mi (6-km)long continuous segment of stream
within Peppersauce Canyon in Pinal
County, Arizona. Approximately 317 ac
(128 ha) is in Federal ownership, and 32
ac (13 ha) is in other ownership. The
unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoo occupy and breed
in the Madrean evergreen woodland
drainage in the Santa Catalina
Mountains on the Coronado National
Forest (MacFarland and Horst 2015, pp.
53–54; MacFarland and Horst 2017, pp.
47–50; MacFarland and Horst 2019, pp.
30–31; Cornell Lab of Ornithology 2020
(eBird data); Drost et al. 2020, pp. 32,
35). This unit is part of the area within
the Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). This unit is
within the Tucson Mountains Sky
Islands and Sonoran Uplands IBA
(National Audubon Society 2020e,
entire). The drainage includes riparian
and Madrean evergreen woodland
vegetation in occupied habitat
consisting of oak, sycamore, hackberry,
juniper, cottonwood, mesquite, walnut,
and ocotillo (MacFarland and Horst
2015, p. 122; MacFarland and Horst
2016, p. 59).
Unit 52: AZ–40 Pena Blanca Canyon,
Santa Cruz County, Arizona.
Critical habitat Unit AZ–40 is 483 ac
(195 ha) in extent and is a 7-mi (11-km)long continuous segment of stream
within Pena Blanca Canyon in Santa
Cruz County, Arizona. The entire unit is
in Federal ownership. We have
excluded the 60-ft (18-m) Roosevelt
Reservation from this unit (see
Exclusions). Pena Blanca Lake is also
included in this unit. The unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos occupy and nest in this unit
regularly during the breeding season
(Helentjaris 2014, entire; MacFarland
and Horst 2015, pp. 19–22; AGFD 2018,
entire; Cornell Lab of Ornithology 2020
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(eBird data)). This unit is part of the
area within the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo,
which is outside mainstem rivers and
their tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
Pena Blanca Canyon and Lake, in
Coronado National Forest, are part of
the Atascosa Highlands IBA (Arizona
IBA 2020a, entire). The occupied
drainage includes riparian and Madrean
evergreen woodland vegetation
consisting primarily of oak and willow,
with small amounts of juniper,
mesquite, and ash (MacFarland and
Horst 2015, p. 121).
Unit 53: AZ–41 Box Canyon, Pima
County, Arizona.
Critical habitat Unit AZ–41 is 536 ac
(217 ha) in extent and is a 7-mi (11-km)long continuous segment of stream
within Box Canyon in Pima County,
Arizona. Approximately 317 ac (128 ha)
is in Federal ownership; 184 ac (74 ha)
is in State ownership; and 34 ac (14 ha)
is in other ownership. The unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoos are occupying and nesting in
this unit regularly during the breeding
season (Sebesta 2014, entire;
MacFarland and Horst 2015, entire;
MacFarland and Horst 2017, pp. 53–56;
Cornell Lab of Ornithology 2020 (eBird
data); Drost et al. 2020, pp. 13, 15, 31,
33, 35, 36). This unit is within the Santa
Rita Mountains IBA (National Audubon
Society 2016f, entire) (see description
under Unit 43; AZ–31 Florida Wash).
This unit is part of the area within the
Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
drainage includes riparian, desert scrub,
and Madrean evergreen woodland
vegetation in occupied habitat
consisting primarily of mesquite, ash,
ocotillo, willow, oak, sycamore,
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cottonwood, walnut, desert willow,
hackberry, and juniper (MacFarland and
Horst 2015, pp. 124, 129; Service 2020c,
entire).
Unit 54: AZ–42 Rock Corral Canyon,
Santa Cruz County, Arizona.
Critical habitat Unit AZ–42 is 214 ac
(87 ha) in extent and is a 3-mi (5-km)long continuous segment of stream
within Rock Corral Canyon in Santa
Cruz County, Arizona. Approximately
190 ac (77 ha) is in Federal ownership,
and 25 ac (10 ha) is in State ownership.
The unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
in this unit during the breeding season
(MacFarland and Horst 2015, pp. 5, 23–
24; Cornell Lab of Ornithology 2020
(eBird data); Drost et al. 2020, pp. 30,
34). This unit is part of the area within
the Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
unit is part of the Atascosa Highlands
IBA (Arizona IBA 2020a, entire). This
drainage includes riparian, desert scrub,
and Madrean evergreen woodland
vegetation in occupied habitat
composed primarily of mesquite, with
some oak and cottonwood (MacFarland
and Horst 2015, p. 121).
Unit 55: AZ–43 Lyle Canyon, Santa
Cruz and Cochise Counties, Arizona.
Critical habitat Unit AZ–43 is 1,293 ac
(523 ha) in extent and is a 7.5-mi (12km)-long continuous segment of stream
within Lyle Canyon in Santa Cruz and
Cochise Counties, Arizona.
Approximately 716 ac (290 ha) is in
Federal ownership and 577 ac (234 ha)
is in other ownership. The site is
considered occupied at the time of
listing. Western yellow-billed cuckoo
occupy Madrean evergreen woodland
drainages during the breeding season in
Korn and Lyle Canyons (MacFarland
and Horst 2015, pp. 33–36; Drost et al.
2020, p. 31; Service 2020c, entire).
This unit is part of the area within the
Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
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the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over
location. Part of this unit is within
Huachuca Mountains IBA (National
Audubon Society 2013b, entire).
Occupied overstory habitat in Korn
Canyon is dominated by oak and
juniper, with some sycamore and ash
(MacFarland and Horst 2015, pp. 121–
122). Occupied overstory habitat in Lyle
Canyon is dominated by oak and
juniper, with some sycamore, pinion
pine, and walnut in some areas and
dominated by oak in other areas with
cottonwood, mesquite, and desert
willow (MacFarland and Horst 2015, p.
122; National Audubon Society 2013b,
entire).
Unit 56: AZ–44 Parker Canyon Lake,
Santa Cruz and Cochise Counties,
Arizona.
Critical habitat Unit AZ–44 is 1,499 ac
(607 ha) in extent and is a 10.5-mi (16km)-long continuous segment of stream
near Parker Canyon Lake in Santa Cruz
and Cochise Counties, Arizona.
Approximately 1,424 ac (576 ha) is in
Federal ownership, and 75 ac (30 ha) is
in other ownership. The unit is
considered to have been occupied at the
time of listing. Western yellow-billed
cuckoo occupy and nest in Madrean
evergreen woodland drainages during
the breeding season in Collins and
Merrit Canyons (MacFarland and Horst
2015, pp. 27–30, 37–38; Cornell Lab of
Ornithology 2020 (eBird data); Drost et
al. 2020, pp. 31, 34). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. Part of this unit
is within the Huachuca Mountains IBA
(National Audubon Society 2013b,
entire). Dominant overstory vegetation
in occupied habitat in Collins and
Merritt canyons consists of juniper and
oak, with ash, pine, cottonwood, and
walnut (MacFarland and Horst 2015, pp.
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121–122). Merritt Canyon, north of
Parker Canyon Lake, is a shallow and
wide drainage with large trees and
flowing water (MacFarland and Horst
2015, p. 37).
Unit 57: AZ–45 Barrel Canyon, Pima
County, Arizona.
Critical habitat Unit AZ–45 is 920 ac
(372 ha) in extent and is a 5-mi (8-km)long continuous segment of stream
within Barrel Canyon in Pima County,
Arizona. Approximately 755 ac (306 ha)
is in Federal ownership (Coronado
National Forest) and 164 ac (66 ha) is in
other ownership. The unit is considered
to have been occupied at the time of
listing. Western yellow-billed cuckoo
occupy the Madrean evergreen
woodland drainages during the breeding
season (Westland Resources, Inc. 2019,
entire). This unit is part of the area
within the Southwest portion of the DPS
that provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
unit is part of the Santa Rita Mountains
IBA (National Audubon Society 2016f,
entire). Vegetation in occupied habitat is
oak, mesquite, and desert willow, with
an occasional sycamore, walnut,
Goodding’s willow, and juniper.
Unit 58: AZ–46 Gardner Canyon;
Pima and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ–46 is 5,801 ac
(2,056 ha) in extent and is a 14-mi (23km)-long continuous segment of stream
within Gardner Canyon in Pima and
Santa Cruz Counties, Arizona.
Approximately 4,320 ac (1,748 ha) is in
Federal ownership; 290 ac (117 ha) is in
State ownership; and 471 ac (191 ha) is
in other ownership. This unit includes
suitable habitat within BLM’s Las
Cienegas National Conservation Area
(NCA) that connects Coronado National
Forest’s Gardner Canyon with BLM’s
upper Cienega Creek (BLM 2003, entire).
The unit is considered to have been
occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest
in Gardner Canyon during the breeding
season. Cornell Lab of Ornithology 2020
(eBird data); Drost et al. 2020; pp. 15,
33, 35, 36; Service 2020c, entire). This
unit is part of the area within the
Southwest portion of the DPS that
provides breeding habitat for the
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western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
unit is part of the Santa Rita Mountains
IBA and Las Cienegas NCA IBA
(National Audubon Society 2016f,
entire; 2020d, entire). Habitat in
Gardner Canyon is Madrean evergreen
woodland with oak, desert willow,
mesquite, and juniper.
Unit 59: AZ–47 Brown Canyon; Pima
County, Arizona.
Critical habitat Unit AZ–47 is 1,113 ac
(451 ha) in extent and is an 8-mi (13km)-long continuous segment of stream
within Brown Canyon in Pima County,
Arizona. Approximately 726 ac (294 ha)
is in Federal ownership; 228 ac (92 ha)
is in State ownership; and 159 ac (64 ha)
is in other ownership. This site is
considered to have been occupied at the
time of listing. The upper portion of
Brown Canyon and Wash, part of
Buenos Aires National Wildlife Refuge,
is regularly occupied by nesting western
yellow-billed cuckoos during the
breeding season (Flatland 2011, entire;
American Birding Association 2012,
entire; Pima County 2016, p. A–78;
Corson 2018, pp. 11–12; Drost et al.
2020, pp. 30, 31, 34). Western yellowbilled cuckoos are nesting in many
drainages in the Altar Valley, including
several drainages within the San
Bernardino National Wildlife Refuge
that are not being designated as critical
habitat (Service 2020c, entire). This unit
is part of the area within the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo, which is outside
mainstem rivers and their tributaries as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. Brown Canyon
includes a broad mix of dominant plant
species that change with elevation and
topography, including Madrean
evergreen woodland, desert scrub, and
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desert grassland. At lower elevations,
vegetation is predominantly Sonoran
Desert uplands; at higher elevations,
vegetation is predominantly oak
woodlands (Powell and Steidl 2015, p.
68). Vegetation includes a mix of
mesquite, oaks, hackberry, sycamore,
walnut, acacia, mimosa, and juniper in
the drainage with mimosa and grass or
mesquite and grass dominated hillsides
(Powell and Steidl 2015, pp. 67, 69;
Corson 2018, p. 6).
Unit 60: AZ–48 Sycamore Canyon,
Patagonia Mountains; Santa Cruz
County, Arizona.
Critical habitat Unit AZ–48 is 604 ac
(245 ha) in extent and is a 5-mi (8-km)long continuous segment of stream
within Sycamore Canyon in Santa Cruz
County, Arizona. The unit is entirely
within Federal lands within the
Coronado National Forest and is
considered to have been occupied at the
time of listing. Sycamore Canyon is a
well-vegetated riparian corridor in
Madrean evergreen woodland in the
Patagonia Mountains and is occupied by
western yellow-billed cuckoos during
the breeding season (MacFarland and
Horst 2015, pp. 91, 92; Cornell Lab of
Ornithology 2020 (eBird data)). This
unit lies within the Patagonia
Mountains IBA (National Audubon
Society 2016g, entire). This unit is part
of the area within the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo, which is outside mainstem
rivers and their tributaries as identified
in our conservation strategy. The unit
provides the habitat component
provided in PBF 1 and the prey
component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. Dominant
overstory vegetation where western
yellow-billed cuckoos have been found
during surveys was primarily oak, ash,
cottonwood, and mesquite, and
dominant midstory vegetation was
mesquite, Baccharis sp., ash, Mimosa
sp., grape, and skunkbush (Rhus
trilobata) (MacFarland and Horst 2015,
pp. 91, 124, 129).
Unit 61: AZ–49 Washington Gulch;
Santa Cruz County, Arizona.
Critical habitat Unit AZ–49 is 585 ac
(237 ha) in extent and is a 5-mi (8-km)long continuous segment of stream
within Washington Gulch in Santa Cruz
County, Arizona. We have excluded the
60-ft (18-m) Roosevelt Reservation from
this unit (see Exclusions).
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Approximately 361 ac (146 ha) is in
Federal ownership, and 222 ac (90 ha)
is in other ownership. The unit is
considered to have been occupied at the
time of listing. Washington Gulch is a
riparian corridor in Madrean evergreen
woodland in the Patagonia Mountains
in the Coronado National Forest and is
occupied by western yellow-billed
cuckoos during the breeding season
(MacFarland and Horst 2015, pp. 91–94;
Cornell Lab of Ornithology 2020 (eBird
data)). This unit is part of the area
within the Southwest portion of the DPS
that provides breeding habitat for the
western yellow-billed cuckoo, which is
outside mainstem rivers and their
tributaries as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occurs
within this unit (monsoonal events).
The site also provides a movement
corridor and migratory stop-over habitat
for western yellow-billed cuckoos. This
drainage contains an overstory of large
oak trees with some juniper and a
midstory of manzanita and juniper
(MacFarland and Horst 2015; pp. 93,
124, 129). This unit lies within the
Patagonia Mountains IBA.
Unit 62: AZ–50 Paymaster Spring and
Mowrey Wash; Santa Cruz County,
Arizona.
Critical habitat Unit AZ–50 is 903 ac
(365 ha) in extent and is made up of
segments of stream within Paymaster
Spring and Mowrey Wash totaling 5.5
mi (8.8 km) in Santa Cruz County,
Arizona. Approximately 390 ac (158 ha)
is in Federal ownership, and 512 ac (207
ha) is in other ownership. The unit is
considered to have been occupied at the
time of listing. Paymaster Creek is a
riparian corridor in Madrean evergreen
woodland in the Patagonia Mountains
in the Coronado National Forest and is
occupied by western yellow-billed
cuckoos during the breeding season
(MacFarland and Horst 2015, p. 89;
Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c, entire). This unit is
part of the area within the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo, which is outside
mainstem rivers and their tributaries as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occurs within this
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unit (monsoonal events). The site also
provides a movement corridor and
migratory stop-over habitat for western
yellow-billed cuckoos. This drainage
includes riparian and Madrean
evergreen woodland vegetation
including oak, walnut, juniper, and
some pine as the most dominant tree
species where western yellow-billed
cuckoos were detected during surveys
(MacFarland and Horst 2015, p. 123;
WestLand Resources, Inc. 2019, entire).
This unit lies within the Patagonia
Mountains IBA.
Unit 63: CA–1 Sacramento River;
Colusa, Glenn, Butte, and Tehama
Counties, California.
Critical habitat unit CA–1 is 34,201 ac
(13,841 ha) in extent and is a 69-mi
(111-km)-long continuous segment of
the Sacramento River starting 5 mi (8
km) southeast of the city of Red Bluff in
Tehama County, California, to the
downstream boundary of the ColusaSacramento River State Recreation Area
next to the town of Colusa in Colusa
County, California. Approximately
2,123 ac (859 ha) is in Federal
ownership; 485 ac (196 ha) is in State
ownership; and 31,593 ac (12,785 ha) is
in other ownership. The unit is
considered to have been occupied at the
time of listing. This site has been a
significant nesting area (nearly 100
nesting pairs in early 1970s) for the
western yellow-billed cuckoo in the past
but has been in decline (Dettling and
Howell 2011a, pp. 30–35; Dettling and
Howell 2011b, entire; Dettling et al.
2015, p. 2). This unit is part of the area
outside the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo that is
in a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. Survey efforts in the early
1970s detected approximately 3 western
yellow-billed cuckoo detections per day
(60–96 nesting pairs). In the late 1980s
this number dropped to less than 1.5 per
day (35 nesting pairs) and in 2012 the
survey efforts identified 1 to less than 1
sighting per day (28 nesting pairs)
(Dettling et al. 2015, pp. 11–13). It is an
important area to maintain for
occupancy to promote species recovery.
Unit 64: CA–2 South Fork Kern River
Valley; Kern County, California.
Critical habitat Unit CA–2 is 2,379 ac
(963 ha) in extent and is a 13-mi (21km)-long continuous segment of the
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South Fork Kern River from west of the
settlement of Canebrake downstream to
near Lake Isabella in Kern County,
California. We have excluded
approximately 261 ac (108 ha) of land
from this unit (see Exclusions).
Approximately 85 ac (34 ha) is Federal
land, 419 ac (170 ha) is State land; and
1,875 ac (756 ha) is in other ownership.
The unit is considered to have been
occupied at the time of listing. This unit
is part of the area outside the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo that is in a different
ecological setting as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
flows and flood timing. The site also
provides a stop-over area or movement
corridor between western yellow-billed
cuckoos breeding on the Colorado River
and the Sacramento River. Much of the
privately owned land is owned and
managed by Audubon California as the
Kern River Preserve. Numbers of
breeding western yellow-billed cuckoos
have been relatively consistent at this
site. The habitat at this site is improving
based on reduction of cattle grazing and
habitat restoration activities.
Unit 65: ID–1 Snake River 1; Bannock
and Bingham Counties, Idaho.
Critical habitat unit ID–1 is 5,632 ac
(2,276 ha) in extent and is a continuous
segment of the Snake River from near
the upstream end of the American Falls
Reservoir in Bannock County upstream
to a point on the Snake River
approximately 2 mi (3 km) west of the
Town of Blackfoot in Bingham County,
Idaho. We have excluded approximately
4,023 ac (1,633 ha) of land from this
unit (see Exclusions). Approximately
2,863 ac (1,158 ha) is in Federal
ownership; 1,209 ac (489 ha) is in State
ownership; and 1,551 ac (628 ha) is in
other ownership. The unit is considered
to have been occupied at the time of
listing and is consistently occupied by
western yellow-billed cuckoos during
the breeding season. This unit is part of
the area outside the Southwest portion
of the DPS that provides breeding
habitat for the western yellow-billed
cuckoo that is in a different ecological
setting as identified in our conservation
strategy. The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
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identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The unit is at the northern
limit of the species’ current breeding
range.
Unit 66: ID–2 Snake River 2;
Bonneville, Madison, and Jefferson
Counties, Idaho.
Critical habitat unit ID–2 is 11,442 ac
(4,630 ha) in extent and is a 40-mi (64km)-long continuous segment of the
Snake River from the bridge crossing on
the Snake River 2 mi (3 km) east of the
Town of Roberts in Madison County
through Jefferson County and upstream
to the vicinity of the mouth of Table
Rock Canyon in Bonneville County,
Idaho. Approximately 5,862 ac (2,372
ha) is in Federal ownership; 1,940 ac
(785 ha) is in State ownership; and
3,641 ac (1,473 ha) is in other
ownership. Portions of this unit are
within lands designated as the Snake
River ACEC by BLM, and the Land and
Water Conservation Fund (LWCF)
program has purchased 32 properties in
fee title and set aside approximately 42
conservation easements (22,400 ac
(9,065 ha)) within the ACEC. The
western yellow-billed cuckoo has been
identified as a species of concern in the
ACEC. The unit is considered to have
been occupied at the time of listing and
is consistently occupied by western
yellow-billed cuckoos during the
breeding season. This unit is part of the
area outside the Southwest portion of
the DPS that provides breeding habitat
for the western yellow-billed cuckoo
that is in a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. State and County road
crossings account for less than 1 percent
of total ownership of this proposed unit.
The unit is at the northern limit of the
species’ current breeding range.
Unit 67: ID–3 Henry’s Fork and Teton
Rivers; Madison and Fremont Counties,
Idaho.
Critical habitat Unit ID–3 is 4,641 ac
(1,878 ha) in extent and is a 15-mi (24km)-long continuous segment of the
Henry’s Fork of the Snake River in
Madison County from approximately 16
km (10 mi) upstream of the confluence
with the Snake River to a point on the
river approximately 1.6 km (1 mi)
downstream of the town of St. Anthony
in Fremont County, Idaho.
Approximately 756 ac (306 ha) is in
Federal ownership; 511 ac (207 ha) is in
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State ownership; and 3,374 ac (1,365 ha)
is in other ownership. This unit is
occupied by western yellow-billed
cuckoos during the breeding season and
represents the northern limit of the
species’ currently known breeding
range. This unit is part of the area
outside the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo that is
in a different ecological setting as
identified in our conservation strategy.
The unit contains all the physical or
biological features essential to the
conservation of the species and was
occupied at the time of listing and is
still considered occupied. Inclusion of
this unit contributes to the proposed
critical habitat designation representing
the full breeding range of the DPS. New
comments by the American Bird
Conservancy during the previous
comment period, along with survey and
habitat information previously
submitted by the BLM and Idaho
Department of Fish and Game, show
western yellow-billed cuckoos in the
expanded area. In response to the
comments and new information
received, we are amending the
previously proposed boundaries of this
unit to incorporate additional habitat
upstream to approximately 1.6 km (1
mi) downstream of the town of St.
Anthony, Fremont County, Idaho.
Portions of this unit were removed
based on our reevaluation of the habitat.
Unit 68: CO–1 Colorado River; Mesa
County, Colorado.
Critical habitat unit CO–1 is 3,137 ac
(1,269 ha) in extent and is a 25-mi (40km)-long continuous segment of the
Colorado River in the vicinity of Grand
Junction in Mesa County, Colorado. We
have excluded approximately 866 ac
(351 ha) of land from this unit (see
Exclusions). Approximately 196 ac (79
ha) is in Federal ownership; 174 ac (70
ha) is in State ownership; and 2,766 ac
(1,119 ha) is in other ownership. The
unit is considered to have been
occupied at the time of listing and
occurs within the unit in the breeding
season. This unit is part of the area
outside the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo that is
in a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
migration stop-over habitat for western
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yellow-billed cuckoos moving farther
north. The Colorado River Wildlife
Management Area managed by the U.S.
Fish and Wildlife Service holds
conservation easements on several
private parcels in this unit.
Unit 69: CO–2 North Fork Gunnison
River; Delta County, Colorado.
Critical habitat unit CO–2 is 2,326 ac
(941 ha) in extent and is a 16-mi (26km)-long continuous segment of the
North Fork of the Gunnison River
between Hotchkiss and Paeonia in Delta
County, Colorado. Approximately 115
ac (47 ha) is in Federal ownership, and
2,211 ac (895 ha) is in other ownership.
This unit is considered to have been
occupied at the time of listing and is
consistently used by western yellowbilled cuckoos during the breeding
season. This unit is part of the area
outside the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo that is
in a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides
migratory stop-over habitat for western
yellow-billed cuckoos moving farther
north.
Unit 70: UT–1 Green River 1; Uintah
and Duchesne Counties, Utah.
Critical habitat unit UT–1 is 13,273 ac
(5,371 ha) in extent and is made up of
segments of the Green River and
Duchesne Rivers in the vicinity of
Ouray in Uintah County, Utah. We have
excluded approximately 15,017 ac
(6,077 ha) of land from this unit (see
Exclusions). Approximately 4,700 ac
(1,902 ha) is in Federal ownership;
4,162 ac (1,684 ha) is in State
ownership; and 4,411 ac (1,785 ha) is in
other ownership. The unit is considered
to have been occupied at the time of
listing and has been consistently used
by western yellow-billed cuckoos
during the breeding season. This unit is
part of the area outside the Southwest
portion of the DPS that provides
breeding habitat for the western yellowbilled cuckoo that is in a different
ecological setting as identified in our
conservation strategy. The unit provides
the habitat component provided in PBF
1 and the prey component in PBF 2.
Hydrologic processes, in natural or
altered systems, that provide for
maintaining and regenerating breeding
habitat as identified in PBF 3 occur
within this unit but depend on river
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flows and flood timing. The site also
provides a movement corridor for
western yellow-billed cuckoos moving
farther north. This unit includes areas of
riparian vegetation that area suitable as
western yellow-billed cuckoo breeding
habitat and connected areas of riparian
vegetation that are suitable as foraging
habitat. Recent surveys in this area
revealed multiple western yellow-billed
cuckoo detections.
Unit 71: UT–2 Green River 2; Emery
and Grand Counties, Utah.
Critical habitat Unit UT–2 is 1,135 ac
(459 ha) in extent and is an 8-mi (13km)-long continuous segment of the
Green River north of the town of Green
River in Emery and Grand Counties,
Utah. Approximately 40 ac (16 ha) is in
Federal ownership; 632 ac (256 ha) is in
State ownership; and 462 ac (187 ha) is
in other ownership. The unit is
considered to have been occupied at the
time of listing. Recent surveys have
shown that this unit has a number of
western yellow-billed cuckoos during
the breeding season (Utah Division of
Wildlife Resources (UDWR) 2012,
entire; UDWR 2013, entire; UDWR 2014,
entire). This unit is part of the area
outside the Southwest portion of the
DPS that provides breeding habitat for
the western yellow-billed cuckoo that is
in a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides
migratory stop-over habitat for western
yellow-billed cuckoos. This unit
includes areas of riparian vegetation
that are suitable as western yellowbilled cuckoo breeding habitat and
connected areas of riparian vegetation
that are suitable as foraging habitat.
Unit 72: TX–1 Terlingua Creek and
Rio Grande; Brewster County, Texas.
Critical habitat unit TX–1 is 7,913 ac
(3,202 ha) in extent and is a 45-mi (72km)-long continuous segment from
lower Terlingua Creek to the Rio Grande
in Brewster County, Texas.
Approximately 7,792 ac (3,153 ha) is in
Federal ownership in Big Bend National
Park, and 121 ac (49 ha) is in other
ownership. Because this unit is along
the border between United States and
Mexico, we delineated the southern
edge of the unit to coincide with the
National Park boundary. The unit is
considered to have been occupied at the
time of listing and has been consistently
occupied by western yellow-billed
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cuckoos during the breeding season.
This unit is part of the area outside the
Southwest portion of the DPS that
provides breeding habitat for the
western yellow-billed cuckoo that is in
a different ecological setting as
identified in our conservation strategy.
The unit provides the habitat
component provided in PBF 1 and the
prey component in PBF 2. Hydrologic
processes, in natural or altered systems,
that provide for maintaining and
regenerating breeding habitat as
identified in PBF 3 occur within this
unit but depend on river flows and
flood timing. The site also provides a
north-south movement corridor for
western yellow-billed cuckoos breeding
farther north. Although tamarisk, a
nonnative species that may reduce the
habitat’s value, is a major component of
this unit, the area still provides habitat
for the species and considered essential.
This unit includes areas of riparian
vegetation that are suitable as western
yellow-billed cuckoo breeding habitat
and connected areas of riparian
vegetation that are suitable as foraging
habitat.
In our review of all units along the
U.S./Mexico border, we also reviewed
Unit 72 (TX–1 Terlingue Creek/Rio
Grande). Unit 72 occurs along the
border mostly in Big Bend National Park
and includes Santa Elena Canyon and
several other heavily used public use
areas along the National Park’s southern
boundary in Brewster County, Texas.
The NPS manages the land and natural
resources at Big Bend National Park,
and western yellow-billed cuckoo have
been observed on a regular basis at
Cottonwood Campground at Santa Elena
Canyon and the area provides
significant value as breeding habitat for
the species. Flow of the Rio Grande
within this unit is persistent which
supports relatively intact riparian
vegetation along this section of the river.
Designation of critical habitat here
highlights the conservation needs of the
western yellow-billed cuckoo and Rio
Grande riparian communities to the
general public and Federal partners.
Because management of natural
resource and sensitive species are
conducted by the NPS within this unit,
Texas does not include the Roosevelt
Reservation, and any border activities
would need to be coordinated with NPS,
we did not consider the exclusion of
areas within Unit 72.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
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authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. The
western yellow-billed cuckoo occupies
habitat during the breeding season
(generally between May-September);
consequently, Federal actions
conducted during the breeding season
must ensure that the actions do not
jeopardize the western yellow-billed
cuckoo. Additionally, Federal activities
occurring within or outside those areas
during the non-breeding season
(October-April) must also ensure that
the actions do not jeopardize the species
by focusing on impacts to habitat.
We published a final rule revising the
definition of destruction or adverse
modification on August 27, 2019 (84 FR
44976). Destruction or adverse
modification means a direct or indirect
alteration that appreciably diminishes
the value of critical habitat as a whole
for the conservation of a listed species.
Such alterations may include, but are
not limited to, those that alter the
physical or biological features essential
to the conservation of a species or that
preclude or significantly delay
development of such features.
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. Examples of actions that are
subject to the section 7 consultation
process are actions on State, tribal,
local, or private lands that require a
Federal permit (such as a permit from
the Corps under section 404 of the Clean
Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section
10 of the Act) or that involve some other
Federal action (such as funding from the
Federal Highway Administration,
Federal Aviation Administration, or the
Federal Emergency Management
Agency). Federal actions not affecting
listed species or critical habitat—and
actions on State, tribal, local, or private
lands that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation.
As a result of section 7 consultation,
we document compliance with the
requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, listed species or critical
habitat.
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When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Service Director’s
opinion, avoid the likelihood of
jeopardizing the continued existence of
the listed species and/or avoid the
likelihood of destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth
requirements for Federal agencies to
reinitiate consultation on previously
reviewed actions to address certain
circumstances and where the Federal
agency has retained discretionary
involvement or control over the action
(or the agency’s discretionary
involvement or control is authorized by
law). Consequently, Federal agencies
sometimes may need to request
reinitiation of consultation with us on
actions for which formal consultation
has been completed.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species. Activities that may destroy or
adversely modify critical habitat are
those that result in a direct or indirect
alteration that appreciably diminishes
the value of critical habitat for the
conservation of the western yellowbilled cuckoo. Such alterations may
include, but are not limited to, those
that alter the physical or biological
features essential to the conservation of
these species or that preclude or
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significantly delay development of such
features. As discussed above, the role of
critical habitat is to support physical or
biological features essential to the
conservation of a listed species and
provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
violate section 7(a)(2) of the Act by
destroying or adversely modifying such
habitat, or that may be affected by such
designation.
Activities that may affect critical
habitat, when carried out, funded, or
authorized by a Federal agency, should
result in consultation for the western
yellow-billed cuckoo. These activities
include, but are not limited to:
(1) Actions that would remove, thin,
or destroy riparian western yellowbilled cuckoo habitat, without
implementation of an effective riparian
restoration plan that would result in the
development of riparian vegetation of
equal or better quality in abundance and
extent. Such activities could include,
but are not limited to, removing,
thinning, or destroying riparian
vegetation by mechanical (including
controlled fire), chemical, or biological
(poorly managed biocontrol agents)
means. These activities could reduce the
amount or extent of riparian habitat
needed by western yellow-billed
cuckoos for sheltering, feeding,
breeding, and dispersing.
(2) Actions that would appreciably
diminish habitat value or quality
through direct or indirect effects. These
activities could permanently eliminate
available riparian habitat and food
availability or degrade the general
suitability, quality, structure,
abundance, longevity, and vigor of
riparian vegetation. Such activities
could include, but are not limited to:
Spraying of pesticides that would
reduce insect prey populations within
or adjacent to riparian habitat;
introduction of nonnative plants,
animals, or insects; habitat degradation
from recreational activities; and
activities such as water diversions or
impoundments that would result in
diminished or altered riverflow regimes,
groundwater extraction activities, dam
construction and operation activities, or
any other activity that negatively
changes the frequency, magnitude,
duration, timing, or abundance of
surface flow. These activities have the
potential to reduce or fragment the
quality or amount or extent of riparian
habitat needed by western yellow-billed
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cuckoos for sheltering, feeding,
breeding, and dispersing.
As we understand the ongoing
existing water management operations,
they are not of the magnitude that
would cause destruction or adverse
modification of critical habitat. If
discretion exists to modify these plans
and if reinitiation of consultation on
these plans becomes necessary,
according to our regulations at 50 CFR
402.16, we would evaluate the effects
according to the modification. If
reinitiation of consultation becomes
necessary, the environmental baseline,
as defined in 50 CFR 402.02, would
include the past and present impacts of
all Federal, State, or private actions and
other human activities in the action
area, the anticipated impacts of all
proposed Federal projects in the action
area that have already undergone formal
or early section 7 consultation, and the
impact of State or private actions which
are contemporaneous with the
consultation in process. To the extent
agencies propose to modify their actions
in a manner that does not appreciably
diminish the value of the critical habitat
as a whole for the western yellow-billed
cuckoo, it is unlikely that these
activities would meet the definition of
destruction or adverse modification of
critical habitat under the Act.
(3) Actions that would permanently
destroy or alter western yellow-billed
cuckoo habitat. Such activities could
include, but are not limited to,
discharge of fill material, draining,
ditching, tiling, pond construction, and
stream channelization (due to roads,
construction of bridges, impoundments,
discharge pipes, stormwater detention
basins, dikes, levees, and other things).
These activities could permanently
eliminate available riparian habitat and
food availability or degrade the general
suitability, quality, structure,
abundance, longevity, and vigor of
riparian vegetation and microhabitat
components necessary for nesting,
migrating, food, cover, and shelter.
(4) Actions that would result in
alteration of western yellow-billed
cuckoo habitat from management of
livestock or ungulates (for example,
horses, burros). Such activities could
include, but are not limited to,
unrestricted ungulate access and use of
riparian vegetation; excessive ungulate
use of riparian vegetation during the
nongrowing season (for example, leaf
drop to bud break); overuse of riparian
habitat and upland vegetation due to
insufficient herbaceous vegetation
available to ungulates; and improper
herding, water development, or other
livestock management actions. These
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activities could reduce the volume and
composition of riparian vegetation,
prevent regeneration of riparian plant
species, physically disturb nests, alter
floodplain dynamics, alter watershed
and soil characteristics, alter stream
morphology, and facilitate the growth of
flammable nonnative plant species.
(5) Actions in relation to the Federal
highway system, which could include,
but are not limited to, new road
construction and right-of-way
designation. These activities could
eliminate or reduce riparian habitat
along river crossings necessary for
reproduction, sheltering, or growth of
the western yellow-billed cuckoo.
(6) Actions that would involve
funding and/or implementation of
activities associated with cleaning up
Superfund sites, erosion control
activities, flood control activities,
communication towers, solar arrays, and
border walls or fences. These activities
could eliminate or reduce habitat for the
western yellow-billed cuckoo.
(7) Actions that would affect waters of
the United States under section 404 of
the Clean Water Act. Such activities
could include, but are not limited to,
placement of fill into wetlands. These
activities could eliminate or reduce the
habitat necessary for the reproduction,
feeding, or growth of the western
yellow-billed cuckoo.
Finally, we note that for any of the
seven categories of actions outlined
above, we and the relevant Federal
agency may find that the agency’s
anticipated actions affecting critical
habitat may be appropriate to consider
programmatically in section 7
consultation. Programmatic
consultations can be an efficient method
for streamlining the consultation
process, addressing an agency’s
multiple similar, frequently occurring,
or routine actions expected to be
implemented in a given geographic area.
Programmatic section 7 consultation can
also be conducted for an agency’s
proposed program, plan, policy, or
regulation that provides a framework for
future proposed actions. We are
committed to responding to any
agency’s request for a programmatic
consultation, when appropriate and
subject to the approval of the Director,
as a means to streamline the regulatory
process and avoid time-consuming and
inefficient multiple individual
consultations.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that the
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Secretary shall not designate as critical
habitat any lands or other geographical
areas owned or controlled by the
Department of Defense, or designated
for its use, that are subject to an
integrated natural resources
management plan (INRMP) prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.
There are no Department of Defense
(DoD) lands with a completed INRMP
within the final critical habitat
designation.
Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if he determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making the determination to
exclude a particular area, the statute on
its face, as well as the legislative history,
are clear that the Secretary has broad
discretion regarding which factor(s) to
use and how much weight to give to any
factor.
When identifying the benefits of
inclusion for an area, we consider the
additional regulatory benefits that area
would receive due to the requirement
that protection from destruction of
adverse modification as a result of
actions with a Federal nexus avoid
destruction or adverse modification of
the habitat; the educational benefits of
increasing public awareness and
educational benefits of the presence of
western yellow-billed cuckoo; the
recovery benefits of mapping the
location of habitat that is essential
habitat for recovery of the listed species,
and importance of habitat protection;
and any additional benefits that may
result from a designation due to State or
Federal laws that may apply to critical
habitat, including protection from
destruction or adverse modification of
critical habitat.
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When identifying the benefits of
exclusion, we consider, among other
things, whether exclusion of a specific
area is likely to result in conservation or
in the continuation, strengthening, or
encouragement of partnerships.
Additionally, continued
implementation of an ongoing
management plan or implementation of
a new management plan that would not
be implemented if critical habitat were
designated that provides conservation
that is equal to or more than the
conservation that a critical habitat
designation provides would reduce the
benefits of including that specific area
in the critical habitat designation.
We evaluate the existence of a
conservation plan when considering the
benefits of inclusion and exclusion. We
consider a variety of factors, including
but not limited to, whether the plan is
finalized; how it provides for the
conservation of the essential physical or
biological features; whether there is a
reasonable expectation that the
conservation management strategies and
actions contained in a management plan
will be implemented into the future;
whether the conservation strategies in
the plan are likely to be effective;
whether the public participated in the
development of the conservation plan;
the degree of agency review and
required determinations, including
compliance with the National
Environmental Policy Act (NEPA; 42
U.S.C. 4231 et seq.), that were
completed; and whether the plan
contains a monitoring program or
adaptive management to ensure that the
conservation measures are effective and
can be adapted in the future in response
to new information. See our February
11, 2016, Policy on Exclusions for a
complete discussion of our exclusion
process (81 FR 7226).
After identifying the benefits of
inclusion and the benefits of exclusion,
we carefully weigh the two sides to
evaluate whether the benefits of
exclusion outweigh the benefits of
inclusion. If our analysis indicates that
the benefits of exclusion outweigh the
benefits of inclusion, we then determine
whether exclusion would result in
extinction of the species. If exclusion of
an area from critical habitat will result
in extinction, we will not exclude it
from the designation.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. In order to consider economic
impacts, we prepared an incremental
effects memorandum (IEM) and
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screening analysis which, together with
our narrative and interpretation of
effects we consider our draft economic
analysis of the critical habitat
designation and related factors (IEc
2020, entire). We made the analysis,
dated February 5, 2020, available for
public review from February 27, 2020,
through April 27, 2020. The DEA
addressed probable economic impacts of
critical habitat designation for the
western yellow-billed cuckoo.
Following the close of the comment
period, we reviewed and evaluated all
information submitted during the
comment period that may pertain to our
consideration of the probable
incremental economic impacts of this
critical habitat designation. Additional
information relevant to the probable
incremental economic impacts of
critical habitat designation for the
western yellow-billed cuckoo is
summarized below and available in the
screening analysis for the western
yellow-billed cuckoo (IEc 2020, entire),
available at https://www.regulations.gov.
In our screening memo, which was
based on our 2013 and 2019 review of
potential economic impacts and
comments received on our analysis
established that the primary expected
impact from the critical habitat
designation would be the additional
analysis to consider adverse
modification of critical habitat (and not
just jeopardy). While additional analysis
for critical habitat in a consultation will
require time and resources by both the
Federal action agency and the Service,
in most circumstances, these additional
analyses would be predominantly
administrative in nature and would not
incur significant costs. Our screening
analysis also includes discussion of
other incremental impacts that may be
triggered by this action that in turn may
result in costs or benefits—such as,
additional permitting requirements or
changes in public perception. However,
those impacts are uncertain, and some
of the data necessary for a full
assessment of those costs and benefits
are lacking. We recognize that changes
in land value are possible. But because
the magnitude and timing are uncertain,
the best assessment of these possible
impacts is to conduct a bounding
analysis of the total possible land value
costs and benefits of developable land
within the critical habitat designation.
The critical habitat designation for the
western yellow-billed cuckoo includes
63 units in 7 western States: Arizona,
California, Colorado, Idaho, New
Mexico, Texas, and Utah. A total of
298,845 ac (120,939 ha) is being
designated after excluding or removing
194,820 ac (78,840 ha). Approximately
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35 percent of the proposed total acreage
is Federal land, 11 percent is State land,
and 54 percent is privately owned or
owned by local government entities. No
Tribal lands are being designated. All
critical habitat units are considered to
be occupied.
The entities most likely to incur
incremental costs are parties to section
7 consultations, including Federal
action agencies and, in some cases, third
parties, most frequently State agencies
or municipalities. Activities we expect
would be subject to consultations that
may involve private entities as third
parties are residential and commercial
development that may occur on Tribal
or private lands. However, all Tribal
lands have been excluded and based on
coordination efforts State and local
agencies, the cost to private entities
within these sectors is expected to be
relatively minor (administrative costs of
less than $5,200 per formal consultation
effort) and, therefore, would not be
significant.
The probable incremental economic
impacts of the western yellow-billed
cuckoo critical habitat designation are
expected to be limited to additional
administrative effort, as well as minor
costs of conservation efforts resulting
from a small number of future section 7
consultations. This low level of impacts
is anticipated because, given that the
critical habitat is occupied by the
species, actions that may adversely
modify the critical habitat would also
likely jeopardize the continued
existence of the species; as a result,
other than administrative costs,
incremental economic impacts of
critical habitat designation over and
above impacts from consulting for
jeopardy are unlikely. At approximately
$5,200 or less per formal consultation,
in order to reach the threshold of $100
million of incremental administrative
impacts in a single year, Federal
agencies would need to undertake more
than 20,000 formal consultations in a
single year. In our 2020 economic
screening memo, we identified 16
formal consultations initiated for the
western yellow-billed cuckoo since
listing. The resulting incremental
economic burden is estimated to be less
than $74,000 in a given year (IEc 2019,
entire). This estimate calculated the
administrative cost (staff time) the
Federal agency would need to expend
on its analysis of adverse modification
of critical habitat for each consultation.
As discussed above, we recognize that
changes in land value are possible.
Because the magnitude and timing are
uncertain, we conducted a bounding
analysis of the per-acre land values for
undeveloped properties within the
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designation that may be subject to
development pressure in the foreseeable
future. Public perception of the effect of
critical habitat may diminish land
values by some percent of these total
values. Data limitations prevent us from
estimating the size of this percent
reduction. However, any diminishment
in property value cannot exceed the
total value of the property. The
bounding analysis indicates that
approximately 287 acres of developable
land are located within census tracts
overlapping the proposed designation
with population densities greater than
1,000 people per square mile. If public
perception causes the value of critical
habitat acres to be diminished, these
acres are those most likely to be
affected. Due to existing data limitations
regarding the probability that such
effects will occur, and the likely degree
to which property values will be
incrementally affected by this
designation (above and beyond potential
perceptional effects resulting from the
presence of the cuckoo and the
flycatcher, as well as flycatcher critical
habitat), we are unable to estimate the
magnitude of perception-related costs
resulting from this designation.
However, the cost cannot exceed the
total value of affected properties. Our
bounding analysis estimates the total
value of developable land within the
proposed critical habitat to be $20.3
million. Therefore, we have concluded
that the future probable incremental
economic impacts based on the value of
developable land in the vicinity of the
proposed designation, the combined
total of section 7 and other possible
costs and benefits are unlikely to exceed
$100 million in any single year, and
impacts to any specific geographic area
or sector as a result of this critical
habitat designation are also unlikely.
Exclusions
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Exclusions Based on Economic Impacts
The Service considered the economic
impacts of the critical habitat
designation as described above. Based
on this information, the Secretary has
determined not to exercise his
discretion to exclude any areas from this
designation of critical habitat for the
western yellow-billed cuckoo based on
economic impacts.
Exclusions Based on Impacts on
National Security and Homeland
Security
Section 4(a)(3)(B)(i) of the Act may
not cover all DoD lands or areas that
pose potential national-security
concerns (e.g., a DoD installation that is
in the process of revising its INRMP for
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a newly listed species or a species
previously not covered). If a particular
area is not covered under section
4(a)(3)(B)(i), national-security or
homeland-security concerns are not a
factor in the process of determining
what areas meet the definition of
‘‘critical habitat.’’ Nevertheless, when
designating critical habitat under
section 4(b)(2), the Service must
consider impacts on national security,
including homeland security, on lands
or areas not covered by section
4(a)(3)(B)(i). Accordingly, the Policy on
Exclusions makes clear that we will
always consider for exclusion from the
designation areas for which DoD,
Department of Homeland Security
(DHS), or another Federal agency has
requested exclusion based on an
assertion of national-security or
homeland-security concerns (see Policy
on Exclusions (81 FR 7226)).
We cannot, however, automatically
exclude requested areas. First, when we
adopted the policy on exclusion, we
explained that, when DoD, DHS, or
another Federal agency requests
exclusion from critical habitat on the
basis of national-security or homelandsecurity impacts, it must provide a
reasonably specific justification of an
incremental impact on national security
that would result from the designation
of that specific area as critical habitat.
That justification could include
demonstration of probable impacts, or a
delay in training or facility construction,
as a result of compliance with section
7(a)(2) of the Act. If the agency
requesting the exclusion does not
provide us with a reasonably specific
justification, we will contact the agency
to recommend that it provide a specific
justification or clarification of its
concerns relative to the probable
incremental impact that could result
from the designation.
Second, even if the agency provides a
reasonably specific justification, the
result is not that we automatically
exclude the area, but rather that we
undertake an exclusion analysis to
determine whether or not to exclude the
area. In undertaking that exclusion
analysis, we will defer to the expert
judgment and give great weight to
national-security and homeland-security
concerns of DoD, DHS, or another
Federal agency as outlined in our policy
(81 FR 7226).
Department of Army—Yuma Proving
Grounds and Department of Air Force—
Luke Air Force Base
Under section 4(b)(2) of the Act, we
consider whether there are lands owned
or managed by the DoD where a
national-security impact might exist. We
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received comments from the
Department of the Army and
Department of the Air Force requesting
exclusion of areas used by the Army and
Air Force for training operations based
on national security or other military
operations. The comments were from
the Yuma Proving Grounds (Department
of the Army 2014a, entire) and the Luke
Air Force Base (Department of the Air
Force 2014, entire) concerning airspace
above critical habitat; however, the
actions described by the two
installations (overflight of critical
habitat areas) do not directly or
indirectly affect the physical or
biological features of critical habitat for
the western yellow-billed cuckoo; thus,
they would not require consideration of
adverse modification of the critical
habitat. Consequently, national security
activities carried out by the Army
operations at Fort Yuma or operations
by Luke Air Force Base will not be
disrupted as a result of designation of
critical habitat. Therefore, we are
including these areas in our critical
habitat designation.
Department of Army—Fort Huachuca
We also received comments from the
U.S. Army installation at Fort Huachuca
requesting that areas outside the
installation in Unit 16 (AZ–14) that
includes the San Pedro Riparian
National Conservation Area (SPRNCA)
be excluded from the final designation
(U.S. Department of the Army 2014b,
entire). Unit 16 is managed by the BLM
and composed of Federal, State, and
private lands and not owned by the DoD
or part of the lands managed under the
Fort Huachuca’s INRMP or used for
training. The Army’s rationale for the
requested exclusion was that any
additional restrictions to ground water
pumping and water usage could affect
their ability to increase staffing when
needed or carry out missions critical to
national security. The Army also stated
that designation of lands within the
SPRNCA would increase its regulatory
burden and disrupt its operations
related to national security but provided
no specific examples or information
supporting or explaining these claims
either through its comments or during
our meetings with them after the revised
proposed rule was issued. The Army
pointed to its continued land
stewardship actions and its commitment
to protecting natural resources on the
base.
As stated above, the lands within Unit
16 (AZ–14) are primarily owned and
managed by BLM. Declining base flow
and habitat loss in the San Pedro River
due anthropogenic factors, drought, and
climate change has long been a concern
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to landowners and communities in and
near this unit. In addition, the
November 2013 Fort Huachuca Revised
Biological Assessment (BA) on its
operations, titled Programmatic
Biological Assessment for Ongoing and
Future Military Operations and
Activities at Fort Huachuca, Arizona,
(U.S. Department of the Army 2013, p.
5–28), states that ‘‘Fort-attributable
groundwater use is unlikely to affect the
yellow-billed cuckoo (proposed for
listing at the time) or its habitat where
the species is known to occur in the
SPRNCA, Babocomari Cienega, or the
lower San Pedro River. . . .’’ The Fort
subsequently states that a modeled
decline in baseflow to the lower
Babocomari River downstream could
exist by 2030 (U.S. Department of the
Army 2013, p. 5–28). The BA concludes
there will be no adverse effect on
western yellow-billed cuckoo or its
habitat from Fort Huachuca’s
operational actions or ground water
pumping. Within the Service’s
subsequent 2014 biological and
conference opinion under section 7 of
the Act, we issued a conference report
concluding that Fort Huachuca’s
operational activities and groundwater
pumping as related to the SPRNCA,
Babocomari Cienega, the lower San
Pedro River, or the lower Babocomari
River were not likely to adversely affect
western yellow-billed cuckoo (NLAA)
(Service 2014c, pp. 300–306).
However, although the Fort’s water
conservation measures are intended to
avoid, minimize, and/or offset the
effects of water use to the Upper San
Pedro River Unit, they also do not
constitute a western yellow-billed
cuckoo conservation plan or prevent
water use or habitat loss by other
entities affecting this unit. The Fort’s
water conservation actions are not
sufficient to protect the San Pedro River
critical habitat from ongoing and future
actions that threaten to reduce flow and
western yellow-billed cuckoo suitable
habitat in this large unit. The Fort does
not manage or control lands covered by
this unit and ground water use is only
one component of western yellow-billed
cuckoo PBFs. The Service has engaged
in several Section 7 consultations on
proposed actions that may affect
western yellow-billed cuckoo habitat
but for which the Fort has no
management authority including
herbicide treatment, fire management,
grazing, exotic plant control, mesquite
(breeding habitat) removal, recreation,
off-road vehicle use, development, and
other proposed actions that may result
in loss of water or suitable habitat. We
will continue to engage in future
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consultations that may affect habitat in
this active unit. Given that the Fort’s
groundwater use has been determined to
not adversely affect western yellowbilled cuckoos or their habitat, it is
unlikely that there would be future
restrictions on the Fort’s groundwater
use resulting from the designation of
critical habitat and accordingly, we are
not considering the area for exclusion
from this final rule due to national
security. Designating critical habitat
may actually help retain base flow and
western yellow-billed cuckoo habitat,
through section 7 consultation with
other entities affecting this unit.
Unit 1 (CA–AZ 1), Unit 44 (AZ–32), Unit
45 (AZ–33), Unit 52 (AZ–40), Unit 20
(AZ–18), Unit 61 (AZ–49), Unit 16 (AZ–
14), and Unit 21 (AZ–19)—U.S. Customs
and Border Protection (CBP)/
Department of Homeland Security
(DHS)—U.S./Mexico Border Lands
We received a request from the U.S.
Customs and Border Protection (CBP)
under the Department of Homeland
Security (DHS) that the Roosevelt
Reservation portion of critical habitat
along the U.S./Mexico border be
considered for exclusion under section
4(b)(2) of the Act for national security
reasons.
The Roosevelt Reservation is a 60-ft
(18 m) wide strip of land owned by the
Federal Government along the United
States side of the U.S./Mexico border in
California, Arizona, and New Mexico
(DHS 2020, entire). No critical habitat
was proposed along the border in New
Mexico, while the border area in Texas
is not part of the Roosevelt Reservation
(Proclamation 758 1907, entire). DHS
and CBP requested an exclusion for
portions of the Roosevelt Reservation
located in Yuma, Pima, Santa Cruz, and
Cochise counties in Arizona. Their
exclusion request identified Unit 1 (CA–
AZ 1), Unit 44 (AZ–32), Unit 45 (AZ–
33), Unit 52 (AZ–40), Unit 20 (AZ–18),
Unit 61 (AZ–49), Unit 16 (AZ–14), and
Unit 21 (AZ–19). The area being
excluded totals 113 ac (46 km). All the
units are considered to have been
occupied at the time of listing and are
currently occupied. Unit 1 (CA–AZ 1)
has been excluded due to management
from the LCR MSCP (see Exclusions
Private or Other Non-Federal
Conservation Plans Related to Permits
Under Section 10 of the Act). Each of
these units extend for miles north of the
border beyond the 60-ft (18 m) wide
Roosevelt Reservation (see Unit
Descriptions). The following analysis
addresses only the 60-ft (18-m) wide
Roosevelt Reservation along the border
and not additional portions of the units.
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20875
The U.S. Border Patrol (USBP), a law
enforcement component of CBP, uses
the Roosevelt Reservation for border
security operations. The mission of the
CBP is ‘‘To safeguard America’s borders
thereby protecting the public from
dangerous people and materials while
enhancing the Nation’s global economic
competitiveness by enabling legitimate
trade and travel.’’ The Roosevelt
Reservation contains border security
related infrastructure consisting of
border barrier, lighting, a patrol road,
and cleared vegetation of the 60-ft (18m) wide reservation. USBP conducts
routine patrols and law enforcement
activities between the land ports of
entries such as intervention of drug
smuggling, human trafficking, and
tracking of illegal immigrant foot traffic.
Border enforcement activities can occur
along the road bordering the barrier
(within the 60-ft (18-m) Roosevelt
Reservation) and outside of the
Roosevelt Reservation, as needed for
enforcement. The Roosevelt Reservation
has historically been used for border
enforcement actions in Arizona for
decades and includes an existing patrol
road in most areas. New border barrier
is being constructed in portions of the
Roosevelt Reservation in Arizona where
there has historically not been barrier.
These new areas of border barrier
include the clearing of vegetation within
the 60-ft (18-m) wide Roosevelt
Reservation, construction of a patrol
road paralleling the barrier, lighting,
and detection technology. A significant
amount of water, which often flows
through these drainages important to the
western yellow-billed cuckoo, is being
extracted from local sources along the
border to mix with cement in border
wall construction. Upon completion of
construction, these areas of new barrier
along with existing areas of barrier will
be used for border enforcement actions
by USBP for the foreseeable future. DHS
states that they will continue to
maintain and clear vegetation within the
Roosevelt Reservation to ensure a safe
operating environment for agents
patrolling and enforcing border laws on
the border. These border-security
activities are not compatible with
riparian habitat. As a result, since
designating the 60-ft (18-m) wide
Roosevelt Reservation as critical habitat
for the western yellow-billed cuckoo
would interfere with on-going border
security operations, DHS states that the
60-ft (18-m) wide Roosevelt Reservation
should be excluded because of national
security reasons.
DHS and CBP currently have the
authority to conduct work within the
60-ft (18-m) Roosevelt Reservation to
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secure the border under existing waivers
of environmental laws, including the
ESA. These waivers cover the
construction and maintenance of
discrete border infrastructure projects,
as issued by the Secretary of the
Interior. Congress directed DHS to
achieve and maintain operational
control of the U.S. Mexico border
(Secure Fence Act of 2006, Pub. L. 109–
367, section 2, 120 Stat. 2638 (Oct. 26,
2006) (8 U.S.C. 1701 note)). Congress
further provided DHS with a number of
authorities to carry out DHS’s border
security mission (85 FR 9794, February
20, 2020). One of these authorities,
under section 102 of the Illegal
Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996, as
amended, authorized DHS to waive laws
where necessary to ensure the
expeditious construction of border
infrastructure in areas of high illegal
entry (IIRIRA 2019). Per section 102 of
IIRIRA, the Secretary of Homeland
Security has waived certain laws,
regulations, and other legal
requirements in order to ensure the
expeditious construction of barriers and
roads and achieve operational control of
the border. As such, review of specific
federally funded projects through the
section 7 consultation process under the
Endangered Species Act is not required,
although DHS coordinates with the
Service concerning actions along the 60ft (18-m) Roosevelt Reservation, where
applicable.
Currently, CBP is authorized to access
the project area; remove vegetation;
extract and use water; and create,
maintain, and use roads, barrier fence,
drainage, and lighting, as well as
conduct operations involved with
homeland security. Actions pertaining
to the current building, maintenance,
and operation of the border
infrastructure are considered to have
negative effects to western yellow-billed
cuckoo individuals and habitat, based
on the western yellow-billed cuckoo’s
behaviors and biological needs. Some of
the actions CBP takes within the
Roosevelt Reservation may also affect
western yellow-billed cuckoos
immediately outside the Roosevelt
Reservation, and include actions such as
but not limited to: Drainage design, gate
placement and operations, and lighting
footprint.
Benefits of Inclusion—U.S./Mexico
Border Lands
An important benefit of including
lands in a critical habitat designation is
that the designation can serve to educate
landowners and the public regarding the
potential conservation value of an area,
and it may help focus management and
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conservation efforts on areas of high
value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation activities, is valuable and
would continue to encourage
collaboration between DHS, CBP, and
USBP and the Service.
The border area is important because
it spans riparian areas and associated
drainages that run north-south between
Mexico and the U.S. These corridors are
migratory routes of not only western
yellow-billed cuckoos, but also many
other migratory birds. Including the
Roosevelt Reservation provides
opportunities for education and public
awareness concerning migratory birds’
needs, particularly those of the western
yellow-billed cuckoo and potentially
encourages future restoration and
minimization of adverse effects in areas
designated. This may lead to retaining
existing trees, allowing for successional
development of future riparian habitat,
and provide for naturally functioning
drainages to maintain or restore the
environmental qualities of the sites.
Retaining hydrological processes that
allow for drainages to fully function
naturally will sustain riparian habitat
upstream and downstream of the
Roosevelt Reservation. Inclusion of
these border areas delineates
geographically important habitat for this
species that may otherwise remain
unknown by agencies and organizations
working along the border.
In addition, inclusion of western
yellow-billed cuckoo habitat within the
critical habitat designation would be
consistent with other designations of
critical habitat for other listed species
along the border without exclusions.
The border includes designated critical
habitat for the jaguar (Panthera onca),
Yaqui chub (Gila purpurea), beautiful
shiner (Cyprinella formosa), Yaqui
catfish (Ictalurus pricei), Sonoyta mud
turtle (Kinosternon sonoriense
longifemorale) and Sonora chub (Gila
ditaenia).
However, because of the waiver
discussed above, which waives ESA
requirements, the benefits of including
this area within the designation are
relatively low, given that section 7
consultations are unlikely to occur.
Benefits of Exclusion—U.S./Mexico
Border Lands
The benefits of excluding the 60-ft
(18-m) Roosevelt Reservation area are
significant. CBP has been tasked with
enforcing national security along border
areas of the United States. The
Roosevelt Reservation and infrastructure
within the area is a key component in
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assisting CBP to conduct its normal
operations and fulfilling their national
security mission along the southern
border of the United States. CBP has
identified the following activities and
infrastructure occurring within the
Roosevelt Reservation: Barrier fencing,
lighting systems, enforcement zones,
patrol roads, cleared vegetation,
vehicular patrol operations, ongoing
border barrier construction and
maintenance, and illegal immigrant foot
traffic and trespass. The designation of
the Roosevelt Reservation may reduce
CBP’s availability of unencumbered
space to support its operations. By
excluding the 60-ft (18-m) Roosevelt
Reservation the CBP would be able to
fulfill its mission of securing the border
and conduct necessary border patrol
operations as well as construct any
necessary border security infrastructure.
Excluding the Roosevelt Reservation
from western yellow-billed cuckoo
critical habitat will enable CBP to
continue actions without a need to
consult on the possible effects of
adverse modification to critical habitat.
CBP states that excluding critical habitat
will also reduce the chances that they
will need to obtain additional waivers
that they might not otherwise need for
border infrastructure projects.
By excluding the Roosevelt
Reservation, we will maintain our
working relationship with the DHS/
CBP. The Department of the Interior
(DOI), Department of Agriculture
(USDA), and DHS entered into a
Memorandum of Understanding (MOU)
in 2006 (DHS–DOI–USDA 2006, entire).
The MOU is intended to provide
consistent goals, principles, and
guidance related to DHS, DOI, and
USDA working together in fulfilling
their mandated responsibilities. The
MOU sets goals for communication,
cooperation, and resolving conflicts
while allowing for border security
operations such as: Law enforcement
operations; tactical infrastructure
installation; utilization of roads; and
minimization and/or prevention of
significant impact on or impairment of
natural and cultural resources,
including those protected under the Act.
Excluding the Roosevelt Reservation
from the designation of critical habitat
so that CBP border activities can
continue could also have several
positive effects to western yellow-billed
cuckoos. For example, border
infrastructure and patrolling could help
prevent unauthorized trespass and
resource destruction to areas adjacent to
the border that may impact western
yellow-billed cuckoo habitat.
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Benefits of Exclusion Outweigh Benefits
of Inclusion—U.S./Mexico Border Lands
The benefits of including lands in a
critical habitat designation include
educating landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, as well as
potentially helping to focus
conservation efforts on areas of high
value for certain species and
maintaining consistency with other
areas being designated for other listed
species within the Roosevelt
Reservation. Because DHS and CBP
have obtained a waiver of ESA
requirements, the benefits of including
the area as critical habitat is minimized.
Because the Roosevelt Reservation only
extends 60 ft (18 m) along the border,
the amount of area associated with the
exclusion is small and the
overwhelming majority of critical
habitat that is being designated adjacent
to the Roosevelt Reservation remains in
the final designation, allowing for the
educational benefits to remain. As a
result, the educational benefits are
small.
The benefits of exclusion of the
Roosevelt Reservation are significant.
We base this on several reasons. Firstly,
the exclusion will allow DHS to conduct
its mission of securing the border
unimpaired from the designation of
critical habitat for the western yellowbilled cuckoo. Secondly, the exclusion
will further our partnership with DHS
and allow for coordination of both the
Service’s and DHS’s responsibilities. We
view this as a significant benefit of
exclusion. Thirdly, exclusion would
allow for CBP to continue conducting
border infrastructure and patrolling
thereby helping to prevent unauthorized
trespass and resource destruction to
areas adjacent to the Roosevelt
Reservation that may affect western
yellow-billed cuckoo habitat. We
reviewed and evaluated the benefits of
inclusion and benefits of exclusion for
the 60-ft (18-m) Roosevelt Reservation
for the DHS to conduct its national
security operations and have
determined that the benefits of
excluding outweigh the benefits of
including the areas.
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Exclusion Will Not Result in Extinction
of the Species—U.S./Mexico Border
Lands
Because of the 2006 MOU, CBP has a
track record of communicating with the
Service and of remaining committed to
seeking solutions to reduce harm along
the border to listed species and their
habitat, including the western yellowbilled cuckoo. In addition, if the
operation waivers are discontinued,
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DHS and CBP would be required to
consult with the Service under section
7 of the Act. These consultations would
need to consider the effects on the
species and its habitat, and could be
more numerous, complex, or costly if
the areas are included within the critical
habitat designation. We have
determined that exclusion of the 60-ft
(18-m) Roosevelt Reservation lands from
the critical habitat designation will not
result in the extinction of the western
yellow-billed cuckoo. Accordingly, we
have determined that areas totaling 12
ac (5 ha) within the (60-ft (18-m))
Roosevelt Reservation in Unit 44 (AZ–
32) (0.6 ac (0.24 ha)), Unit 45 (AZ–33)
(0.26 ac (0.1 ha)), Unit 52 (AZ–40) (0.67
ac (0.27 ha)), Unit 20 (AZ–18) (4 ac (2
ha)), Unit 61 (AZ–49) (1 ac (0.4 ha)),
Unit 16 (AZ–14) (0.6 ac (0.24 ha)), and
Unit 21 (AZ–19) (4 ac (2 ha)), are
excluded under subsection 4(b)(2) of the
Act because the benefits of exclusion
outweigh the benefits of inclusion and
will not cause the extinction of the
species.
Consideration of Other Relevant
Impacts
When identifying the benefits of
inclusion for an area, we consider other
relevant impacts, such as the additional
regulatory benefits that the area would
receive due to the protection from
destruction or adverse modification as a
result of actions with a Federal nexus,
the educational benefits of mapping
essential habitat for recovery of the
listed species, and any benefits that may
result from a designation due to State or
Federal laws that may apply to critical
habitat. The western yellow-billed
cuckoo migrates and is present in the
U.S. mainly during its breeding season
(generally May through September).
Regardless of the time of year, proposed
actions with a Federal nexus that may
remove or reduce the quality or quantity
of critical habitat must undergo Section
7 consultation for an adverse
modification analysis. Similarly, the
listing of the western yellow-billed
cuckoo as a threatened species ensures
that, regardless of the time of year,
consultation under the jeopardy
standard in either section 7 or section
10 of the Act would also be required in
areas where members of the species are
known to occur. When considering the
benefits of exclusion, we consider,
among other things, whether exclusion
of a specific area is likely to result in
conservation, or in the continuation,
strengthening, or encouragement of
partnerships.
In the case of western yellow-billed
cuckoo, the benefits of critical habitat
include public awareness of the
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presence of western yellow-billed
cuckoo and the importance of habitat
protection, and, where a Federal nexus
exists, increased habitat protection for
western yellow-billed cuckoo due to
protection from destruction or adverse
modification of critical habitat.
Additionally, continued
implementation of an ongoing
management plan that provides equal to
or more conservation than a critical
habitat designation would reduce the
benefits of including that specific area
in the critical habitat designation.
We evaluate the existence of a
conservation plan when considering the
benefits of inclusion. We consider a
variety of factors, including, but not
limited to, the degree to which the
record of the plan supports a conclusion
that a critical habitat designation would
impair the realization of benefits
expected from the plan, agreement, or
partnership; how it provides for the
conservation of the essential physical or
biological features; whether there is a
reasonable expectation that the
conservation management strategies and
actions contained in a management plan
will be implemented into the future;
whether the conservation strategies in
the plan are likely to be effective; and
whether the plan contains a monitoring
program or adaptive management to
ensure that the conservation measures
are effective and can be adapted in the
future in response to new information
(see Policy on Exclusions (81 FR 7226
at 7247)).
After identifying the benefits of
inclusion and the benefits of exclusion,
we carefully weigh the two sides to
evaluate whether the benefits of
exclusion outweigh those of inclusion.
If our analysis indicates that the benefits
of exclusion outweigh the benefits of
inclusion, we then determine whether
exclusion would result in extinction of
the species. If exclusion of an area from
critical habitat will result in extinction,
we will not exclude it from the
designation.
Exclusions Based on Other Relevant
Impacts
Based on the information provided by
entities seeking exclusion, any
additional public comments we
received, and the best scientific data
available, we evaluated whether certain
lands in the critical habitat were
appropriate for exclusion from this final
designation under section 4(b)(2) of the
Act. If our analysis indicated that the
benefits of excluding lands from the
final designation outweighed the
benefits of designating those lands as
critical habitat, then we identified those
areas for the Secretary to exercise his
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discretion to exclude those lands from
the final designation, unless exclusion
would result in extinction.
In considering whether to exclude
areas under section 4(b)(2) of the Act,
we consider a number of factors
including whether there are permitted
conservation plans covering the species
in the area such as HCPs, safe harbor
agreements (SHAs), or candidate
conservation agreements with
assurances (CCAAs); whether there are
other conservation agreements and
partnerships that would be encouraged
by designation of, or exclusion from,
critical habitat; whether there are tribal
conservation plans and partnerships or
whether inclusion or exclusion of
specific areas could affect the
government-to-government relationship
of the United States with tribal entities;
and whether there are social impacts
that might occur because of the
designation.
In the paragraphs below, we provide
a detailed balancing analysis of the
areas being excluded under section
4(b)(2) of the Act. Table 3 below
provides approximate areas (ac, ha) of
lands that meet the definition of critical
habitat but that we are excluding from
this final critical habitat rule under
section 4(B)(2) of the Act.
TABLE 3—AREAS EXCLUDED BY CRITICAL HABITAT UNIT FOR THE WESTERN YELLOW-BILLED CUCKOO
Unit
1
2
3
4
7
9
10
11
11
12
13
16
17
20
21
22
23
27
28
31
33
35
36
37
37
39
39
40
41
44
45
52
61
64
65
68
70
Proposed critical habitat,
(ac (ha))
Unit name
Area excluded
(ac (ha))
Final critical habitat
(ac (ha))
CA/AZ–1 ...........
CA/AZ–2 ...........
AZ–1 .................
AZ–2 .................
AZ–5 .................
AZ–7 .................
AZ–8 ...............
AZ–9A .............
AZ–9B .............
AZ–10 .............
AZ–11 .............
AZ–14 .............
AZ–15 .............
AZ–18 .............
AZ–19 .............
AZ–20 .............
AZ–21 .............
AZ–25 .............
AZ–26 .............
AZ–29 .............
NM–2 ..............
NM–4 ..............
NM–5 ..............
NM–6A ............
NM–6B ............
NM–8A ............
NM–8B ............
NM–9 ..............
NM–10 ............
AZ–32 .............
AZ–33 .............
AZ–40 .............
AZ–49 .............
CA–2 ...............
ID–1 ................
CO–1 ..............
UT–1 ...............
Colorado River 1 .....................................
Colorado River 2 .....................................
Bill Williams River ...................................
Alamo Lake .............................................
Upper Verde River ..................................
Beaver Creek ..........................................
L. Verde R./West Clear Ck .....................
Horseshoe Dam ......................................
Horseshoe Dam ......................................
Tonto Creek ............................................
Pinal Creek .............................................
Upper San Pedro River ..........................
Lower San Pedro/Gila R .........................
Santa Cruz River ....................................
Black Draw ..............................................
Gila River 1 .............................................
Salt River ................................................
Aravaipa Creek .......................................
Gila River 2 .............................................
Big Sandy ................................................
Gila River ................................................
Upper Rio Grande 1 ...............................
Upper Rio Grande 2 ...............................
Middle Rio Grande ..................................
Middle Rio Grande ..................................
Caballo Delta North ................................
Caballo Delta South ................................
Animas ....................................................
Selden Cyn./Radium Sprs ......................
California Gulch ......................................
Sycamore Canyon ..................................
Pena Blanca Canyon ..............................
Washington Gulch ...................................
South Fork Kern R. Valley ......................
Snake River 1 .........................................
Colorado River ........................................
Green River 1 .........................................
82,138 (33,240)
23,589 (9,546)
3,389 (1,371)
2,793 (1,130)
6,047 (2,447)
2,082 (842)
2,178 (882)
2,743 (1,110)
1,231 (489)
3,669 (1,485)
419 (169)
31,060 (12,569)
23,400 (9,470)
9,543 (3,862)
1,599 (647)
20,724 (8,392)
2,590 (1,048)
3,329 (1,347)
8,588 (3,195)
20,179 (8,166)
4,177 (1,690)
1,830 (741)
1,173 (475)
7,238 (2,929)
61,343 (24,825)
190 (77)
155 (63)
608 (246)
237 (96)
558 (226)
601 (243)
484 (196)
587 (237)
2,640 (1,068)
9,655 (3,907)
4,002 (1,620)
28,381 (11,486)
82,138 (33,240)
23,589 (9,546)
3,389 (1,371)
2,793 (1,130)
673 (272)
1 (<1)
44 (18)
76 (31)
321 (130)
489 (198)
380 (154)
0.6 (0.24)
445 (184)
4 (2)
4 (2)
10,184 (4,121)
2,009 (813)
392 (159)
1,467 (594)
500 (202)
1,142 (462)
1,312 (531)
1,173 (475)
7,238 (2,929)
11,367 (4,600)
190 (76)
155 (63)
608 (246)
237 (96)
0.6 (0.24)
0.26 (0.10)
0.67 (0.27)
1 (0.4)
261 (106)
4,023 (1,628)
866 (350)
15,017 (6,077)
0
0
0
0
5,188 (2,100)
2,081 (842)
2,134 (864)
2,667 (1,079)
782 (316)
3,181 (1,287)
0
31,059 (12,569)
22,397 (9,064)
9,538 (3,860)
1,595 (646)
10,540 (4,266)
581 (235)
2,937 (1,189)
5,836 (2,362)
15,231 (6,164)
3,036 (1,228)
518 (210)
0
0
46,595 (18,856)
0
0
0
0
558 (226)
601 (243)
483 (195)
585 (237)
2,379 (963)
5,623 (2,276)
3,137 (1,269)
13,273 (5,371)
Total ................
.................................................................
........................................
172,490 (69,808)
........................................
Note: Areas may not add due to rounding.
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Private or Other Non-Federal
Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas
from critical habitat designations based
in part on the existence of private or
other non-Federal conservation plans or
agreements and their attendant
partnerships. A conservation plan or
agreement describes actions that are
designed to provide for the conservation
needs of a species and its habitat, and
may include actions to reduce or
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mitigate negative effects on the species
caused by activities on or adjacent to the
area covered by the plan. Conservation
plans or agreements can be developed
by private entities with no Service
involvement, or in partnership with the
Service.
We evaluate a variety of factors to
determine how the benefits of any
exclusion and the benefits of inclusion
are affected by the existence of private
or other non-Federal conservation plans
or agreements and their attendant
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partnerships when we undertake a
discretionary section 4(b)(2) exclusion
analysis. A non-exhaustive list of factors
that we will consider for non-permitted
plans or agreements is shown below.
These factors are not required elements
of plans or agreements, and some
elements may not apply to a particular
plan or agreement.
(i) The degree to which the plan or
agreement provides for the conservation
of the species or the essential physical
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or biological features (if present) for the
species.
(ii) Whether there is a reasonable
expectation that the conservation
management strategies and actions
contained in a management plan or
agreement will be implemented.
(iii) The demonstrated
implementation and success of the
chosen conservation measures.
(iv) The degree to which the record of
the plan supports a conclusion that a
critical habitat designation would
impair the realization of benefits
expected from the plan, agreement, or
partnership.
(v) The extent of public participation
in the development of the conservation
plan.
(vi) The degree to which there has
been agency review and required
determinations (e.g., State regulatory
requirements), as necessary and
appropriate.
(vii) Whether National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) compliance was required.
(viii) Whether the plan or agreement
contains a monitoring program and
adaptive management to ensure that the
conservation measures are effective and
can be modified in the future in
response to new information.
Unit 4 (AZ–2) and Portions of Unit 31
(AZ–29)—Alamo Lake Wildlife Area
Management Plan
In the revised proposed rule, we
identified approximately 2,793 ac (1,130
ha)) as critical habitat in Alamo Lake
Unit 4 (AZ–2) and 500 ac (202 ha) in a
portion of the Big Sandy River Unit 31
(AZ–29). Approximately 1,840 ac (745
ha) is in Federal ownership, and 953 ac
(386 ha) is in other unclassified
ownership but most likely Arizona State
Park lands. The vast majority of the
critical habitat is within the Alamo Lake
State Wildlife Area, which is made up
of Corps and State Park Lands. Small
upland areas adjacent to the wildlife
area belong to BLM. The critical habitat
area is a continuous 6-mi (10-km)-long
segment of the Santa Maria River and a
3-mi (5-km)-long continuous segment of
the Big Sandy River that feeds into the
Santa Maria River above Alamo Lake
State Park in Mohave and La Paz
Counties, Arizona. We are excluding the
entire Alamo Lake area (Alamo Lake
(Unit 4, AZ–2: 2,793 ac (1,130 ha)) and
portions of the Big Sandy River (Unit
31, AZ–29: 500 ac (202 ha) within the
Alamo Lake State Wildlife Area from
the final designation of western yellowbilled cuckoo critical habitat under
section 4(b)(2) of the Act. The BLM
lands adjacent to the wildlife area were
removed from the designation due to
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their small size and being made up of
upland habitat not containing the PBFs.
The Alamo Lake Wildlife Area (AWA)
was created under provisions of the Fish
and Wildlife Coordination Act (16
U.S.C. 661 et seq.), Public Land Order
492 (PLO 492), and the General Plan
agreement between the Secretary of the
Army, Secretary of the Interior, and
Director of Arizona Game and Fish,
signed January 19, 1968 (Arizona Game
and Fish Department–Arizona State
Parks (AGFD–ASP) 1997). A lease
agreement between the Arizona Game
and Fish Department Commission and
the Corps was signed in 1970,
establishing the AWA for fish and
wildlife conservation and management
purposes (AGFD–ASP 1997). The
present lease area encompasses
approximately 22,586 ac (9,140 ha).
Public input was solicited and
addressed in development of the AWA
Management Plan and the NEPA review
process (AGFD–ASP 1997). The
corresponding AWA Property
Operational Management Plan
addressing the operations of the
property, together with the budget, is
updated as needed to reflect the changes
in operational management (AGFD
2012).
We identified western yellow-billed
cuckoo critical habitat along the Big
Sandy, Santa Maria, and Bill Williams
Rivers, which are part of Alamo Lake.
The AWA Management Plan describes
the unique riparian, wetland, and
aquatic aspects of the area for a variety
of species, specifically targeting the
southwestern willow flycatcher for
management and including the western
yellow-billed cuckoo as a species of
wildlife concern. Two of the specific
resources are directed toward the
habitat needs of the southwestern
willow flycatcher and the western
yellow-billed cuckoo: (1) Maintain and
enhance aquatic and riparian habitats to
benefit wildlife; and (2) restore, manage,
and enhance habitats for wildlife of
special concern. Large Fremont
cottonwood and Goodding’s willow
forests, mesquite bosque, and small
areas of wetland currently exist along
the Big Sandy, Santa Maria, and upper
Bill Williams Rivers. Increasing and
improving these habitats will benefit
riparian- and wetland-dependent
species (AGFD 2012, pp. 4–6). The
objective for maintaining and enhancing
riparian habitat includes (a) Maintaining
a reservoir level sufficient to ensure
suitable soil moisture conditions in the
mixed riparian forest, and (b) managing
feral burros (Equus asinus), elk (Cervus
canadensis), and eliminating trespass
cattle to ensure that browsing does not
harm existing habitat or impair
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recruitment of replacement vegetation.
Livestock grazing is excluded from the
riparian areas on the upper end of
Alamo Lake and the lower portions of
the Santa Maria and Big Sandy Rivers.
Feral burro management objectives are
to monitor and limit use of riparian
vegetation such that annual bark
stripping of live trees does not exceed
3 percent in any of the key monitoring
areas (AGFD 2012, p. 10). Fencing may
be needed to exclude unauthorized
livestock and feral burros, exclude elk,
control off-highway-vehicle access, and
better manage authorized livestock
(AGFD 2012, pp. 10–12).
Although the original authority for
Corps’ Alamo Dam and Lake was for
flood control, the Water Resources
Development Act of 1996 (Pub. L. 104–
303) authorized the operation of the
dam to provide fish and wildlife
benefits both upstream and downstream
of the dam as long as these actions do
not reduce flood control and recreation
benefits. A multi-year process is
underway to develop a long-term
operation plan that benefits
environmental needs while meeting the
dam’s maintenance needs (USACE 2020,
entire). Environmental needs include
management to encourage regeneration
and maintenance of riparian vegetation.
Revised management is to benefit
southwestern willow flycatchers and
western yellow-billed cuckoos (USACE
2020, pp. 14–16).
Benefits of Inclusion—AWA
Management Plan
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. It is possible that in the
future, Federal funding or permitting
could occur on this AGFD property in
conjunction with Corps lands, triggering
consultation obligations for species’
presence and critical habitat impacts.
Recent section 7 consultations with the
Corps have addressed western yellowbilled cuckoos and their habitat along,
downstream, and in inflows to Alamo
Lake and we anticipate we will be
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receiving another request for
consultation regarding a change in
operations at Alamo Dam.
Because the leased property is owned
by the Corps, we anticipate future
Federal actions that may impact western
yellow-billed cuckoos would be
proposed by and coordinated with
Corps. Ongoing planning among
Federal, State, and nongovernment
organizations on long-term management
of Alamo Lake to benefit riparian habitat
and the subsequent section 7
consultation on proposed actions to
western yellow-billed cuckoos is likely
to result in improving habitat to support
the species even if critical habitat is not
designated. It is possible that the
designation of critical habitat may also
provide a benefit by identifying the
geographic area where the western
yellow-billed cuckoo occurs, raising the
level of awareness for managers for both
Federal and non-Federal entities.
However, because the species has been
considered for listing since 2001 and
listed since 2014, areas where the
species occurs (including Alamo Lake)
are well known and land managers
understand the value and
responsibilities of maintaining habitat
for a listed migratory species.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to inform
and educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high value for certain
species. Any information about the
western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation, birding,
hunting, livestock grazing, recreation,
and sportfishing activities, is valuable.
The designation of critical habitat may
also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws analyze the potential
for projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
laws; however, the listing of these
species, and consultations that have
already occurred already provide this
benefit. In addition, a multi-year process
underway among the Service,
Reclamation, the Corps, AGFD, Arizona
State Parks, TNC, USGS, and BLM to
develop a long-term operation plan
along the Bill Williams River (USACE
2020, entire), provides for additional
informational and educational benefits.
Therefore, in this case we view the
regulatory benefit as being largely
redundant with the benefit the species
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receives from listing under the Act, such
that designating critical habitat may
only result in minimal additional
benefits.
Benefits of Exclusion—AWA
Management Plan
A considerable benefit from excluding
AWA from western yellow-billed
cuckoo critical habitat is the
maintenance and strengthening of
ongoing conservation partnerships. We
identified this area for possible
exclusion based on the existence of a
management plan. AGFD’s management
of AWA achieves greater protection than
would be achieved through designation
of critical habitat alone. The AWA
management plan directs resources to
maintain and enhance riparian habitat
and restore, manage, and enhance
habitat for wildlife of special concern
including the western yellow-billed
cuckoo. To maintain and enhance
riparian habitat, AGFD commits to
ensuring the reservoir level maintains
proper soil moisture conditions and
controls livestock and off-highway
vehicle trespass.
Although recreation and wildlife
resources at Alamo Lake are managed by
the AGFD under agreement with the
Corps, the conservation space of Alamo
Lake and Alamo Dam is owned and the
dam operated by the Corps. Alamo Dam
is operated primarily for flood control
(as compared to water storage and
delivery for other reservoirs) and
typically remains at low levels,
permitting occupancy of western
yellow-billed cuckoo and southwestern
willow flycatcher habitat. The Corps has
consulted with the Service on dam
operations and the potential effects to
these species. In addition, we expect
that ongoing conservation efforts in this
area will continue with or without
critical habitat designation, limiting the
benefits of including the area.
Consequently, after reviewing the best
available information, we have
determined that the benefits of
excluding these Federal lands as critical
habitat is substantial.
Our collaborative relationship with
AGFD makes a difference in our
partnership with the numerous
stakeholders involved with
southwestern willow flycatcher and
western yellow-billed cuckoo
management and recovery and
influences our ability to form
partnerships with others. A multiagency team is currently engaged in
long-term management planning to
benefit riparian habitat downstream and
upstream of Alamo Lake (USACE 2020,
entire). Our partners will continue to
work on western yellow-billed cuckoo
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management and recovery without the
designation of critical habitat. Ongoing
public education by AGFD and other
entities will continue without
designation of critical habitat. The
outreach highlights the value of the
AWA for riparian habitat and ripariandependent birds like the yellow-billed
cuckoo. The AWA is one of TNC’s
Sustainable Rivers Project and is
included on the national online Wildlife
Viewing Areas (Watchable Wildlife, Inc.
2020). AGFD devotes a web page to
AWA on its own wildlife viewing
website (AGFD 2020), emphasizing
protection, restoration, management and
enhancement of wildlife habitat and
associated wildlife populations. AGFD’s
stated management philosophy includes
allowing for nonconflicting wildlifeassociated recreation and other agency
and public uses.
Because so many important areas with
western yellow-billed cuckoo habitat
occur on non-Federal lands,
collaborative relationships with nonFederal landowners are important in
recovering the species. The western
yellow-billed cuckoo and its habitat are
expected to benefit substantially from
voluntary landowner management
actions that implement appropriate and
effective conservation strategies. In
addition, we have determined that by
providing regulatory relief by excluding
State managed areas from critical
habitat, we can provide incentives to
other non-Federal landowners for
additional conservation. Where
consistent with the discretion provided
by the Act, it is beneficial to implement
policies that provide positive incentives
to non-Federal landowners to
voluntarily conserve natural resources
and that remove or reduce disincentives
to conservation (Wilcove et al. 1996,
entire; Bean 2002, pp. 1–7). Thus, it is
important for the western yellow-billed
cuckoo recovery to build on continued
conservation activities such as these
with a proven partner, and to provide
positive incentives for other nonFederal landowners who might be
considering implementing voluntary
conservation activities, but who have
concerns about incurring incidental
regulatory or economic impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Alamo Lake
Wildlife Area
We have determined that the benefits
of exclusion of AWA, with the
implementation of AGFD’s management
plan, outweighs the benefits of
inclusion because the AGFD is currently
managing AWA western yellow-billed
cuckoo and southwestern willow
flycatcher breeding sites successfully
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and is committed to maintaining and
enhancing aquatic and riparian habitats
to benefit wildlife and to restore,
manage, and enhance habitat for
wildlife of special concern. Per the
AWA management plan, AGFD has
committed to managing burros to limit
riparian vegetation damage to no greater
than 3 percent and fencing to exclude
unauthorized livestock, burros, elk, and
off-highway vehicles (AGFD 2012, pp.
10–12). These actions serve to manage
and protect habitat needed for western
yellow-billed cuckoo above those
conservation measures which may be
required if the area was designated as
critical habitat. In making this finding,
we have weighed the benefits of
exclusion against the benefits of
including these lands as critical habitat.
Past, present, and future coordination
with AGFD has provided and will
continue to provide sufficient education
regarding western yellow-billed cuckoo
habitat conservation needs on these
lands, such that there would be minimal
additional educational benefit from
designation of critical habitat. The
incremental conservation and benefit of
designating critical habitat on part of
AWA would largely be redundant with
the combined benefits of the existing
management. Therefore, the incremental
conservation and regulatory benefits of
designating critical habitat AWA are
minimal.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo along AWA are relatively low in
comparison to the benefits of exclusion.
The mentioned long-term land
management commitments in the AWA
Management Plan, public education and
awareness of the riparian value of the
AWA, and continuation of a
conservation partnership will help
foster the maintenance and
development of western yellow-billed
cuckoo habitat. The AWA management
plan outlines actions and commits to
tasks that will enhance not only the
western yellow-billed cuckoo and its
habitat, but other riparian species and
the overall health of the riparian
ecosystem.
Exclusion of these lands from critical
habitat will help preserve and
strengthen the conservation partnership
we have developed with AGFD and the
Corps, as well as foster future
partnerships and development of
management plans. We anticipate that
greater western yellow-billed cuckoo
conservation can be achieved through
these management actions and
relationships than through what are
likely to be rare consultations as to
impacts of Federal projects on
designated critical habitat.
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We are committed to working with
AGFD to further the conservation of the
western yellow-billed cuckoo and other
endangered and threatened species. As
evident from ongoing management to
protect habitat, AGFD will continue to
implement its management plans and
play an active role to protect western
yellow-billed cuckoos and their habitat.
Therefore, in consideration of the
relevant impact to our partnership with
and the ongoing conservation
management practices of AGFD, we
determined that the significant benefits
of exclusion outweigh the benefits of
inclusion in the critical habitat
designation.
Exclusion Will Not Result in Extinction
of the Species—Alamo Lake State
Wildlife Area
We find that the exclusion of these
lands will not lead to the extinction of
the western yellow-billed cuckoo
because long-term AGFD land
management commitments will ensure
the long-term persistence and protection
of western yellow-billed cuckoo habitat
at Alamo Lake and surrounding inflows.
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Planning
among Federal and State agencies,
including AGFD, is underway to
develop and implement a strategy to
manage Alamo Dam releases to benefit
western yellow-billed cuckoo riparian
habitat upstream as well as downstream.
We are engaged in this planning phase
and anticipate section 7 consultation on
changed operations of Alamo Dam to
benefit riparian habitat. Collectively,
these elements provide assurances that
the western yellow-billed cuckoo will
not go extinct as a result of excluding
these riparian habitats from the critical
habitat designation. After weighing the
benefits of including western yellowbilled cuckoo critical habitat against the
benefit of exclusion, we have concluded
that the benefits of excluding the AWA
with long-term AGFD management
commitments outweigh those that
would result from designating this area
as critical habitat. We have therefore
excluded the entire Alamo Lake area
(Unit 4, AZ–2: 2,793 ac (1,130 ha)) and
portions of the Big Sandy River (Unit
31, AZ–29: 500 ac (202 ha)) within the
AWA from this final critical habitat
designation pursuant to section 4(b)(2)
of the Act.
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Unit 7 (AZ–5) Upper Verde River—
Upper Verde River Wildlife Area
We identified 6,047 ac (2,447 ha)
within Unit 7 as critical habitat. The
Upper Verde River Wildlife Area
(UVRWA), owned and managed by the
Arizona Game and Fish Department
(AGFD), is located approximately 8 mi
(12 km) north of Chino Valley in
Yavapai County, Arizona. The property
consists of four parcels located along the
upper Verde River and lower Granite
Creek. The AGFD also manages State
Trust lands located adjacent to two of
the deeded parcels. The primary
management emphasis for the UVRWA
property is to manage, maintain, and
enhance riparian habitat and maintain
native fish diversity while the
secondary management emphases are
environmental education and
compatible wildlife oriented recreation
(AGFD 2019, entire). The site is
identified as an Important Bird Area
(IBA) by the National Audubon Society,
and a monitoring program in
partnership with Prescott Audubon and
Audubon Arizona is ongoing (National
Audubon Society 2020f, entire). The
UVRWA property has four
noncontiguous parcels of private land,
which collectively include
approximately 3 mi (5 km) of the upper
Verde River, draining easterly from the
confluence with Granite Creek to the
Prescott National Forest boundary 3.5
mi (5.6 km) downstream. Riparian
vegetation is dominated by Arizona ash,
boxelder, Arizona walnut, and netleaf
hackberry (AGFD 2019, pp. 6–7). Some
tamarisk is interspersed with native tree
species. Lower Granite Creek supports a
well-developed narrowleaf cottonwood
(Populus acuminata) riparian forest.
We received comments from the
AGFD requesting an exclusion for 464
ac (188 ha) of AGFD land and 18 ac (7
ha) of State Trust lands from the final
designation of western yellow-billed
cuckoo critical habitat under section
4(b)(2) of the Act. The analyses
associated with this request appear
below.
Benefits of Inclusion—Upper Verde
River Wildlife Area
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
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regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. It is possible that in the
future, Federal funding or permitting
could occur on these State-owned and
managed parcels for which a critical
habitat designation may require
consultation to analyze the impacts of
the project on western yellow-billed
cuckoo habitat. For example, a Corps
permit was required for the Salt River
Project (SRP) to construct the Upper
Verde River Monitoring Flume project
to monitor Verde River discharge. The
flume was constructed on the Campbell
Ranch property, one of the
aforementioned parcels within the
UVRWA. The Biological Opinion (BO)
on the SRP flume project (Service 2003)
was transmitted to the Corps prior to the
listing of the western yellow-billed
cuckoo as a threatened species, the
flume remains operational and thus
constitutes a federally authorized or
permitted activity for which
consultation in the future may be
required.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation activities, is valuable. The
designation of critical habitat may also
affect the implementation of Federal
laws, such as the Clean Water Act.
These laws analyze the potential for
projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
laws.
AGFD, Prescott Audubon, and
Audubon Arizona have surveyed, and
continue to survey the UVRWA, and
western yellow-billed cuckoos have
been detected on the property (National
Audubon Society 2020f, entire). The
stated management emphases of the
UVRWA—riparian habitat, native fish
diversity, environmental education, and
compatible wildlife oriented
recreation—are wholly consistent with
maintaining, enhancing, and potentially
expanding habitat suitable for western
yellow-billed cuckoos. The Corps,
which implements the Clean Water Act,
is already aware of riparian habitat on
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the UVRWA and the area being used by
the western yellow-billed cuckoo, as
evidenced by the BO described above.
There is no demonstrable need for the
educational aspect of critical habitat
designation, and the site’s current
management does not require any
additional conservation focus.
Therefore, the incremental benefits of a
western yellow-billed cuckoo
designation within the UVRWA would
be minimal.
Benefits of Exclusion—Upper Verde
River Wildlife Area
A considerable benefit from excluding
AGFD-owned and managed lands in the
UVRWA as western yellow-billed
cuckoo critical habitat is the
maintenance and strengthening of
ongoing conservation partnerships with
AGFD, Prescott Audubon, and Audubon
Arizona through designation as the
Upper Verde River State Wildlife Area
Important Bird Area (National Audubon
Society 2020f, entire). Although not all
sites AGFD manages qualify for
exclusion, the AGFD has demonstrated
a partnership with the Service by
becoming a conservation partner in
conducting surveys and developing and
implementing management plans (Hofer
2015a, entire; Hofer 2015b, entire;
Service 2019a, pp. 11–14, 16–17).
The success of AGFD’s management
of the UVRWA is demonstrated by the
consistent detection of western yellowbilled cuckoos and other obligate
riparian birds (National Audubon
Society 2020f, entire). We expect to
continue work and partner with the
AGFD on activities to benefit the
western yellow-billed cuckoo based on
our existing working relationship and
coordination activities with the State.
Exclusion of this area from the
designation will maintain and
strengthen the partnership between the
Service and AGFD. Our collaborative
relationship with AGFD supports our
partnership with the numerous
stakeholders involved with western
yellow-billed cuckoo management and
recovery and influences our ability to
form partnerships with others. Concerns
over perceived added regulation
potentially imposed by critical habitat
could harm this collaborative
relationship.
Because so many important areas with
western yellow-billed cuckoo habitat
occur on State lands, collaborative
relationships with the States will be
essential in order to recover the species.
The western yellow-billed cuckoo and
its habitat are expected to benefit
substantially from management actions
that implement appropriate and
effective conservation strategies. In
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addition, we have determined that by
providing regulatory relief by excluding
State managed areas from critical
habitat, we can provide incentives to
other non-Federal landowners for
additional conservation. Where
consistent with the discretion provided
by the Act, it is necessary to implement
policies that provide positive incentives
to private landowners to voluntarily
conserve natural resources and that
remove or reduce disincentives to
conservation (Wilcove et al. 1996,
entire; Bean 2002, pp. 1–7). Thus,
western yellow-billed cuckoo recovery
will build on continued conservation
activities such as these with a proven
partner, and will provide positive
incentives for other private landowners
who might be considering implementing
voluntary conservation activities, but
who have concerns about incurring
incidental regulatory or economic
impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Upper Verde
River Wildlife Area
We have determined that the benefits
of exclusion of 464 ac (188 ha) of AGFD
land and 18 ac (7 ha) of State Trust
lands on the Upper Verde River within
the AGFD UVRWA, considering the
management of the property, outweigh
the benefits of inclusion because current
management efforts maintain the
physical or biological features necessary
to develop, maintain, recycle, and
protect essential habitat essential for
western yellow-billed cuckoo
conservation. These actions serve to
manage and protect habitat needed for
western yellow-billed cuckoo above
those conservation measures which may
be required if the area was designated as
critical habitat. In making this finding,
we have weighed the benefits of
exclusion against the benefits of
including these lands as critical habitat.
Past, present, and future coordination
with AGFD has provided and will
continue to provide sufficient education
regarding western yellow-billed cuckoo
habitat conservation needs on the
UVRWA, such that there would be
minimal additional educational benefit
from designation of critical habitat. The
incremental conservation and benefit of
designated critical habitat on AGFDowned lands in the UVRWA would
largely be redundant with the combined
benefits of the existing management.
Therefore, the incremental conservation
and regulatory benefits of designating
critical habitat on AGFD lands along the
Upper Verde River are minimal.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo within the UVRWA are
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relatively low in comparison to the
benefits of exclusion. The management
of the UVRWA and continuation of a
conservation partnership will continue
to help foster the maintenance and
development of western yellow-billed
cuckoo habitat. We anticipate that
greater western yellow-billed cuckoo
conservation can be achieved through
these management actions and
relationships than through designation
of critical habitat, because actions with
a Federal nexus are likely to be rare.
On the other hand, the benefits of
excluding AGFD-owned lands within
the UVRWA along the Upper Verde
River are considerable. The UVRWA
already exhibits riparian vegetation
occupied by western yellow-billed
cuckoos and AGFD’s management of the
property is focused on maintaining that
riparian habitat. Exclusion of these
lands from critical habitat will help
preserve and strengthen the
conservation partnership we have
developed with AGFD, reinforce those
we are building with other entities, and
foster future partnerships and
development of management plans
whereas inclusion will negatively
impact our relationships with AGFD.
We are committed to working with
AGFD to further western yellow-billed
cuckoo conservation and other
endangered and threatened species.
AGFD will continue to implement their
UVRWA management plan and play an
active role to protect western yellowbilled cuckoos and their habitat.
Therefore, in consideration of the
relevant impact to our partnership with
AGFD, and the ongoing conservation
management practices of AGFD, we
determined that the significant benefits
of exclusion outweigh the benefits of
inclusion in the critical habitat
designation. We have therefore
excluded these lands from this final
critical habitat designation pursuant to
section 4(b)(2) of the Act.
Exclusion Will Not Result in Extinction
of the Species—Upper Verde River
Wildlife Area
We also find that the exclusion of
these lands will not lead to the
extinction of the western yellow-billed
cuckoo, nor hinder its recovery based on
AGFD’s track record of management of
the UVRWA will ensure the long-term
persistence and protection of western
yellow-billed cuckoo habitat on the
Upper Verde River. AGFD has shown a
long-term commitment to maintaining
and enhancing areas within its
jurisdiction to benefit the western
yellow-billed cuckoo and we expect
such commitment to continue in the
future. As discussed above under Effects
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of Critical Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. While
future section 7 consultations along the
Upper Verde River are likely to be
infrequent, the routine implementation
of the UVRWA management plan
provide assurances that the western
yellow-billed cuckoo will not go extinct
as a result of excluding these lands from
the critical habitat designation.
Accordingly, we have determined that
673 ac (272 ha) of the Upper Verde
River Wildlife Area and other State
lands are excluded under subsection
4(b)(2) of the Act because the benefits of
excluding these lands from critical
habitat for the western yellow-billed
cuckoo outweigh the benefits of their
inclusion, and the exclusion of these
lands from the designation will not
result in the extinction of the species.
Unit 13 (AZ–11) Pinal Creek—Freeport
McMoRan Management Plan
We have identified approximately 380
ac (154 ha) as critical habitat in Pinal
Creek for exclusion, owned by the
private company, Freeport-McMoRan
Incorporated (FMC). FMC has
ownership and management
responsibility for a portion of Pinal
Creek in Gila County, Arizona. FMC has
been managing the area since 1998, and
actively implementing conservation
measures for improving the riparian
habitat for the southwestern willow
flycatcher and developed a management
plan in 2012 (FMC 2012, entire).
Conservation actions being
implemented on FMC lands include
control of exotic riparian plant species,
improved cattle management, fencing,
monitoring, and limiting access to the
site in order to foster the development
of native riparian habitat. From 1999 to
2007, the water and land management
actions implemented resulted in an 88
percent increase in total riparian
vegetation volume within the area (FMC
2012, p. 11). In 2015, FMC revised its
2012 southwestern willow flycatcher
management plan for the proposed
segment of Pinal Creek to include the
western yellow-billed cuckoo (FMC
2015, entire). This revised plan,
effective on designation of final critical
habitat with no termination date,
commits FMC to continue implementing
the land management actions initiated
through a Corps permit that have
resulted in the improved abundance,
distribution, and quality of riparian
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habitat for nesting southwestern willow
flycatchers and western yellow-billed
cuckoos.
Benefits of Inclusion—Freeport
McMoRan Management Plan
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat.
It is possible that in the future,
Federal funding or permitting could
occur on this privately owned and
managed segment of Pinal Creek where
a critical habitat designation may
benefit western yellow-billed cuckoo
habitat. For example, a Corps permit
was needed to implement FMC’s
remediation program within Pinal
Creek. This permit and associated
section 7 consultation resulted in
surveys being conducted for the
southwestern willow flycatcher. The
area was previously thought not to
contain nesting occurrences of the
species. The results of the surveys
confirmed nesting and breeding
occurrences of the southwestern willow
flycatcher and its habitat. The
implementation of the habitat
management conditions included in the
Corps permit have been a significant
contributing factor in causing both
species to become established.
However, now that both species are
known to occur along Pinal Creek, the
benefits of a critical habitat designation
are reduced to the possible incremental
benefit of critical habitat because the
designation would no longer be the sole
catalyst for initiating section 7
consultation. Also, because this stream
segment is privately owned and is
primarily being managed for
environmental remediation and habitat
improvement, we do not anticipate
future Federal actions to impact the
current remediation action or habitat
improvements associated with the Corps
permit and continued management
actions. Because of the lack of past
section 7 consultations within this Pinal
Creek segment of privately owned land,
the reduced likelihood of future Federal
actions altering the current environment
clean-up and management of this stream
segment, the presence of southwestern
willow flycatcher and western yellowbilled cuckoo territories, and the
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commitment to continue implementing
land management actions that maintain
southwestern willow flycatcher and
western yellow-billed cuckoo habitat,
the benefits of a critical habitat
designation on this lower segment of
Pinal Creek are minimized.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation activities, is valuable. The
designation of critical habitat may also
affect the implementation of Federal
laws, such as the Clean Water Act.
These laws analyze the potential for
projects to significantly affect the
environment. Critical habitat may signal
the presence of important sensitive
habitat that could otherwise be missed
in the review process for these other
environmental laws.
At FMC properties in both Arizona
and New Mexico, FMC has helped fund
western yellow-billed cuckoo studies
and cooperated with conducting status
surveys. Although the implementation
of the Clean Water Act was a catalyst in
focusing conservation efforts along Pinal
Creek, FMC’s existing conservation
awareness and continued
implementation of conservation actions
have greatly improved the physical and
biological features for both western
yellow-billed cuckoo and southwestern
willow flycatcher.
FMC’s long-term commitment to
environmental clean-up and land
management actions that helped create
habitat to support southwestern willow
flycatcher and western yellow-billed
cuckoo territories will continue based
on Southwestern willow flycatcher 2012
and 2015 Management Plans and
discussions with FMC to incorporate
western yellow-billed cuckoos into the
efforts. Therefore, the incremental
benefits of a western yellow-billed
cuckoo critical habitat designation along
Pinal Creek would be minimal.
Benefits of Exclusion—Freeport
McMoRan Management Plan
A considerable benefit from excluding
FMC-owned Pinal Creek lands as
western yellow-billed cuckoo critical
habitat is the maintenance and
strengthening of ongoing conservation
partnerships. FMC has demonstrated a
partnership with the Service by
becoming a conservation partner in the
development and implementation of the
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Southwestern Willow Flycatcher
Recovery Plan, and by solidifying their
conservation actions in management
plans submitted to us for the
southwestern willow flycatcher along
the upper Gila River at the U-Bar Ranch
in New Mexico (see below) and for the
spikedace and loach minnow (2007 and
2011). They have also have
demonstrated a willingness to conserve
southwestern willow flycatcher and
western yellow-billed cuckoo habitat at
Pinal Creek and to partner with us by
exploring the initial stages of a habitat
conservation plan.
The success of FMC’s management is
demonstrated in the development of
riparian areas that provide habitat for
nesting southwestern willow flycatchers
and western yellow-billed cuckoos.
FMC’s remedial actions from operation
of the Lower Pinal Creek Treatment
Plant involve output of water into Pinal
Creek, which helps the habitat remain
potentially wetter than it would be
without treated water from the plant.
Additional evidence of the partnership
between FMC and the Service is shown
by FMC’s commitment to provide for
adaptive management, such that if
future western yellow-billed cuckoo
surveys and habitat monitoring detect
significant positive or negative changes
in the numbers of nesting western
yellow-billed cuckoos or in key habitat
parameters, they will confer with the
Service regarding the impacts of such
changes and will adopt alternative
conservation measures to promote
cuckoo habitat. Exclusion of this area
from the designation will maintain and
strengthen the partnership between the
Service and FMC.
Our collaborative relationship with
FMC makes a difference in our
partnership with the numerous
stakeholders involved with western
yellow-billed cuckoo management and
recovery and influences our ability to
form partnerships with others. Concerns
over perceived added regulation
potentially imposed by critical habitat
could harm this collaborative
relationship.
Because so many important areas with
western yellow-billed cuckoo habitat
occur on private lands, collaborative
relationships with private landowners
will be essential in order to recover the
western yellow-billed cuckoo. The
western yellow-billed cuckoo and its
habitat are expected to benefit
substantially from voluntary landowner
management actions that implement
appropriate and effective conservation
strategies. Where consistent with the
discretion provided by the Act, it is
beneficial to implement policies that
provide positive incentives to private
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landowners to voluntarily conserve
natural resources and that remove or
reduce disincentives to conservation
(Wilcove et al. 1996, entire; Bean 2002,
pp. 1–7). Thus, it is essential for the
western yellow-billed cuckoo recovery
to build on continued conservation
activities such as these with a proven
partner, and to provide positive
incentives for other private landowners
who might be considering implementing
voluntary conservation activities, but
who have concerns about incurring
incidental regulatory or economic
impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Pinal Creek
We have determined that the benefits
of exclusion of Pinal Creek on private
lands managed by FMC, with the
implementation of their management
plan, outweigh the benefits of inclusion
because current management efforts
maintain the physical or biological
features necessary to develop, maintain,
recycle, and protect essential habitat
essential for western yellow-billed
cuckoo conservation. These actions
serve to manage and protect habitat
needed for western yellow-billed
cuckoo above those conservation
measures which may be required if the
area was designated as critical habitat.
In making this finding, we have
weighed the benefits of exclusion
against the benefits of including these
lands as critical habitat.
Past, present, and future coordination
with FMC has provided and will
continue to provide sufficient education
regarding western yellow-billed cuckoo
habitat conservation needs on these
lands, such that there would be minimal
additional educational benefit from
designation of critical habitat. The
incremental conservation and benefit of
designated critical habitat on FMCowned lands would largely be
redundant with the combined benefits
of the existing management. Therefore,
the incremental conservation and
regulatory benefits of designating
critical habitat on FMC lands along
Pinal Creek are minimal.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo along Pinal Creek are relatively
low in comparison to the benefits of
exclusion. The operation of the Lower
Pinal Creek Treatment Plant remedial
activities, long-term land management
commitments, and continuation of a
conservation partnership will continue
to help foster the maintenance and
development of western yellow-billed
cuckoo habitat. We anticipate that
greater western yellow-billed cuckoo
conservation can be achieved through
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these management actions and
relationships than through consultation
regarding impacts to designated critical
habitat on a project-by-project basis on
private land where such consultations
are expected to be rare.
On the other hand, the benefits of
excluding FMC-owned lands along
Pinal Creek from critical habitat are
considerable. FMC’s management plan
establishes a framework for cooperation
and coordination with the Service in
connection with resource management
activities based on adaptive
management principles. Most
importantly, the management plan
indicates a continuing commitment to
ongoing management that has resulted
in nesting cuckoo habitat. Exclusion of
these lands from critical habitat will
help preserve and strengthen the
conservation partnership we have
developed with FMC, reinforce those we
are building with other entities, and
foster future partnerships and
development of management plans
whereas inclusion will negatively
impact our relationships with FMC and
other existing or future partners. We are
committed to working with FMC to
further western yellow-billed cuckoo
conservation and other endangered and
threatened species. FMC has agreed to
continue to implement their
management plans and play an active
role to protect western yellow-billed
cuckoos and their habitat. Therefore, in
consideration of the relevant impact to
our partnership with FMC, and the
ongoing conservation management
practices of FMC, we determined that
the significant benefits of exclusion
outweigh the benefits of inclusion in the
critical habitat designation.
After weighing the benefits of
including as western yellow-billed
cuckoo critical habitat against the
benefit of exclusion, we have concluded
that the benefits of excluding the
approximate 5.8 km (3.6 mi) of Pinal
Creek with long-term FMC management
commitments outweigh those that
would result from designating this area
as critical habitat.
Exclusion Will Not Result in Extinction
of the Species—Freeport McMoRan
Management Plan
We find that the exclusion of these
lands will not lead to the extinction of
the western yellow-billed cuckoo, nor
hinder its recovery because long-term
FMC water and land management
commitments will ensure the long-term
persistence and protection of cuckoo
habitat at Pinal Creek. As discussed
above under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
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known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
absent the designation of critical habitat,
and thus will protect the species against
extinction. While future section 7
consultations along this Pinal Creek are
likely to be rare, the jeopardy standard
of section 7 of the Act and routine
implementation of conservation
measures through the section 7 process
due to the occurrence of western
yellow-billed cuckoos on this property
provide assurances that the western
yellow-billed cuckoo will not go extinct
as a result of excluding these lands from
the critical habitat designation. As a
result, we are excluding 380 ac (154 ha)
of land from the final designation along
Pinal Creek.
Unit 28 (AZ–26)—Freeport McMoRan
Eagle Creek Management Plan
We have identified approximately
1,257 ac (509 ha) of critical habitat in
Eagle Creek owned by FreeportMcMoRan Incorporated (FMC), a private
mining company, for exclusion. FMC
has ownership and management
responsibility for a portion of Eagle
Creek in Greenlee County, Arizona.
FMC, the Service, BLM, and USFS have
coordinated on a 2020 Draft Eagle Creek
Management Plan for managing western
yellow-billed cuckoos to reduce
livestock damage to Eagle Creek by
providing grazing lands in the upland
areas. The desired result is the
improvement of the abundance,
distribution, and quality of riparian
breeding habitat for western yellowbilled cuckoos in perpetuity (FMC 2020,
pp. 74–85). Eagle Creek and tributaries
within Bee Canyon in Greenlee County
flow through private lands belonging to
FFMC. Eagle Creek meanders in and out
of Graham County along the eastern
boundary of the San Carlos Apache
Reservation.
Groundwater withdrawal in Eagle
Creek, primarily for water supply for a
large open-pit copper mine at Morenci,
Arizona, dries portions of the stream
(Sublette et al. 1990, p. 19; Propst et al.
1986, p. 7). Mining is the largest
industrial water user in southeastern
Arizona. The Morenci mine on Eagle
Creek is North America’s largest
producer of copper, covering
approximately 60,000 ac (24,281 ha).
Water for the mine is imported from the
Black River, diverted from Eagle Creek
as surface flows, or withdrawn from the
Upper Eagle Creek Well Field (Arizona
Department of Water Resources 2009,
p. 62).
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Benefits of Inclusion—Freeport
McMoRan Eagle Creek Management
Plan
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat.
A critical habitat designation requires
Federal agencies to consult on whether
their activity would destroy or adversely
modify critical habitat to the point
where recovery could not be achieved.
We have a few records of section 7
consultations addressing western
yellow-billed cuckoos and their habitat
along Eagle Creek. However, because
much of this stream segment is privately
owned, we do not anticipate future
Federal actions to impact western
yellow-billed cuckoos. The designation
of critical habitat would provide a
benefit by identifying the geographic
area important for western yellow-billed
cuckoos. However, because the species
has been considered for listing since
2001 and listed since 2014, areas where
the species occurs are well known and
land managers understand the value of
maintaining habitat for the species.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation, livestock grazing, mining,
and sportfishing activities, is valuable.
The designation of critical habitat may
also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws analyze the potential
for projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
laws; however, the listing of this species
and consultations that have already
occurred will provide this benefit.
Therefore, in this case we view the
regulatory benefit to be largely as
redundant with the benefit the species
receives from listing under the Act and
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may only result in minimal additional
benefits.
Eagle Creek and Bee Canyon are in
isolated areas; however, there are
ranchers in the area, and the area is
used for sportfishing by the general
public (77 FR 10868; February 23,
2012). Designation of critical habitat
could inform those who either live
locally or use the area for recreation
about listed species and their habitat
needs. FMC has indicated that this area
is heavily used by employees of the
Morenci Mine, and public outreach as a
result of a designation would be used to
educate users.
Overall, the benefits of designating
western yellow-billed cuckoo critical
habitat along Eagle Creek and Bee
Canyon are minimal. FMC, BLM, USFS,
and grazing permittees are aware of the
occurrence of western yellow-billed
cuckoos along Eagle Creek and these
partners will continue to be engaged
with the Draft Eagle Creek Western
Yellow-billed Cuckoo Management Plan
at this time and in implementation
when finalized at time of final
designation. Thus, the educational and
regulatory benefits of a critical habitat
designation are minimized.
Benefits of Exclusion—Freeport
McMoRan Eagle Creek Management
Plan
A considerable benefit from excluding
this part of Eagle Creek and Bee Canyon
as western yellow-billed cuckoo critical
habitat is the maintenance and
strengthening of ongoing conservation
partnerships. In 2005, FMC prepared
and submitted a plan to the Service for
the management of the U-Bar Ranch,
which supported exclusion of the FMC’s
land from the 2006 southwestern willow
flycatcher critical habitat designation.
The following year, FMC prepared and
submitted management plans for the
spikedace and loach minnow in Eagle
Creek and in the upper Gila River, in the
Gila/Cliff Valley. In 2012, FMC
submitted a management plan for
southwestern willow flycatchers and in
2015 for western yellow-billed cuckoos
on their reach of Pinal Creek, where
both species are breeding in riparian
habitat (FMC 2012, entire; FMC 2015,
entire). In part from their knowledge
and success with Pinal Creek, FMC has
committed to management to improve
Eagle Creek and Bee Canyon riparian
habitat, by fencing out livestock and
providing the infrastructure for upland
water delivery for displaced livestock
(FMC 2020, pp. 74–85), These actions
arose during coordination efforts with
BLM, FMC, and the Service while
exploring conservation options for
western yellow-billed cuckoo in this
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stretch of Eagle Creek. Additional
evidence of the partnership between
FMC and the Service is shown by FMC’s
commitment in the 2015 Pinal Creek
Management Plan and the 2020 Draft
Eagle Creek Management Plan (FMC
2020, pp. 74–85) to provide for adaptive
management, such that if future western
yellow-billed cuckoo surveys and
habitat monitoring detect significant
negative changes in the numbers of
western yellow-billed cuckoos or in key
habitat parameters, they will confer
with the Service regarding the impacts
of such changes and will adopt
alternative conservation measures to
promote western yellow-billed cuckoo
habitat.
Our collaborative relationship with
FMC makes a difference in our
partnership with the numerous
stakeholders involved with
southwestern willow flycatcher and
western yellow-billed cuckoo
management and recovery and
influences our ability to form
partnerships with others.
Because so many important areas with
western yellow-billed cuckoo habitat
occur on private lands, collaborative
relationships with private landowners
are important in recovering the species.
The western yellow-billed cuckoo and
its habitat are expected to benefit
substantially from voluntary landowner
management actions that implement
appropriate and effective conservation
strategies. Where consistent with the
discretion provided by the Act, it is
beneficial to implement policies that
provide positive incentives to private
landowners to voluntarily conserve
natural resources and that remove or
reduce disincentives to conservation
(Wilcove et al. 1996, entire; Bean 2002,
pp. 1–7). Thus, it is important for the
western yellow-billed cuckoo recovery
to build on continued conservation
activities such as these with a proven
partner, and to provide positive
incentives for other private landowners
who might be considering implementing
voluntary conservation activities, but
who have concerns about incurring
incidental regulatory or economic
impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Freeport
McMoRan Eagle Creek Management
Plan
We have determined that the benefits
of exclusion of Eagle Creek and Bee
Canyon, with the implementation of the
FMC management plan (FMC 2020, pp.
74–85), outweigh the benefits of
inclusion, and will not result in
extinction of the western yellow-billed
cuckoo because the FMC is currently
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managing Pinal Creek and U-Bar
western yellow-billed cuckoo and
southwestern willow flycatcher
breeding sites successfully and is
committing to funding, fencing out
livestock from Eagle Creek and Bee
Canyon, developing livestock waters in
the uplands that do not compromise
upland springs, monitoring vegetation
and western yellow-billed cuckoos,
preparing annual reports, and
conducting adaptive management to
ensure the fencing and watering project
conserves habitat in Eagle Creek and
Bee Canyon. These actions serve to
manage and protect habitat needed for
western yellow-billed cuckoo above
those conservation measures which may
be required if the area was designated as
critical habitat. In making this finding,
we have weighed the benefits of
exclusion against the benefits of
including these lands as critical habitat.
Past, present, and future coordination
with FMC has provided and will
continue to provide sufficient education
regarding western yellow-billed cuckoo
habitat conservation needs on these
lands, such that there would be minimal
additional educational benefit from
designation of critical habitat beyond
those achieved from listing the species
under the Act, and FMC’s continued
work in conserving these species.
The incremental conservation and
regulatory benefit of designating critical
habitat on part of Eagle Creek and Bee
Canyon would largely be redundant
with the combined benefits of the
existing management. Therefore, the
incremental conservation and regulatory
benefits of designating critical habitat
along Eagle Creek and Bee Canyon are
minimal.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo along Eagle Creek and Bee
Canyon are relatively low in comparison
to the benefits of exclusion. The
mentioned long-term land management
commitments, along with the Draft
Eagle Creek Management Plan, and
continuation of a conservation
partnership will help foster the
maintenance and development of
western yellow-billed cuckoo habitat.
The fencing and water development for
upland livestock will be designed to
keep livestock from using Eagle Creek
and Bee Canyon, thereby reducing the
effects from grazing and trampling
riparian vegetation, while allowing for
regeneration to improve habitat. FMC’s
management plan outlines actions and
commits to tasks that will enhance not
only the western yellow-billed cuckoo,
but other riparian species and the
overall health of the creek ecosystem in
areas where cattle are fenced out.
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Exclusion of these lands from critical
habitat will help preserve and
strengthen the conservation partnership
we have developed with FMC, assist
BLM, USFS, and the grazing lessee in
managing livestock to prevent it from
entering the Gila Box area, as well as
foster future partnerships and
development of management plans.
Although a critical habitat designation
would require Federal actions to consult
on adverse modification, because of the
infrequency of section 7 consultations
within Eagle Creek, the reduced
likelihood of future Federal actions, and
the landowners commitment to
continue implementing land
management actions that maintain
western yellow-billed cuckoo habitat,
the benefits of a critical habitat
designation on Eagle Creek are
minimized. We anticipate that greater
western yellow-billed cuckoo
conservation can be achieved through
these management actions and
relationships than through
implementation of critical habitat
designation on a project-by-project basis
on private land where the occurrence of
implementation of critical habitat
designation due to Federal funding or
permitting is expected to be rare.
We are committed to working with
FMC to further western yellow-billed
cuckoo conservation and other
endangered and threatened species. As
evident from ongoing conversations and
adaptive management actions, FMC will
continue to implement its management
plans and play an active role to protect
western yellow-billed cuckoos and their
habitat. Therefore, in consideration of
the relevant impact to our partnership
with FMC and the ongoing conservation
management practices of FMC, we
determined that the significant benefits
of exclusion outweigh the benefits of
inclusion in the critical habitat
designation.
Exclusion Will Not Result in Extinction
of the Species—Freeport McMoRan
Eagle Creek Management Plan
We find that the exclusion of these
lands will not lead to the extinction of
the western yellow-billed cuckoo, nor
hinder its recovery because long-term
FMC water and land management
commitments will ensure the long-term
persistence and protection of western
yellow-billed cuckoo habitat at Eagle
Creek and Bee Canyon. As discussed
above under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
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absent the designation of critical habitat,
and thus will protect the species against
extinction. Collectively, these elements
provide assurances that the western
yellow-billed cuckoo will not go extinct
as a result of excluding these riparian
habitats from the critical habitat
designation. After weighing the benefits
of including western yellow-billed
cuckoo critical habitat against the
benefit of exclusion, we have concluded
that the benefits of excluding the Eagle
Creek and Bee Canyon with long-term
FMC management commitments
outweigh those that would result from
designating this area as critical habitat.
We have therefore excluded
approximately 1,257 ac (509 ha) of land
from this final critical habitat
designation pursuant to section 4(b)(2)
of the Act.
Unit 64 (CA–2) South Fork Kern River
Valley—Sprague Ranch
We identified approximately 40 ac (16
ha) of private land for exclusion from
critical habitat based on management
and conservation easements for the
Sprague Ranch. The Sprague Ranch,
included in Unit 64 (CA–2, South Fork
Kern River Valley), warrants exclusion
from the final designation of critical
habitat under section 4(b)(2) of the Act
because we have determined that the
benefits of excluding Sprague Ranch
from western yellow-billed cuckoo
critical habitat designation will
outweigh the benefits of including it in
the final designation based on the longterm protections afforded for
southwestern willow flycatcher habitat.
The following represents our rationale
for excluding the Sprague Ranch from
the final designated critical habitat for
the western yellow-billed cuckoo.
The Sprague Ranch is an
approximately 4,380-ac (1,772-ha)
parcel of private land which is managed
and conservation easements purchased
in a public-private partnership by the
Audubon Society, CDFW, and the Corps
in 2005. The funding used to purchase
the easement and manage the Sprague
Ranch was provided by the Corps as a
result of biological opinions issued by
the Service for the long-term operation
of Lake Isabella Dam and Reservoir
(Service 1996, 2005b) specifically to
provide habitat for and conservation of
the southwestern willow flycatcher.
The Sprague Ranch is located
immediately north and adjacent to the
Kern River Preserve (KRP), which is
owned and operated by Audubon, and
shares a common border with the KRP
of over 3 mi (5 km). Together these comanaged lands provide opportunities
for western yellow-billed cuckoo
breeding, feeding, and sheltering. The
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western yellow-billed cuckoo occurs
throughout portions of the Sprague
Ranch. The Sprague Ranch contains
existing riparian forest that can support
and maintain nesting territories and
migrating and dispersing western
yellow-billed cuckoos.
The Sprague Ranch is managed
pursuant to a conservation plan dated
January 25, 2005. This plan was
prepared in partnership with the
Service, CDFW, and Audubon to
provide consistent management of lands
acquired in Unit 64 in compliance with
the biological opinions issued by the
Service. The Audubon Society is the
lead entity for management of the Kern
River Preserve, an area adjacent to the
Sprague Ranch. Management actions
required for the Sprague Ranch include:
Demographic surveys, cowbird trapping,
nonnative vegetation removal, livestock
exclusion, hydrologic improvement,
planting of native vegetation, noxious
weed control activities, flood irrigating
low-lying areas, upgrading of fencing,
upgrading irrigation systems,
monitoring, and reporting. These
measures will assist in improvement,
management, and conservation of
western yellow-billed cuckoo habitat in
perpetuity and meet our criteria for
exclusion.
Benefits of Inclusion—Sprague Ranch
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. The South Fork Kern River
Valley is occupied by western yellowbilled cuckoos during the breeding
season and the area and its habitat are
well known to be important to the
western yellow-billed cuckoo and
therefore, if a Federal action or
permitting occurs, there is a catalyst for
evaluation under section 7 of the Act
(mostly due to listing the species as
threatened). Through section 7
consultation, some minimal benefit
could occur from a critical habitat
designation at the Sprague Ranch. The
Sprague Ranch may have additional
conservation value above sustaining
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existing populations because it is being
managed to not only maintain existing
habitat, but also to improve, protect, and
possibly expand upon the amount of
nesting habitat that would provide for
growth of existing populations.
Expansion of existing populations in
these areas would contribute to recovery
of the western yellow-billed cuckoo.
The implementation of future
management actions to improve western
yellow-billed cuckoo habitat on Sprague
Ranch is unlikely to require section 7
consultation between the Corps (the
likely Federal action agency) and the
Service, because all habitat
improvement and management actions
are not likely to result in adverse effects
to the western yellow-billed cuckoo or
its habitat. As a result, any rare Federal
action that may result in formal
consultation will likely result in only
discretionary conservation
recommendations (i.e., adverse
modification threshold is not likely to
be reached). Therefore, there is an
extremely low probability of mandatory
elements (i.e., reasonable and prudent
alternatives) arising from formal section
7 consultations that include
consideration of designated western
yellow-billed cuckoo critical habitat,
and as a result, the benefits of inclusion
are minimized.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high conservation value for
certain species. Any information about
the western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation
activities, is valuable. The designation
of critical habitat may also affect the
implementation of Federal laws, such as
the Clean Water Act. These laws analyze
the potential for projects to significantly
affect the environment. Critical habitat
may signal the presence of sensitive
habitat that could otherwise be missed
in the review process for these other
environmental laws.
There would be little additional
educational and informational benefit
gained from including this portion of
the Sprague Ranch within the
designation because the Sprague Ranch
was purchased specifically for habitat
conservation and is well known as an
important area for western yellow-billed
cuckoo management and recovery. Also,
managing agencies such as the Corps,
CDFW, and Audubon Society are
implementing a long-term management
plan that addresses western yellow-
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billed cuckoo habitat; therefore the
educational benefits educational
benefits arising from critical habitat
designation are likely to be minimal.
Benefits of Exclusion—Sprague Ranch
A considerable benefit from excluding
Sprague Ranch from western yellowbilled cuckoo critical habitat is the
maintenance and strengthening of
ongoing conservation partnerships.
Based on past and current efforts to
conserve habitat within the South Fork
of the Kern River including the Sprague
Ranch, we have determined that the
conservation benefits that would be
realized by foregoing designation of
critical habitat for the western yellowbilled cuckoo would be significant by
encouraging future conservation
cooperation from non-Federal
landowners in the area. Actions
specifically identified on the Sprague
Ranch as part of the Audubon Kern
River Preserve for conservation includes
protection and maintenance of riparian
and upland habitat for breeding feeding
and sheltering, active nonnative species
management, livestock exclusion, exotic
vegetation control, native tree planting,
and species monitoring and reporting.
These actions will be implemented
through the long-term management plan
developed by the Corps, CDFW and the
Audubon Society, who are all
committed to working toward species
recovery. The Audubon Society is
taking the lead in management of the
Kern River Preserve, and its
management of this area could be
constrained and complicated by a
checker boarded critical habitat
designation that would apply to certain
lands under Audubon management but
not all. Accordingly, exclusion would
benefit our collaboration with Audubon
in support of species recovery.
The western yellow-billed cuckoo
occurs on both public and private lands
throughout the Unit, but the Sprague
Ranch is somewhat unique in that it is
a partnership between the Corps,
CDFW, Audubon, and the Service. The
management of Sprague Ranch is
conducted in accordance with the terms
and conditions of a biological opinion,
which requires actions for the
conservation of western yellow-billed
cuckoo habitats. These actions would
still occur regardless of whether critical
habitat is designated, but the managing
entity (Audubon) may be discouraged
from implementing voluntary beneficial
actions because of the additional
requirements of the designation.
Proactive conservation efforts and
partnerships with private or nonFederal entities are necessary to prevent
the extinction and promote the recovery
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of the western yellow-billed cuckoo in
the Unit. Therefore, western yellowbilled cuckoo habitat located within
properties covered by management
plans or conservation strategies that
protect or enhance its habitat will
benefit substantially from voluntary
landowner management actions.
We contend that where consistent
with the discretion provided by the Act,
it is beneficial to implement policies
that provide positive incentives to
private landowners to voluntarily
conserve natural resources and that
remove or reduce disincentives to
conservation (Wilcove et al. 1996,
entire; Bean 2002, pp. 1–7). Thus, it is
essential for the recovery of the western
yellow-billed cuckoo to build on
continued conservation activities such
as these with proven partners, and to
provide positive incentives for other
private landowners who might be
considering implementing voluntary
conservation activities but have
concerns about incurring incidental
regulatory or economic impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Sprague Ranch
Based on the above considerations,
we have determined that the benefits of
excluding the Sprague Ranch from
critical habitat in the Unit 64 outweigh
the benefits of including it as critical
habitat for the western yellow-billed
cuckoo.
The Sprague Ranch was purchased
specifically to manage habitats for the
western yellow-billed cuckoo and is
jointly managed by the Corps, CDFW,
and Audubon in accordance with the
terms and conditions of the biological
opinions. The strategy of the managing
partnership is to implement
management and habitat improvement
measures to achieve western yellowbilled cuckoo conservation goals. There
are few additional educational or
regulatory benefits of including these
lands as critical habitat. The South Fork
Kern River as part of the Audubon
Society’s Kern River Preserve is well
known by the public and managing
agencies for its value and importance to
the western yellow-billed cuckoo.
Likewise, there will be little additional
Federal regulatory benefit to the species
because (a) there is a low likelihood that
the Sprague Ranch will be negatively
affected to any significant degree by
Federal activities that were not
consulted on in the existing biological
opinions pursuant to section 7
consultation requirements, and (b) the
Sprague Ranch is being managed in
accordance with the terms and
conditions of the biological opinions.
Based on ongoing management
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activities, there would likely be no
additional requirements pursuant to a
consultation that addresses critical
habitat. Because this piece of land was
purchased and is being managed
specifically for western yellow-billed
cuckoo habitat, a designation of critical
habitat would not provide a significant
amount of additional benefit.
The conservation measures for the
western yellow-billed cuckoo that are
occurring or will be used in the future
on the Sprague Ranch (i.e., demographic
surveys, cowbird trapping, nonnative
vegetation removal, livestock exclusion,
hydrologic improvement, planting of
native vegetation, monitoring, and
reporting) provide as many, and likely
more, overall benefits than would be
achieved through implementing section
7 consultations on a project-by-project
basis under a critical habitat
designation.
Therefore, we find that the exclusion
of critical habitat on the Sprague Ranch
would most likely have a net positive
conservation effect on the recovery and
conservation of the western yellowbilled cuckoo when compared to the
positive conservation effects of a critical
habitat designation. As described above,
the overall benefits to the western
yellow-billed cuckoo of a critical habitat
designation for this property are
relatively few. In contrast, this
exclusion will enhance our existing
partnership with the Corps, CDFW, and
Audubon, and it will set a positive
example and could provide positive
incentives to other non-Federal
landowners who may be considering
implementing voluntary conservation
activities on their lands. We conclude
there is a higher likelihood of beneficial
conservation activities occurring in this
area for the western yellow-billed
cuckoo without designated critical
habitat than there would be with
designated critical habitat on the
Sprague Ranch.
Exclusion Will Not Result in Extinction
of the Species—Sprague Ranch
We find that the exclusion of these
lands will not lead to the extinction of
the western yellow-billed cuckoo, nor
hinder its recovery because long-term
land management commitments will
ensure the long-term persistence and
protection of western yellow-billed
cuckoo habitat on the Sprague Ranch.
Exclusion of these lands will not result
in the extinction of the species because
there is a long-term commitment by
proven land management partners to
manage this property specifically for the
western yellow-billed cuckoo. In
addition, as discussed above under
Effects of Critical Habitat Designation
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Section 7 Consultation, if a Federal
action or permitting occurs, the known
presence of western yellow-billed
cuckoos or their habitat would require
evaluation under the jeopardy standard
of section 7 of the Act, even absent the
designation of critical habitat, and thus
will further protect the species against
extinction. Additionally, the western
yellow-billed cuckoo occurs on lands
adjacent to the Sprague Ranch that are
also protected and managed either
explicitly for the species, or indirectly
through more general objectives to
protect natural habitat values.
Accordingly, we have determined that
40 ac (16 ha) of the Sprague Ranch are
excluded under subsection 4(b)(2) of the
Act because the benefits of excluding
these lands from critical habitat for the
western yellow-billed cuckoo outweigh
the benefits of their inclusion, and the
exclusion of these lands from the
designation will not result in the
extinction of the species.
Unit 64 (CA–2) South Fork Kern River
Valley—Hafenfeld Ranch
Hafenfeld Ranch is approximately 247
ac (100 ha) in size and lies on and
adjacent to the South Fork Kern River.
Within the larger ranch are two
perpetual conservation easements that
were placed for the purposes of riparian
and wetland vegetation protection and
western yellow-billed cuckoo
conservation. The landowner granted
these easements willingly and in
partnership with Department of
Agriculture-Natural Resource
Conservation Service (NRCS), the
Service, Corps, and California
Rangeland Trust (CRT). Approximately
127 ac (51 ha) of the Hafenfeld Ranch
was proposed for designation of western
yellow-billed cuckoo critical habitat
within Unit 64 (CA–2, South Fork Kern
River Valley).
The Hafenfeld Ranch is part of a
continuous corridor of western yellowbilled cuckoo habitat along the South
Fork Kern River that connects the east
and west segments of the Kern River
Preserve. The dominant vegetation in
the Kern Management Unit is willow
and cottonwood (Populus fremontii).
Other plant communities of the Kern
Management Unit include open water,
wet meadow, and riparian uplands.
Portions of the Hafenfeld Ranch are
seasonally flooded, forming a mosaic of
wetland communities throughout the
area. The remainder of the property
consists of wet meadow and riparian
upland habitats, consistent with the
character of habitat along the South
Fork Kern River. Western yellow-billed
cuckoos have been recorded throughout
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the South Fork Kern River and the
Hafenfeld Ranch.
The first conservation easement of
approximately 38 ha (93 ac) was
recorded in 1996, between the
landowner and the NRCS under
authority of the Wetland Reserve
Program. The purpose of the easement
is to ‘‘. . . restore, protect, manage,
maintain, and enhance the functional
values of wetlands and other lands, and
for the conservation of natural values
including fish and wildlife habitat,
water quality improvement, flood water
retention, groundwater recharge, open
space, aesthetic values, and
environmental education. It is the intent
of NRCS to give the Landowner the
opportunity to participate in restoration
and management activities in the
easement area.’’
The second conservation easement of
approximately 57 ha (140 ac) was
recorded in 2007, between the
landowner and CRT as a result of
biological opinions for the long-term
operation of Lake Isabella Dam and
Reservoir (Service 1996, 2005b)
specifically to provide habitat and
conservation for the western yellowbilled cuckoo. The purposes of the
easement includes: (1) Protection of the
riparian area; (2) continuation of flows
into the riparian area; and (3) protection
of riparian habitat. An endowment to
implement these purposes was granted
by the Corps to the National Fish and
Wildlife Foundation to be used by CRT.
The Hafenfeld conservation
easements are managed pursuant to a
conservation plan dated January 25,
2005. This plan was prepared in
partnership with the Service, National
Fish and Wildlife Foundation (NFWF),
CDFW, Wildlife Conservation Board
(WCB), the Packard Foundation, and
Audubon to provide consistent
management of lands acquired in Unit
64. Management activities under the
plan that will protect, maintain, and
improve western yellow-billed cuckoo
habitat include: (1) Limiting public
access to the site, (2) managing grazing,
(3) protection of the site from
development or encroachment, (4)
maintenance of the site as permanent
open space that has been left
predominantly in its natural vegetative
state, and (5) the spreading of flood
waters which promotes the moisture
regime and wetland and riparian
vegetation determined to be essential for
western yellow-billed cuckoo
conservation. Other prohibitions of the
easements which would benefit western
yellow-billed cuckoo conservation
include: (1) Haying, mowing or seed
harvesting; (2) altering the grassland,
woodland, wildlife habitat, or other
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natural features; (3) dumping refuse,
wastes, sewage, or other debris; (4)
harvesting wood products; (5) draining,
dredging, channeling, filling, leveling,
pumping, diking, or impounding water
features or altering the existing surface
water drainage or flows naturally
occurring within the easement area; and
(6) building or placing structures on the
easement. Funding for the
implementation of the conservation
plan is assured by an endowment held
by NFWF and through commitments by
NRCS, CRT, and the Hafenfeld Ranch
under provisions of the Conservation
Easement.
Benefits of Inclusion—Hafenfeld Ranch
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. The South Fork Kern River is
occupied by western yellow-billed
cuckoos; therefore, if a Federal action or
permitting occurs, there is a nexus for
evaluation under section 7 of the Act
due to the species being listed as
threatened. Through section 7
consultation, some minimal benefit
could occur from a western yellowbilled cuckoo critical habitat
designation at the Hafenfeld Ranch. The
Hafenfeld Ranch may have additional
conservation value above sustaining
existing western yellow-billed cuckoo
populations because it is being managed
to not only maintain existing habitat,
but also to improve, protect, and
possibly expand upon the amount of
nesting habitat that would provide for
growth of existing populations.
Expansion of existing populations in
these areas would be an element of
recovering the western yellow-billed
cuckoo. However, because these lands
are privately owned and not under
Federal management, the occurrence of
Federal actions that would generate
evaluation under section 7 are expected
to be limited. Additionally, the
established conservation easements’
goals to restore, protect, and manage the
functional values for the conservation of
fish and wildlife habitat are intended to
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protect riparian vegetation and the
western yellow-billed cuckoo. As a
result, it is not likely that Federal
actions or the easement holder would
allow actions that would diminish or
reduce the capability of the habitat to
support existing populations. As a
result, any rare Federal action that may
result in formal consultation will likely
result in only discretionary conservation
recommendations and an adverse
modification threshold is not likely to
be reached. Therefore, there is an
extremely low probability of mandatory
elements (i.e., reasonable and prudent
alternatives) arising from formal section
7 consultations that include
consideration of designated western
yellow-billed cuckoo critical habitat,
and as a result, the benefits of inclusion
are minimized.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high conservation value for
certain species. Any information about
the western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation
activities, is valuable. The designation
of critical habitat may also affect the
implementation of Federal laws, such as
the Clean Water Act. These laws analyze
the potential for projects to significantly
affect the environment. Critical habitat
may signal the presence of sensitive
habitat that could otherwise be missed
in the review process.
There would be little educational and
informational benefit gained from
including this portion of the South Fork
Kern River within the designation
because the Hafenfeld Ranchestablished conservation easements that
addressed the western yellow-billed
cuckoo and its habitat, and therefore it
is well known as an important area for
western yellow-billed cuckoo
management and recovery. Also,
managing agencies such as the Corps,
NRCS, Service, CRT, and CDFW were
involved with establishing these
easements and development of a longterm management plan that addresses
western yellow-billed cuckoo habitat;
therefore the educational benefits or
additional support for implementing
other environment regulations from a
critical habitat designation are not
expected to be realized in this area.
Benefits of Exclusion—Hafenfeld Ranch
Conservation benefits which are and
would be realized by foregoing
designation of critical habitat for the
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western yellow-billed cuckoo at the
Hafenfeld Ranch include: (1)
Continuance and strengthening of our
effective working relationship with the
Hafenfeld Ranch and the Corps, CRT,
and CDFW to promote voluntary,
proactive conservation of the western
yellow-billed cuckoo and its habitat as
opposed to reactive regulation; (2)
allowance for continued meaningful
collaboration and cooperation in
working toward species recovery,
including conservation benefits that
might not otherwise occur; and (3)
encouragement of additional
conservation easements and other
conservation and management plan
development in the future on the
Hafenfeld Ranch and other lands for the
western yellow-billed cuckoo and other
federally listed and sensitive species.
The western yellow-billed cuckoo
occurs on public and private lands
throughout Unit 64. Proactive voluntary
conservation efforts by private or nonFederal entities are necessary to prevent
declines and promote the recovery of
the western yellow-billed cuckoo in
Unit 64.
Therefore, western yellow-billed
cuckoo habitat located within private
properties, like the Hafenfeld Ranch,
covered by management plans or
conservation strategies that protect or
enhance its habitat will benefit
substantially from voluntary landowner
management actions. Where consistent
with the discretion provided by the Act,
it is beneficial to implement policies
that provide positive incentives to
private landowners to voluntarily
conserve natural resources and that
remove or reduce disincentives to
conservation (Wilcove et al. 1996,
entire; Bean 2002, pp. 1–7). Thus, it is
essential for the recovery of the western
yellow-billed cuckoo to build on
continued conservation activities such
as these with proven partners, like the
Hafenfeld Ranch, and to provide
positive incentives for other private
landowners who might be considering
implementing voluntary conservation
activities but have concerns about
incurring incidental regulatory or
economic impacts.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Hafenfeld Ranch
Based on the above considerations,
we have determined that the benefits of
excluding the Hafenfeld Ranch from
critical habitat in Unit 64 outweigh the
benefits of including it as critical habitat
for the western yellow-billed cuckoo.
The Hafenfeld Ranch is currently
operating under a conservation plan to
implement conservation measures and
achieve important conservation goals
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through the conservation measures
described above, as well as land and
water management efforts such as
willow planting and management of
surface flows to achieve the optimal
flooding regime for the enhancement of
important riparian and wetland habitat
for the western yellow-billed cuckoo.
The additional regulatory and
educational benefits of including these
lands as critical habitat are relatively
few. Based on past and current
conservation actions and continued
stewardship of their lands by the
landowner, we anticipate that the
conservation strategies will continue to
be implemented in the future, and that
the funding for these activities will be
apportioned in accordance with the
existing management plan.
Past, present, and future coordination
with the landowner has provided and
will continue to provide sufficient
education regarding western yellowbilled cuckoo habitat conservation
needs on these lands, such that there
would be minimal additional
educational benefit from designation of
critical habitat. Likewise, there will be
little additional Federal regulatory
benefit to the species because (a) there
is a low likelihood that the Hafenfeld
Parcel will be negatively affected to any
significant degree by Federal activities
requiring section 7 consultation, and (b)
based on ongoing management
activities, there would likely be no
additional requirements pursuant to a
consultation that addresses critical
habitat. Excluding these privately
owned lands with conservation
strategies from critical habitat may, by
way of example, provide positive social,
legal, and economic incentives to other
non-Federal landowners who own lands
that could contribute to listed species
recovery if voluntary conservation
measures on these lands are
implemented.
The conservation measures for the
western yellow-billed cuckoo on the
Hafenfeld Ranch that include the
activities described above that include
land and water management actions to
enhance important riparian and wetland
habitat provide as much, and likely
more comprehensive benefits as would
be achieved through implementing
section 7 consultation on a project-byproject basis under a critical habitat
designation. This is because the land
managers are already implementing
actions that improve and maintain
western yellow-billed cuckoo habitat.
The actions already being implemented
by the landowner serve to manage and
protect habitat needed for western
yellow-billed cuckoo above those
conservation measures which may be
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required if the area was designated as
critical habitat. In making this finding,
we have weighed the benefits of
exclusion against the benefits of
including these lands as critical habitat.
Therefore, we find that the exclusion
of critical habitat on the Hafenfeld
Parcel would most likely have a net
positive conservation effect on the
recovery and conservation of the
western yellow-billed cuckoo when
compared to designating the area as
critical habitat. As described above, the
overall benefits to the western yellowbilled cuckoo from a critical habitat
designation on the Hafenfeld Ranch are
relatively low.
Exclusion Will Not Result in Extinction
of the Species—Hafenfeld Ranch
Exclusion of these lands will not
result in the extinction of the subspecies
because the western yellow-billed
cuckoo occupies the Hafenfeld Ranch
and the area is being managed for
western yellow-billed cuckoo
conservation. The management on
Hafenfeld Ranch is a long-term
conservation commitment by the
landowner to benefit habitat for the
western yellow-billed cuckoo. As
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction.
Accordingly, we have determined that
127 ac (51 ha) of the Hafenfeld Ranch
lands are excluded under subsection
4(b)(2) of the Act because the benefits of
excluding these lands from critical
habitat for the western yellow-billed
cuckoo outweigh the benefits of their
inclusion, and the exclusion of these
lands from the designation will not
result in the extinction of the species.
Unit 68 (CO–1) Colorado River—State of
Colorado Parks and Wildlife
In the revised proposed rule, we
indicated that 417 ac (169 ha) of stateowned lands in Unit 68 (CO–1) along
the Colorado River were being
considered for exclusion because State
of Colorado Parks and Wildlife (CPW)
manages them to benefit wildlife,
including the western yellow-billed
cuckoo. Based on CPW comments and
parcel information provided by CPW,
we adjusted the acreage considered for
exclusion to 866 ac (351 ha). The areas
we consider below for exclusion are the
multi-parcel James M. Robb Colorado
River State Park (273 ac (110 ha)), the
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Leatha Jean Stassen State Wildlife Area
(24 ac (10 ha)), the Tilman Bishop State
Wildlife Area (107 ac (43 ha)), and the
Walter Walker State Wildlife Area (462
ac (187 ha)).
There are four parcels of the James M.
Robb Colorado River State Park (CRSP)
within critical habitat Unit 68. The Corn
Lake section, 6 ac (2 ha), the Connected
Lakes section, 162 ac (66 ha), the Pear
Park section 105 ac (42 ha), and the 34
Road section that is 0.26 ac (0.1 ha). The
management of the Colorado State Parks
is outlined in Colorado Parks & Wildlife
Strategic Plan (CPW 2005, entire). The
primary goals of the CRSP are to
preserve native communities, reduce
noxious weeds, maintain desirable
shade trees in picnic areas, use a native
revegetation management prescription,
augment nesting structures for wildlife,
improve aquatic resources, implement a
comprehensive natural resources
monitoring program, and develop and
maintain sustainable trails. Western
yellow-billed cuckoo detections have
been documented at the Connected
Lakes Section in 2002 and at the Corn
Lake section in 1998 (Beason 2012, p
14). Colorado State Parks manages all
parcels under a 2002 stewardship plan
that prescribes a stewardship
prescription for cottonwood and willow
management and noxious weeds
management (Colorado State Parks
2002, entire).
The Leatha Jean Stassen, Tilman
Bishop, and Walter Walker State
Wildlife Areas (SWAs) are all protected
in perpetuity (owned in fee by CPW)
and managed under terms stipulated by
the Federal Aid in Wildlife Restoration
Act of 1937 (Pittman-Robertson) and
Federal Aid in Sport Fish Restoration
Act of 1950 (Dingell-Johnson), which
prohibit the diversion of CPW assets or
any funds generated from license sales
to non-wildlife programs or practices.
There are no official management plans
for the SWAs, yet all management
actions (through annual work plans) are
directed to benefit wildlife and native
habitat.
The primary management objective
for the Leatha Jean Stassen SWA is to
provide quality wildlife habitat. Key
activities in pursuit of this objective
include removal of purple loosestrife
(Lythrum salicaria) and other
herbaceous weeds as well as increasing
law enforcement presence and trash
removal to reduce disturbance from
public use. CPW’s annual work plans
also include treating Russian olive,
tamarisk, and noxious weeds to
minimize regrowth. There are no
seasonal closures for this parcel.
The Walter Walker SWA is adjacent to
the Leatha Jean Stassen SWA on the
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west end of Unit 68. The primary
management objectives for the Walker
SWA are to restore natural riparian
vegetation and to enhance values for
rare and sensitive species, non-game
wildlife, and waterfowl. The annual
management activities that support the
objectives include removal of tamarisk
and other nonnative woody riparian
plants and conduct plantings of
cottonwood and willow. Understory
vegetation management is limited to
those activities that enhance or maintain
wildlife values on the property. There is
no livestock grazing on the property.
Mechanical removal of tamarisk and
other nonnative woody riparian plants
has occurred on the property and will
be monitored and repeated as necessary.
Control of understory weeds is also a
regular occurrence.
The Tilman Bishop SWA is on the
eastern end of critical habitat Unit 68.
The primary management objectives for
the Tilman Bishop SWA are to restore
natural riparian vegetation and to
enhance habitat values for rare and
sensitive species, non-game wildlife,
and waterfowl. Key activities in pursuit
of these objectives include removal of
tamarisk and other nonnative woody
riparian plants and conduct plantings of
cottonwood and willow. Otherwise, the
management efforts are focused on
developing additional and enhancing
existing riparian vegetation on the
property. Actions that implemented
annually in this SWA that benefit
western yellow-billed cuckoo include
treating nonnative plants such as
Russian olive and tamarisk, a public
access closure period from March 15
through July 15, and mapping of
noxious weeds.
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Benefits of Inclusion—State of Colorado
Parks and Wildlife Lands
The benefits of including lands in
critical habitat can be regulatory and
educational, which can aid in
promoting recovery of the species. As
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
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point where recovery could not be
achieved.
The most likely Federal nexus for
these lands would be associated with
Federal funding through Partners for
Fish and Wildlife, the Service, or NRCS
for habitat restoration projects, or
permitting from the Corps if work
involves placing fill in riparian or
wetland areas. Potential outcomes of
section 7 consultations (mostly due to
the species being listed as threatened)
would be conservation
recommendations to avoid disturbance
during breeding and nonbreeding
periods, avoid degradation or
destruction of cottonwood stands and
their understory, and avoid spraying
pesticides that could reduce insect prey
bases for western yellow-billed cuckoo.
However, most of these
recommendations have been identified
and implemented in CPW’s
management direction to benefit
wildlife and their habitat in the CRSP
and SWAs, in the absence of critical
habitat designation. Therefore,
conservation recommendations
resulting from any section 7
consultation with respect to critical
habitat would most likely be redundant
with the conservation actions already in
place under current management. Thus,
few additional regulatory benefits
would be derived from including the
CRSP and SWAs in critical habitat Unit
68 for western yellow-billed cuckoo.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation, birding, hunting, livestock
grazing, recreation, and sportfishing
activities, is valuable. The designation
of critical habitat may also affect the
implementation of Federal laws, such as
the Clean Water Act. These laws analyze
the potential for projects to significantly
affect the environment. Critical habitat
may signal the presence of sensitive
habitat that could otherwise be missed
in the review process for these other
environmental laws.
Designation of critical habitat could
inform those who either live locally or
use the area for recreation about listed
species and their habitat needs.
However, we believe there is little, if
any, educational benefit attributable to
critical habitat beyond those achieved
from listing the species under the Act.
Therefore in this case, we view the
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regulatory benefit to be largely
redundant with the benefit the species
will receives from listing under the Act
and may only result in minimal
additional benefits.
Benefits of Exclusion—State of Colorado
Parks and Wildlife Lands
We have determined that the benefits
of exclusion of CPW lands outweighs
the benefits of inclusion because the
CPW is currently managing and is
committed to maintaining and
enhancing aquatic and riparian habitats
to benefit wildlife and to restore,
manage, and enhance habitat. The
designation of SWA and State Park with
prescriptions for cottonwood and
willow management that promotes a
healthy cottonwood overstory with grass
and shrub understory components,
sustainable public access, and control of
noxious weeds demonstrate CPW’s
commitment to prudent stewardship of
their land and water resources for the
benefit of wildlife, including western
yellow-billed cuckoo. Due to the legal
mandates (Pittman-Robertson and
Dingell-Johnson) to manage the SWAs
for the benefit of wildlife and the 2002
Stewardship Plan for the CRSP, we
conclude that it is unlikely that any
proposed actions would adversely affect
or adversely modify critical habitat for
the western yellow-billed cuckoo.
Rather, we can reasonably expect these
parcels to be protected from future
development and adaptively managed
into the future to avoid and minimize
threats to the natural habitat included
cottonwood galleries and willow
understories. Therefore, excluding these
areas from critical habitat could benefit
the existing partnership with CPW.
Due to the consistent management of
the CRSP and SWAs for the benefit of
wildlife, including cottonwood and
willow management and direction that
would not change greatly through
section 7 consultation, it is unlikely that
designating these areas as critical
habitat would appreciably increase
recommended conservation measures.
In response to the proposed designation
of critical habitat, CPW said that
designation of critical habitat should
also consider the existing conservation
programs available to private
landowners and that the designation of
critical habitat on private lands may
discourage landowners from pursuing
voluntary conservation actions. By
excluding these areas we can foster
more cooperation from adjacent private
landowners.
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Benefits of Exclusion Outweigh the
Benefits of Inclusion—State of Colorado
Parks and Wildlife Lands
We have determined that the benefits
of excluding the CRSP, Walter Walker
SWA, Tilman Bishop SWA, and Leatha
Jean Stassen SWA as critical habitat for
western yellow-billed cuckoo, outweigh
the benefits of including them as critical
habitat. This conclusion is based on the
following factors: (1) The CRSP has a
complete stewardship plan that
provides guidance and direction for
annual activities and land management
that promote and preserve native
riparian vegetation. Due to designation
as a State Park, it is likely that the
conservation management strategies and
actions will continue to be implemented
for the foreseeable future. In addition to
the goals and objectives set out in the
stewardship plan for the CRSP, there is
also a specific cottonwood and willow
stewardship prescription that guides
management actions to reduce
nonnative invasive plants and restore
natural hydrology and regeneration
processes within the riparian ecosystem.
Although the SWAs do not have
completed management plans, the
annual work plans, cottonwood and
willow prescription, and wildlife
management mandate under the
Pittman-Robertson and Dingell-Johnson
Acts indicate sufficient management
protections for the physical and
biological features needed for western
yellow-billed cuckoo; and (2) Excluding
these areas from critical habitat will
help maintain and improve our
partnership with CPW. CPW
commented that the designation of
critical habitat in Unit 68 as proposed
(85 FR 11458) would likely have a
negative impact on ongoing and future
voluntary conservation efforts by CPW
and adjacent private landowners.
Designating these areas over the
objections of CPW could create a
disincentive to future partnering with
the Service to achieve conservation
goals, who desire to avoid possible
Federal regulation under the Act. Given
our desire for cooperative partnerships
and the wildlife habitat protections
enacted by the State of Colorado on
these areas, there is a reasonable
expectation that the conservation
management strategies and actions will
continue to be implemented into the
future.
Although a critical habitat designation
would require actions with a Federal
nexus to consult on adverse
modification, activities conducted by
CPW may not have a Federal nexus and
CPW’s management already benefits
wildlife and their habitat in the CRSP
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and SWAs, in the absence of critical
habitat designation. Therefore,
conservation recommendations
resulting from any section 7
consultation with respect to critical
habitat would most likely be redundant
with the conservation actions already in
place under current management and
few additional regulatory benefits
would be derived from including the
CRSP and SWAs in critical habitat for
the western yellow-billed cuckoo.
Lastly, these areas are well known as
important areas for the western yellowbilled cuckoo and past, present, and
future coordination with CPW has
provided and will continue to provide
sufficient educational benefits regarding
conservation of western yellow-billed
cuckoo habitat on these lands, such that
there would be minimal additional
educational benefit from designation of
critical habitat beyond those achieved
from listing the species under the Act,
and CPW’s continued work in
conserving the species.
Exclusion Will Not Result in Extinction
of the Species
We have determined that the
exclusion of the CRSP and SWAs lands
from Unit 68 will not result in the
extinction of the western yellow-billed
cuckoo. CPW’s mandate to manage
SWAs for the benefit of wildlife and
stewardship plan for the CRSP ensure
continued management actions that
benefit western yellow-billed cuckoo
and their habitat. As discussed above
under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
absent the designation of critical habitat,
and thus will protect the species against
extinction. It is likely that most actions
requiring section 7 consultation on
these lands would be for actions that
have a net conservation benefit to
improving riparian habitat and reducing
threats such as nonnative invasive
plants. Accordingly, we have
determined that 866 ac (351 ha) of
Colorado Parks and Wildlife lands are
excluded under subsection 4(b)(2) of the
Act because the benefits of excluding
these lands from critical habitat for the
western yellow-billed cuckoo outweigh
the benefits of their inclusion, and the
exclusion of these lands from the
designation will not result in the
extinction of the species.
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Unit 33 (NM–2) Gila River—U-Bar
Ranch
We identified approximately 1,142 ac
(462 ha) in Unit 33 for exclusion from
the final critical habitat based on habitat
management by U-Bar Ranch. The U-Bar
Ranch (Ranch) near Cliff, in Grant
County, New Mexico, in the Upper Gila
Management Area is owned by Pacific
Western Land Company (PWLC), a
subsidiary of the FMC. Through their
efforts and their long-time lessee, FMC
has demonstrated a commitment to
management practices on the Ranch that
have conserved and benefited the
western yellow-billed cuckoo
population in that area over the past
decade. In addition, FMC had privately
funded scientific research at and in the
vicinity of the Ranch in order to develop
data that have contributed to the
understanding of habitat selection,
distribution, prey base, and threats to
the southwestern willow flycatcher. The
riparian habitat also has a large number
of nesting western yellow-billed
cuckoos.
PWLC and the U-Bar Ranch have
supported collecting annual breeding
bird population data for over 20 years,
where western yellow-billed cuckoo
detections have displayed a significant
increase since 1997. The Ranch began
formally surveying for western yellowbilled cuckoos on an annual basis
beginning in 2014, where results of
these surveys and the past breeding bird
studies indicate that the western yellowbilled cuckoo is a common summer
resident.
The Ranch implements a management
plan (FMC 2012, entire) on its pastures
within the Gila Valley that are north of
the Highway 180 West Bridge and south
of the boundary of the Gila National
Forest. Eight pastures that incorporate
approximately 3,390 ac (1,372 ha) are
managed with a plan that is adapted
annually for operation of livestock and
farming enterprises. The management
consists of a multifaceted and highly
flexible rest-rotation system using both
native forage and irrigated fields. The
Ranch’s numerous pastures allow a
relatively dynamic rotation system that
is modified based upon current
conditions. Grazing use of river bottom
pastures is monitored by daily visual
inspections. Use of these pastures is
limited to ensure that forage utilization
levels are moderate and over-use does
not occur. In addition, the riparian areas
are monitored regularly, and riparian
vegetation is allowed to propagate along
the river as well as in irrigation ditches.
Some specific management practices,
varying in different pastures, which
relate to the western yellow-billed
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cuckoo and its habitat are: (1) Grazing
is limited to November through April to
avoid negative impacts during migration
and nesting season; (2) animal units are
adjusted to protect and maintain the
riparian vegetation needed by the
western yellow-billed cuckoo; (3)
restoration efforts follow flood events
that destroy habitat; and (4) herbicide
and pesticides are only used in rare
circumstances and are not used near
occupied territories during breeding
season. These long practiced flexible
and adaptive management practices
have resulted in the expansion,
protection, and successful continuance
of a large southwestern willow
flycatcher population, which has
ultimately also provided benefit to the
western yellow-billed cuckoo.
As an example of long standing
successful restoration practices, in 1995,
active restoration followed the flooding
destruction of the Bennett Farm fields in
the 162 ha (400 ac) River Pasture. The
Bennett Restoration Project is a series of
artificially created, flooded marshy
areas located between irrigated and dryland pastures and the river. The Bennett
Restoration Project is a mosaic of
vegetation in successional stages with
dense patches and lines of willows and
cottonwoods occurring in manmade
oxbows. The site now consistently
supports western yellow-billed cuckoos.
The 2016 surveys recorded up to 7
detections of western yellow-billed
cuckoos at the Bennett site.
Benefits of Inclusion—U-Bar Ranch
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. As this is private property and
consultation will be rare, critical habitat
is not anticipated to have much effect
due to lack of Federal actions. Given the
anticipated lack of section 7
consultation, the dependence on private
conservation actions is more important.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
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and the public regarding the potential
conservation value of an area, and this
may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, the U-Bar Ranch is
already working with the Service to
address the conservation and recovery
of the species. For these reasons,
designation of critical habitat would
have few, if any, additional benefits
beyond those that will result from
continued consultation for the presence
of the species.
Benefits of Exclusion—U-Bar Ranch
Significant benefits would be realized
by excluding the Ranch that include: (1)
The continuance and strengthening of
our effective cooperative relationship
with the Ranch to promote the
conservation of the western yellowbilled cuckoo and its habitat; (2) the
allowance for continued meaningful
collaboration and cooperation in
surveys and research as we work
towards recovery of the species; and (3)
the provision of conservation benefits to
the Gila River ecosystem and the
western yellow-billed cuckoo and its
habitat that might not otherwise occur.
As mentioned above, the Ranch is an
important land manager in the Upper
Gila River area. The surveys,
conservation, restoration and
management information submitted to
the Service by the Ranch document that
meaningful collaborative and
cooperative work for the western
yellow-billed cuckoo and its habitat will
continue on their land. The Ranch has
committed to several ongoing or future
management, restoration, enhancement,
and survey activities. The results of
these activities promote long term
protection and conserve the western
yellow-billed cuckoo and its habitat on
the Ranch.
Because so many important areas with
western yellow-billed cuckoo habitat
occur on private lands, collaborative
relationships with private landowners
are important in recovering the species.
The western yellow-billed cuckoo and
its habitat are expected to benefit
substantially from voluntary landowner
management actions that implement
appropriate and effective conservation
strategies. Where consistent with the
discretion provided by the Act, it is
beneficial to implement policies that
provide positive incentives to private
landowners to voluntarily conserve
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natural resources and that remove or
reduce disincentives to conservation
(Wilcove et al. 1996, entire; Bean 2002,
pp. 1–7). Thus, it is important for the
western yellow-billed cuckoo recovery
to build on continued conservation
activities such as these with a proven
partner, and to provide positive
incentives for other private landowners
who might be considering implementing
voluntary conservation activities, but
who have concerns about incurring
incidental regulatory or economic
impacts.
The benefits of excluding this area
from critical habitat will encourage the
continued conservation, land
management, and coordination with the
Service. If this area is designated as
critical habitat, we may jeopardize
future conservation, research, and
information sharing for the recovery of
the western yellow-billed cuckoo.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—U-Bar Ranch
We have determined that the benefits
of exclusion of U-Bar Ranch, with the
implementation of their management
plan, outweighs the benefits of
inclusion, because the Ranch is
currently managing western yellowbilled cuckoo and southwestern willow
flycatcher breeding sites successfully
and is committed to maintaining and
enhancing habitats to benefit wildlife.
The benefits of including the Ranch in
critical habitat are few, and are limited
to educational benefits since these lands
are privately owned and thus one trigger
for section 7 consultation for adverse
modification is lacking. The benefits of
excluding this area from designation as
critical habitat for the western yellowbilled cuckoo are significant, and
include encouraging the continuation of
adaptive management measures such as
monitoring, surveys, research,
enhancement, and restoration activities
that the Ranch currently implements
and plans for the future. The exclusion
of this area will likely also provide
additional benefits to the species by
encouraging and maintaining a
cooperative working relationship with
the Ranch.
Through their and their long-time
lessee’s efforts, FMC has demonstrated a
commitment to management practices
on the Ranch that have conserved and
benefited the western yellow-billed
cuckoo population in that area over the
past decade. In addition, FMC had
privately funded scientific research at
and in the vicinity of the Ranch in order
to develop data that has contributed to
the understanding of habitat selection
and distribution of the western yellowbilled cuckoo. Considering the past and
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ongoing efforts of management and
research to benefit the western yellowbilled cuckoo, done in coordination and
cooperation with the Service, we find
the benefits of excluding areas of the UBar Ranch outweigh the benefits of
including it in critical habitat.
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Exclusion Will Not Result in Extinction
of the Species—U-Bar Ranch
We have determined that exclusion of
areas of the Ranch will not result in
extinction of the species, nor hinder its
recovery because FMC management will
ensure the long-term persistence and
protection of western yellow-billed
cuckoo habitat at the Ranch and because
the Ranch is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat. In
addition, as discussed above under
Effects of Critical Habitat Designation
Section 7 Consultation, if a Federal
action or permitting occurs, the known
presence of western yellow-billed
cuckoos or their habitat would require
evaluation under the jeopardy standard
of section 7 of the Act, even absent the
designation of critical habitat, and thus
will protect the species against
extinction. Accordingly, we have
determined that approximately 1,142 ac
(462 ha) of land within Unit 33: NM–2
Gila River owned by the U-Bar Ranch
are excluded under subsection 4(b)(2) of
the Act because the benefits of
exclusion outweigh the benefits of
inclusion and will not cause the
extinction of the species.
Unit 40 (NM–9) Animas—Ladder
Ranch, NM
In the revised proposed rule we
identified the entire 608 ac (246 ha) of
private land for exclusion in Unit 40
(NM–9) along Las Animas Creek owned
by the Turner Ranch Properties. The
Ladder Ranch (Ranch) is located near
Truth or Consequences in Sierra
County, New Mexico. The Nature
Conservancy is a Conservation Guardian
of the Turner Conservation Trust (which
includes the Ladder Ranch). The Turner
Conservation Trust has a goal of
demonstrating how private lands can be
innovatively managed to allow
conservation and commerce to co-exist
to sustain the natural diversity of the
landscape. The Ranch has committed to
management, protections of habitat,
water availability, and survey activities
according to the Trust Agreement with
the Nature Conservancy and has
demonstrated a commitment to
conservation of the western yellowbilled cuckoo by completing formal
presence/absence surveys for the
species in 2016 and the management
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techniques described below. From the
2016 baseline study as well as from
incidental observations, the riparian
habitat provides refuge to western
yellow-billed cuckoos suspected of
nesting on the property.
The Ranch is managed as a working
landscape, supporting bison ranching,
commercial and recreational hunting,
ecotourism, conservation and
restoration projects, and scientific
research. While these activities have
been ongoing, listed or sensitive species
such as the western yellow-billed
cuckoo, the Chiricahua leopard frog
(Rana chiricahuensis), Rio Grande chub
(Gila Pandora), Rio Grande sucker
(Catostomus plebeius) and black-tailed
prairie dogs (Cynomys ludovicianus
arizonensis) have all coexisted on the
property. Examples of conservation
pertaining to these sensitive species
include pumping water to support
Chiricahua leopard frog habitat and
captive breeding/rearing of the species.
Monitoring Rio Grande chub and Rio
Grande sucker habitat, surveying the
species, and translocating when
appropriate are also examples of
conservation. In order to protect
sensitive species such as the western
yellow-billed cuckoo and others located
on the Ranch, the Ranch has
constructed fencing and monitored
browsing activity and provided
supplemental feed and water when
necessary to move bison away from
sensitive areas and protect habitats.
Considering the past and ongoing efforts
of management and research to benefit
the western yellow-billed cuckoo as
well as other listed or sensitive species
within the Ranch, we find the benefits
of excluding the Ranch outweigh the
benefits of including it in critical
habitat.
Benefits of Inclusion—Ladder Ranch
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. Since the western yellowbilled cuckoo was listed in 2014, there
has been one formal consultation that
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20895
overlapped with the property and was
associated with the Copper Flat Mine
and one informal consultation that
resulted in concurrence of a ‘‘not likely
to adversely affect’’ determination.
Since the area is on private property, we
expect that future consultations will
also be rare and that critical habitat is
not anticipated to have much effect due
to lack of Federal actions. Given the
anticipated lack of section 7
consultation, the dependence on private
conservation actions is more important.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, the Ranch is already
working with the Service and The
Nature Conservancy to address the
conservation and recovery of the
species.
Based on this history of conservation
and management practices, we have
determined that designation of critical
habitat would have few, if any,
additional benefits beyond those that
would result from the species being
listed as threatened.
Benefits of Exclusion—Ladder Ranch
We have determined that significant
benefits would be realized by excluding
the Ranch that include: (1) The
continuance and strengthening of our
cooperative relationship with the Ranch
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; (2) the allowance for continued
meaningful collaboration and
cooperation in surveys and research as
we work towards recovery of the
species; and (3) the provision of
conservation benefits to the Las Animas
Creek ecosystem and the western
yellow-billed cuckoo and its habitat that
might not otherwise occur. The Ranch is
an important land manager in the Las
Animas Creek, a tributary to the Rio
Grande. The surveys, conservation,
restoration and management
information submitted by the Ranch
document that meaningful collaborative
and cooperative work for the western
yellow-billed cuckoo and other listed or
sensitive species and their habitat will
continue on their land. Through their
Trust Agreement with The Nature
Conservancy, the Ranch has committed
to future management, protections of
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habitat and water availability, and
survey activities. We have determined
that the results of these activities
promote long term protection and
conserve the western yellow-billed
cuckoo and its habitat on the Ranch.
The benefits of excluding this area from
critical habitat will encourage the
continued conservation, land
management, and coordination with the
Service by granting the Ranch’s request
for exclusion and acknowledging their
history of conservation for the species.
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Benefits of Exclusion Outweigh the
Benefits of Inclusion—Ladder Ranch
We have determined that the benefits
of exclusion of Ladder Ranch, with the
implementation of actions for
conservation of western yellow-billed
cuckoo habitat, outweighs the benefits
of inclusion. The benefits of including
the Ranch in critical habitat are low,
and are limited to educational benefits
since these lands are privately owned
and the trigger for section 7 consultation
for adverse modification of habitat due
to critical habitat is lacking. Past,
present, and future coordination with
the landowner has provided and will
continue to provide sufficient
educational benefits regarding western
yellow-billed cuckoo habitat and
conservation needs on these lands, such
that there would be minimal additional
educational benefit from designation of
critical habitat. The benefits of
excluding this area from designation as
critical habitat for the western yellowbilled cuckoo are significant, and
include encouraging the continuation of
adaptive management measures such as
monitoring, surveys, research,
enhancement, and habitat protection
that the Ranch currently implements
and plans for the future. The exclusion
of this area will likely also provide
additional benefits to the species by
encouraging and maintaining a
cooperative working relationship with
the Ranch. We find that the benefits of
excluding this area from critical habitat
designation outweigh the benefits of
including this area.
Exclusion Will Not Result in Extinction
of the Species—Ladder Ranch
We have determined that exclusion of
areas of the Ranch will not result in
extinction of the species, nor hinder its
recovery because management by The
Nature Conservancy and Turner Ranch
Properties will ensure the long-term
persistence and protection of western
yellow-billed cuckoo habitat at the
Ranch, and because the Ranch is
committed to greater conservation
measures on their land than would be
available through the designation of
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critical habitat. In addition, as discussed
above under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
absent the designation of critical habitat,
and thus will protect the species against
extinction. Accordingly, we have
determined approximately 608 ac (246
ha) of land within Unit 40 (NM–9)
Animas owned by Turner Ranch
Properties should be excluded under
subsection 4(b)(2) of the Act because the
benefits of exclusion outweigh the
benefits of inclusion and will not cause
the extinction of the species.
Unit 41 (NM–10) Selden Canyon and
Radium Springs
In New Mexico, along the lower Rio
Grande south of Caballo Reservoir, the
Elephant Butte Irrigation District (EBID)
and the El Paso County Water
Improvement District No. 1 (EPWD)
manages the water from the Rio Grande
in Elephant Butte Reservoir for
agricultural use, and the International
Boundary and Water Commission
(IBWC) (a Federal Agency) is
responsible for maintaining levees and
channel irrigation facilities, and
floodway management. The entire
approximately 237 ac (96 ha) of Selden
Canyon and Radium Springs Unit 41
has been identified for exclusion from
critical habitat. Together, the EBID,
EPWD, and IBWC have planned and
implemented a large-scale riparian
habitat improvement project along the
lower Rio Grande from Percha Dam to
American Dam (termed the lower Rio
Grande Elephant Butte Irrigation District
Canalization and Conservation Project).
The lower Rio Grande south of
Caballo Reservoir is managed by the
IBWC, whose mission is to provide binational solutions to issues that arise
during the application of United
States—Mexico treaties regarding
boundary demarcation, national
ownership of waters, sanitation, water
quality, and flood control in the border
region. Water deliveries to downstream
water users for irrigation and other
purposes are managed by EBID which
operates, maintains, and owns the
irrigation distribution system. This
irrigation distribution system was
constructed by Reclamation and
includes canals, laterals, drains, wasteways, and maintenance roads on both
riverbanks, and structures. State statutes
provide for the equitable distribution of
water from the Elephant Butte Reservoir
to all of its water users and generally
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govern how EBID operates and manages
the water it provides to its users.
Prior to the listing of the western
yellow-billed cuckoo, IBWC’s
management of the lower Rio Grande
emphasized canalization to facilitate
efficient water deliveries and flood
control. As a result, the channel
narrowed and degraded, with limited
areas for overbank flooding to support
expansive native riparian communities.
The vast majority of floodplains, which
would have formerly supported native
riparian vegetation, including some
western yellow-billed cuckoo habitat,
are now subject to substantial human
impacts by agriculture, urbanization,
recreation, vegetation encroachment and
management, grazing, fire, and other
stressors. IBWC has worked for ten years
to develop habitat restoration areas
under a 2009 Record of Decision. From
2009 to 2019, IBWC planted
approximately 123,000 trees and shrubs
on more than 500 ac (202 ha) of
restoration sites, with about 100 ac (40
ha) targeting the creation of native
canopy woodland habitat that will
eventually be beneficial to the western
yellow-billed cuckoo and developed a
River Management Plan in 2014 (IBWC
2014, entire). Additionally, the practice
of mowing willow trees has been
ceased, which has already added to the
distribution and abundance of riparian
vegetation. Plus, western yellow-billed
cuckoo surveys have and will continue
to occur, as will vegetation monitoring.
In 2016, IBWC updated their River
Management Plan to incorporate the
western yellow-billed cuckoo (IBWC
2016, entire) and includes conservation
measures such as avoidance areas
around western yellow-billed cuckoo
observations, formal surveys to be
completed on an annual basis, and
restoration features to target western
yellow-billed cuckoo habitat suitability.
Measures to protect the western yellowbilled cuckoo as well as habitat
restoration sites targeting potential
cuckoo habitat are included in the
updated River Management Plan. The
goal is to provide western yellow-billed
cuckoo habitat in the lower Rio Grande,
while still delivering water, as required
by IBWC and EBID. The concerted effort
by multiple agencies and groups to
improve habitat in this reach of the Rio
Grande has already provided habitat
benefits to the southwestern willow
flycatcher and are expected to provide
benefit to the western yellow-billed
cuckoo as well. EBID and EPWD have
voluntarily worked with NFWF to
develop a water transaction program
that will allow IBWC and other partners
to purchase or lease water that can be
used to flood riparian habitat similar to
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an agricultural crop. The participation
by EBID is crucial to the continued
habitat improvement of this river reach
for the benefit of the western yellowbilled cuckoo. The number of estimated
western yellow-billed cuckoo territories
detected annually in this unit from 2014
to 2019 ranged from 2 to 7 (Reclamation
2019, p. 46).
Benefits of Inclusion—Canalization and
Conservation Project, NM
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
There may be some benefits from the
designation of critical habitat along the
lower Rio Grande, primarily because it
would require Federal agencies to
perform additional review of their
project implementation. While this area
was not previously designated as
western yellow-billed cuckoo critical
habitat, the IBWC has already
undergone section 7 consultation due to
the occurrence of southwestern willow
flycatchers and western yellow-billed
cuckoos along the lower Rio Grande.
With the implementation of the western
yellow-billed cuckoo conservation
actions included in the Canalization and
Conservation Project, which are
expected to avoid the species in
construction activities and result in
more breeding habitat and territories,
we provided concurrence to IBWC’s
determination that their actions would
not likely to adversely affect the western
yellow-billed cuckoo (Service 2017, pp.
1–2). Any future Federal projects
implemented by other agencies with
responsibilities along the lower Rio
Grande, such as Federal Highway
Administration, or from the BLM on
surrounding lands, would require
evaluation under section 7 of the Act.
However, because western yellow-billed
cuckoos occur along the lower Rio
Grande during the breeding season,
exhibit a certain amount of site fidelity
and their habitat is protected due to the
long-term and extensive western yellowbilled cuckoo habitat conservation
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benefits resulting from the EBID’s
Canalization and Conservation Project,
the incremental benefits of designating
critical habitat at Selden Canyon and
Radium Springs are minimized.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high conservation value for
certain species. Any information about
the western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation
activities, is valuable. The designation
of critical habitat may also inform
implementation of other Federal laws,
such as NEPA or the Clean Water Act.
These laws analyze the potential for
projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
laws.
We have determined that there would
be little, if any educational and
informational benefit gained from
including the lower Rio Grande within
the designation because this area is well
known as an important area for western
yellow-billed cuckoo management and
recovery. For example, Federal agencies
and stakeholders integral to water and
land management along the lower Rio
Grande are involved in conducting
western yellow-billed cuckoo surveys,
initiated section 7 consultation, and
have planned and are implementing
western yellow-billed cuckoo
conservation actions. Consequently, we
have determined that the informational
benefits and support for implementing
other environment regulations have
already occurred through past actions
even in the absence of critical habitat.
Benefits of Exclusion—Canalization and
Conservation Project, NM
The benefits of excluding the lower
Rio Grande at Selden Canyon and
Radium Springs from designated critical
habitat include: (1) Continued and
strengthened effective working
relationships with IBWC, EBID,
Audubon, and other stakeholders and
partners; (2) meaningful collaboration
toward western yellow-billed cuckoo
recovery, including; (3) the
development of a water transaction
program that provides irrigation water
to restoration sites that might not
otherwise occur and that are expected to
provide benefit to western yellow-billed
cuckoos. EBID and constituents are
concerned of the impacts of a critical
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20897
habitat designation on their abilities to
manage their water rights, as stated in
their comments on the revised proposed
rule (see Summary of Comments and
Recommendations). Through fostering a
cooperative working relationship with
EBID, IBWC and others conducting
surveys and habitat monitoring, and
undertaking habitat restoration and
enhancement projects are realizing
western yellow-billed cuckoo
conservation benefits. Without EBID’s
support in carrying out these restoration
efforts and implementing the water
transaction program, significant
conservation benefits to the western
yellow-billed cuckoo could be lost. For
these reasons, we have determined that
fostering our working relationship with
EBID and their constituents is important
to maintain western yellow-billed
cuckoo conservation benefits.
Proactive voluntary conservation
efforts have and will continue to be
important to achieve western yellowbilled cuckoo recovery. As the water
manager for the lower Rio Grande,
EBID’s willingness to participate and
coordinate the water transaction
program is crucial to creating successful
western yellow-billed cuckoo
restoration sites. Their agreement to
work with IBWC, NFWF, and others
demonstrates that meaningful,
collaborative, and cooperative work for
the western yellow-billed cuckoo and its
habitat will continue within their
jurisdiction. Therefore, we have
determined that the results of these
voluntary restoration activities will
promote long-term protection and
conserve the western yellow-billed
cuckoo and its habitat within the lower
Rio Grande. The benefits of excluding
this area from critical habitat will
encourage the continued cooperation
and development of the water
transaction program which will allow
IBWC to provide water to the habitat
restoration sites.
Excluding the lower Rio Grande from
the critical habitat designation that are
within the jurisdiction of IBWC will
provide significant benefits to the
western yellow-billed cuckoo through
sustaining and enhancing the working
relationship between the Service, IBWC,
EBID, and other stakeholders. The
willingness of IBWC and EBID to work
with the Service on innovative ways to
manage and develop western yellowbilled cuckoo habitat will reinforce our
partnership that is important in order to
achieve western yellow-billed cuckoo
recovery. We can often achieve greater
conservation through voluntary actions
than through implementing a critical
habitat regulation on a project-byproject basis.
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By excluding the Rio Grande south of
Caballo Dam in New Mexico from
critical habitat designation, we are also
encouraging new partnerships with
other landowners and jurisdictions to
protect the western yellow-billed
cuckoo and other listed or sensitive
species. We consider this voluntary
partnership in conservation vital to our
understanding of the status of species
on non-Federal lands and necessary for
us to implement recovery actions such
as habitat protection and restoration,
and beneficial management actions for
species.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Canalization and
Conservation Project, NM
We have reviewed and evaluated the
lower Rio Grande at Selden Canyon and
Radium Springs, and have concluded
that the benefits of exclusion under
section 4(b)(2) of the Act outweigh the
benefits of including these areas as
western yellow-billed cuckoo critical
habitat. The incremental regulatory
benefits of including these lands within
the critical habitat designation are
minimized because the regulatory,
educational, and ancillary benefits that
would result from critical habitat
designation are similar to the benefits
already afforded through the IBWC 2016
River Management Plan and protections
associated with the listing of the
western yellow-billed cuckoo. In
addition, the 2017 Biological
Assessment associated with IBWC’s
Long-Term River Management of the Rio
Grande Canalization Project (IBWC
2017, entire) commits to not removing
any nesting habitat for western yellowbilled cuckoos or otherwise causing
displacement of the species. The
implementation of IBWC collaborative
conservation project provides for
significant conservation, management,
improvement, and protection of habitat
for western yellow-billed cuckoo
conservation.
The Service has created close
partnerships through the development
of IBWC’s restoration plan, which
incorporates protections and
management objectives for the western
yellow-billed cuckoo and the habitat
upon which it depends for breeding,
sheltering, and foraging activities. The
conservation strategy identified in
IBWC’s 2016 River Management Plan,
along with our close coordination with
IBWC, EBID and other partners,
addresses the identified threats to
western yellow-billed cuckoos and its
habitat. These actions serve to manage
and protect habitat needed for western
yellow-billed cuckoo above those
conservation measures which may be
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required if the area was designated as
critical habitat.
Exclusion of these lands from critical
habitat will help preserve the
partnerships we have developed with
local jurisdictions and project
proponents through the development
and ongoing implementation of their
conservation plan. These partnerships
are focused on western yellow-billed
cuckoo conservation and securing
conservation benefits that will lead to
recovery. Because we now have a
consistent western yellow-billed cuckoo
population along the lower Rio Grande,
we are relying on the conservation
efforts of the many stakeholders to
create, manage, and maintain western
yellow-billed cuckoo habitat. We expect
that the results of implementing these
western yellow-billed cuckoo
conservation actions will generate
benefits beyond those that could be
achieved from project-by-project
evaluation through a critical habitat
designation. The conservation gains to
the western yellow-billed cuckoo
identified south of Caballo Dam are
more beneficial than designation of
critical habitat because of the
development of the water transaction
program. Our partnership, along with
the 2017 biological opinion for IBWC’s
canalization project and restoration sites
[which includes the 2016 River
Management Plan (updated to
incorporate the western yellow-billed
cuckoo in 2018) and the water
transaction program], ensure
implementation of the protections and
management actions identified within
their plan. Therefore, the relative
benefits of excluding critical habitat on
these lands are substantial and outweigh
the benefits of including the area as
critical habitat.
We have determined that the
additional regulatory benefits of
designating occupied areas as western
yellow-billed cuckoo critical habitat,
such as protection afforded through the
section 7(a)(2) consultation process, are
minimal. Furthermore, the conservation
objectives identified by the IBWC Plan,
in conjunction with our partnership
with the EBID and others will provide
a greater benefit to the species than
critical habitat designation. We also
conclude that the educational and
ancillary benefits of designating critical
habitat for the western yellow-billed
cuckoo at Selden Canyon and Radium
Springs would be negligible because of
the partnership established between the
Service and IBWC, and the management
objectives identified in the biological
assessment and biological opinion.
Therefore, in consideration of the
relevant impact to current and future
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partnerships, as summarized in the
Benefits of Exclusion section above, we
determined the significant benefits of
exclusion outweigh the benefits of
critical habitat designation.
Exclusion Will Not Result in Extinction
of the Species—Canalization and
Conservation Project, NM
We determine that the exclusion of
the lower Rio Grande at Selden Canyon
and Radium Springs from the
designation of critical habitat for the
western yellow-billed cuckoo will not
result in extinction of the species
because current conservation efforts
under IBWC’s River Management Plan
adequately protect the geographical
areas containing the physical or
biological features essential to western
yellow-billed cuckoo conservation. As
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. In our
Biological Opinion, the Service
provided concurrence that
implementation of the IBWC
Canalization and Conservation Project
and associated restoration plans was not
likely to adversely affect the species
(Service 2017, pp. 1–2), and is likely to
benefit the species. Therefore, based on
the benefits described above, we have
determined that this exclusion would
not result in the extinction of the
western yellow-billed cuckoo, and are
excluding the entire 237 ac (96 ha) of
the lower Rio Grande at Selden Canyon
and Radium Springs from this final
critical habitat designation.
Private or Other Non-Federal
Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits
under section 10(a)(1)(B) of the Act
provide for partnerships with nonFederal entities to minimize and
mitigate impacts to listed species and
their habitat. In some cases, HCP
permittees agree to do more for the
conservation of the species and their
habitats on private lands than
designation of critical habitat would
provide alone. We place great value on
the partnerships that are developed
during the preparation and
implementation of HCPs.
CCAAs and SHAs are voluntary
agreements designed to conserve
candidate and listed species,
respectively, on non-Federal lands. In
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exchange for actions that contribute to
the conservation of species on nonFederal lands, participating property
owners are covered by an ‘‘enhancement
of survival’’ permit under section
10(a)(1)(A) of the Act, which authorizes
incidental take of the covered species
that may result from implementation of
conservation actions, specific land uses,
and, in the case of SHAs, the option to
return to a baseline condition under the
agreements. The Service also provides
enrollees assurances that we will not
impose further land-, water-, or
resource-use restrictions, or require
additional commitments of land, water,
or finances, beyond those agreed to in
the agreements.
When we undertake a discretionary
section 4(b)(2) exclusion analysis, we
will always consider areas covered by
an approved CCAA/SHA/HCP, and
generally exclude such areas from a
designation of critical habitat if three
conditions are met:
(1) The permittee is properly
implementing the CCAA/SHA/HCP and
is expected to continue to do so for the
term of the agreement. A CCAA/SHA/
HCP is properly implemented if the
permittee is, and has been, fully
implementing the commitments and
provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
(2) The species for which critical
habitat is being designated is a covered
species in the CCAA/SHA/HCP, or very
similar in its habitat requirements to a
covered species. The recognition that
the Services extend to such an
agreement depends on the degree to
which the conservation measures
undertaken in the CCAA/SHA/HCP
would also protect the habitat features
of the similar species.
(3) The CCAA/SHA/HCP specifically
addresses the habitat of the species for
which critical habitat is being
designated and meets the conservation
needs of the species in the planning
area.
We have determined that the plans,
HCPs, or Agreements identified in Table
3, fulfill the above criteria, and we are
excluding the non-Federal lands
covered by these plans that provide for
the conservation of western yellowbilled cuckoo.
Unit 1 (CA/AZ–1) Colorado River 1 and
Unit 2 (CA/AZ–2) Colorado River 2 and
Unit 3 (AZ–1) Bill Williams River—
Lower Colorado River Multi-Species
Conservation Program (LCR MSCP)
The Lower Colorado River MultiSpecies Conservation Program HCP
(2004, entire) was developed for areas
along the lower Colorado River along
the borders of Arizona, California, and
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Nevada from Lake Mead to Mexico, in
the Counties of La Paz, Mohave, and
Yuma in Arizona; Imperial, Riverside,
and San Bernardino Counties in
California; and Clark County in Nevada.
In 1995, U.S. Department of the Interior
agencies; water, power, and wildlife
resources agencies from Arizona,
California, and Nevada; Native
American tribes; environmental
interests; and recreational interests
agreed to form a partnership to develop
and implement a long-term endangered
species compliance and management
program for the historical floodplain of
the lower Colorado River. The goal was
to facilitate the development of an
ecosystem-based HCP and coordination
with the various LCR MSCP Federal
partners. Reclamation has taken lead for
coordinating activities under the LCR
MSCP.
A Steering Committee provides
oversight to Reclamation’s LCR MSCP
Program Manager, operating under a
Funding and Management Agreement
that was prepared among Federal, State,
local, and tribal party participants (LCR
MSCP 2007, p. 1–3). The potentially
affected parties and other interested
parties established a public process for
developing the required documents and
plans. Various public agencies and other
non-governmental groups have
participated in developing the various
components of the LCR MSCP. The LCR
MSCP primarily covers activities
associated with water storage, delivery,
diversion, and hydroelectric production.
The record of decision was signed by
the Secretary of the Interior on April 2,
2005. An important catalyst of the effort
was a 1997 jeopardy biological opinion
for the southwestern willow flycatcher
issued to Reclamation for lower
Colorado River operations (Service
2005a, entire). The Federal agencies
involved in the LCR MSCP include
Reclamation, Bureau of Indian Affairs
(BIA), NPS, BLM, WAPA, and the
Service. Native American Tribes
involved in the LCR MSCP and owning
lands within the planning area include
the Colorado River Indians Tribes, Fort
Mohave Tribe, Cocopah Tribe,
Chemehuevi Tribe, and Fort Yuma
(Quechan) Tribe.
The LCR MSCP planning area
primarily surrounds proposed western
yellow-billed cuckoo critical habitat
along the lower Colorado River from
Lake Mead to the southerly
international border. Portions of the
Colorado River, Lake Mead, Virgin
River, and Muddy River in Arizona,
Utah, and Nevada are included where
they surround Lake Mead (including the
conservation space of Lake Mead, which
extends up the Colorado River to
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20899
Separation Canyon). Also, a portion of
the Bill Williams River at the Colorado
River confluence at Lake Havasu occurs
within the LCR MSCP planning area.
The LCR MSCP permittees will create
and maintain 4,050 ac (1,639 ha) of
western yellow-billed cuckoo habitat,
reduce the risk of loss of created habitat
to wildfire, replace created habitat
affected by wildfire, and avoid and
minimize operational and management
impacts to western yellow-billed
cuckoos over the 50-year life of the
permit (2005 to 2055) (Lower Colorado
River Multi-Species Conservation
Program 2004, pp. 5–30–5–36, Table 5–
10, 5–58–5–60). Additional research,
management, monitoring, and
protection of western yellow-billed
cuckoos will occur. In addition to
western yellow-billed cuckoo habitat
creation and subsequent management,
the LCR MSCP provides funds to ensure
existing western yellow-billed cuckoo
habitat is maintained. Western yellowbilled cuckoo management associated
with the LCR MSCP is conducted in
conjunction and coordinated with
management occurring on the National
Wildlife Refuges (Bill Williams, Havasu,
Cibola, and Imperial) and Tribal lands
(Colorado River Indians Tribes, Fort
Mohave Tribe, Cocopah Tribe,
Chemehuevi Tribe, and Fort Yuma
(Quechan) Tribe) along the LCR and
within the LCR MSCP planning area.
On the lower Colorado River and Bill
Williams River, we identified 77,726 ac
(31,468 ha) of proposed critical habitat
for exclusion within the LCR MSCP
planning area and off-site conservation
areas of La Paz, Mohave, and Yuma
Counties in Arizona; and Imperial,
Riverside, and San Bernardino Counties
in California. Western yellow-billed
cuckoo management within the
proposed Units in the LCR MSCP
planning area is occurring on National
Wildlife Refuges (Bill Williams, Havasu,
Cibola, and Imperial) and Tribal lands
(Colorado River Indian Tribes, Fort
Yuma (Quechan) Tribe, Cocopah Tribe,
and Fort Mojave Tribe). During the
breeding season the area is considered
to have been occupied at the time of
listing and is currently occupied.
Reclamation has provided protection
and benefits to this species since 2005
and conducts annual monitoring of the
species. Reclamation requested
excluding habitat within the entire
914,200 ac (369,964 ha) LCR MSCP
planning area and off-site conservation
areas (LCR MSCP implementation area)
from critical habitat under the rationale
that conservation measures described in
the LCR MSCP Habitat Conservation
Plan provide protection and benefits to
the yellow-billed cuckoo and its habitat
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(LCRMSCP 2004, pp. 1–506;
Reclamation 2020a, p. 2). Because the
entire 914,200 ac (369,964 ha)
implementation area was not proposed
as critical habitat, we are only analyzing
exclusion of the areas proposed as
critical habitat.
Conservation and development of
western yellow-billed cuckoo and
southwestern willow flycatcher habitat
is a priority for all the Federal, State,
Tribal, and private land managers
within the LCR MSCP planning area. In
particular, the Bill Williams River,
Havasu, Cibola, and Imperial NWRs and
Fort Mohave, Colorado River Indian
Tribe, and Quechan Tribes are
implementing conservation strategies to
manage and enhance riparian resources
along the Colorado River. Reclamation,
in its lead role as Program Manager for
the LCR MSCP, requested exclusion for
areas proposed as critical habitat within
the LCR MSCP boundary. Information
regarding their specific activities and
management on their lands is identified
in our supporting information (Service
2020b, entire).
Benefits of Inclusion—Lower Colorado
River Multi-Species Conservation Plan
(LCR MSCP)
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. The areas within the LCR
MSCP planning area are occupied by
western yellow-billed cuckoos and have
undergone section 7 consultation. There
may be some minor benefits from the
designation of critical habitat along the
length of the LCR for land management
actions because of the additional review
required by Federal actions; most likely
those occurring on Service NWRs, BLM,
and NPS land. The western yellowbilled cuckoo and southwestern willow
flycatcher are well known as a listed
species using the LCR for migration and
for nesting. Because these Federal
agencies manage open space for public
use and wildlife, the types of actions
evaluated would mostly be associated
with recreation, hunting, habitat
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management, and public access, and
possibly some land resource use.
The benefits of western yellow-billed
cuckoo critical habitat designation on
lands managed by Federal partners
within the LCR MSCP planning area are
limited. Reclamation manages lower
Colorado River water storage, river
regulation, and channel maintenance
such that the river stays within its
incised channel and can no longer flow
onto the adjacent floodplain. As a result,
Reclamation has no discretion to change
these water management actions to
allow a better functioning stream to
improve the riparian forest. Improving
the duration, magnitude, and timing of
river flow would generate overbank
flooding, create and recycle riparian
habitat, and, therefore, improve the
quality and abundance of western
yellow-billed cuckoo habitat. Because of
the lack of flooding and the prevention
of overbank flows, the floodplain can no
longer support the pre-dam riparian
forest.
While land managers (BLM, NPS,
Service NWRs and Tribes) along the
LCR floodplain do conduct
discretionary actions on their lands, the
success of their conservation actions
and impacts of other actions to restore
pre-dam riparian forests are limited by
the impacts of water management.
Overall, the riparian forest and western
yellow-billed cuckoo habitat managed
by these land management agencies are
not expected to be harmed further by
site-specific land management actions
because the quality of vegetation has
already been degraded. To the extent
that remaining patches of riparian
habitat and western yellow-billed
cuckoo habitat continue to exist, they
are of great value for western yellowbilled cuckoo conservation. As a result,
past section 7 consultations on land
management agency actions within the
proposed critical habitat along the LCR
show that land management agencies
conserve existing riparian vegetation
and explore innovative strategies
outside of the restrictions on water
management to improve vegetation
quality that could be used by western
yellow-billed cuckoos. Because the
regulated stream flow has caused habitat
degradation and existing water
management operations prevent any
change in water management that can
improve the riparian forest, land
management agencies are unable to
impact these river flow conditions, nor
are they able to impact river flow
conditions through non-discretionary
mandatory reasonable and prudent
measures or alternatives resulting from
any possible future section 7
consultation. Therefore, there are
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limited benefits to designating critical
habitat on lands managed by Federal
and Tribal partners within the LCR
MSCP implementation.
We also have determined that few
additional benefits would be derived
from including the five tribal areas
within the LCR MSCP planning area as
western yellow-billed cuckoo critical
habitat, beyond what will be achieved
through the implementation of their
management plans. No different than
our description above, we expect that
the degraded environmental baseline
caused by water storage, river
regulation, and channel maintenance
would cause similar evaluations and
conclusions in section 7 consultations
on tribal lands within the LCR MSCP
planning area. Additionally, because
these tribes are also implementing their
Flycatcher Management Plans or
Flycatcher and Cuckoo Management
Plans that preserve existing habitat,
similarly within the limitations caused
by regulation of the Colorado River,
there are likely few regulatory benefits
to be gained from a designation of
western yellow-billed cuckoo critical
habitat.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high conservation value for
certain species. Critical habitat may
signal the presence of sensitive habitat
that could otherwise be missed in the
review process for these other
environmental laws.
Some educational and conservation
benefit from reinforcing other
environmental laws and regulations
may also be gained from including the
LCR MSCP planning area within the
western yellow-billed cuckoo critical
habitat designation. However, this
conservation benefit can also be
accomplished through ongoing
education being conducted by the LCR
MSCP. As long as the educational
benefit is ongoing, the support of other
laws and regulations is minimized.
Ongoing outreach that educates local
communities about the LCR MSCP
program activities conducted to benefit
species along the river including
conservation-themed community
events, professional conferences, Project
Water Education for Teachers (Wet)
workshops, school programs, youth
conservation corps coordination,
volunteer opportunities, and outdoor
expos (LCR MSCP 2020, pp. 303–304).
The annual Colorado River Terrestrial
and Riparian meeting and Las Vegas
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Science and Technology Festival are
two events funded by the MSCP.
Although this is a well-known
southwestern willow flycatcher and
western yellow-billed cuckoo
management area, we continue to learn
about these species’ biology and
potential impacts from proposed
projects may emerge at any time.
Educating individuals, agencies, and
organizations with existing or updated
western yellow-billed cuckoo biology is
an ongoing process. Through the
development and implementation of the
LCR MSCP, the 2014 and 2020 western
yellow-billed cuckoo critical habitat
proposals, ongoing studies, the
development of land management plans,
and the creation of specific tribal
management plans, the value of the LCR
and riparian habitat for the western
yellow-billed cuckoo is well
established. Some educational benefits
have already occurred through past
actions even though the LCR MSCP
planning area is not currently
designated as critical habitat. The
importance of the LCR MSCP
implementation area for western yellowbilled cuckoo conservation to meet
conservation goals established for the
LCR is well understood by managing
agencies, Native American tribes,
private industry, and public, State, and
local governments. The LCR MSCP
provides new information gained from
its studies to all parties through reports,
meetings, coordination, and outreach.
Management recommendations
developed from these studies include
avoiding disturbance activities in
occupied habitat through the end of
September to allow late-breeders to raise
young and the need to develop and
implement management actions that
ensure long-term suitability of created
habitat.
Benefits of Exclusion—Lower Colorado
River Multi-Species Conservation Plan
(LCR MSCP)
The benefits of excluding the LCR
MSCP management areas from the
designation are considerable, and
include the conservation measures
described above (land acquisition,
management, and habitat development)
and those associated with implementing
conservation through enhancing and
developing partnerships.
A small benefit of excluding the LCR
from critical habitat includes some
reduction in administrative costs
associated with engaging in the critical
habitat portion of section 7
consultations due the area being
occupied and the species being listed as
threatened. Administrative costs
include time spent in meetings,
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preparing letters and biological
assessments, and in the case of formal
consultations, the development of the
critical habitat component of a
biological opinion. However we
anticipate that the costs to perform the
additional critical habitat and associated
adverse modification analysis would not
be significant.
The exclusion of the LCR from critical
habitat as a result of the LCR MSCP can
help facilitate other cooperative
conservation activities with other
similarly situated dam operators or
landowners. Continued cooperative
relations with the States and a myriad
of stakeholders is expected to influence
other future partners and lead to greater
conservation than would be achieved
through multiple site-by-site, project-byproject efforts, and associated section 7
consultations. With the current
degraded condition of the
environmental baseline and limitations
associated with changes to dam
operations, the LCR MSCP conservation
measures commit the program to create
and manage at least 5,940 ac (2,404 ha)
of cottonwood-willow and 1,320 ac (534
ha) of honey mesquite land cover types
to provide habitat for 14 species
including the western yellow-billed
cuckoo (Reclamation 2020a, p. 7). A
mosaic of these habitat types in patches
of at least 25 ac (10 ha) and totaling at
least 4,050 ac (1,639 ha) is required to
be created and managed for western
yellow-billed cuckoos (LCR MSCP 2004,
entire). Between 2005 and 2019, the
LCR MSCP has created 4,117 ac (1,666
ha) of cottonwood-willow and 1,800 ac
(728 ha) of mesquite habitat (LCR MSCP
2020, pp. 14, 15, 94; Reclamation 2020a,
p. 7) in critical habitat Units 1, 2, and
3.
The benefits of excluding lands
within the LCR MSCP plan area from
critical habitat designation include
recognizing the value of conservation
benefits associated with these HCP
actions; encouraging actions that benefit
multiple species; encouraging local
participation in development of new
HCPs; and facilitating the cooperative
activities provided by the Service to
landowners, communities, and counties
in return for their voluntary adoption of
the HCP.
The LCR MSCP will help generate
important status and trend information
for western yellow-billed cuckoo
recovery. In addition to specific western
yellow-billed cuckoo conservation
actions, the development and
implementation of this HCP provides
regular monitoring of western yellowbilled cuckoo habitat, distribution, and
abundance over the 50-year permit.
Most of the western yellow-billed
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cuckoos successfully breeding along the
LCR since 2005 have been in habitat
created and managed by the LCR in five
created conservation areas: Beal Lake
Conservation Area on Havasu NWR,
Cibola NWR Unit #1 Conservation Area,
Cibola Valley Conservation Area, Palo
Verde Ecological Reserve on California
Department of Fish and Wildlife land,
and Yuma East Wetlands on city of
Yuma, Quechan Indian Tribe lands, and
Arizona Game and Fish Department
lands (LCR MSCP 2020, pp. 162–163,
179–249; Reclamation 2020a, pp. 7–8).
Although nesting was not confirmed in
other sites, western yellow-billed
cuckoos were detected at Planet Ranch
on the Bill Williams River, Laguna
Division Conservation Area near Yuma,
and Hunters Hole at the southern end of
the Limitrophe (Parametrix, Inc. and
Southern Sierra Research Station 2019,
entire). They have also been
documented nesting in other habitat
areas between southern Nevada and the
Southern International Border with
Mexico.
Failure to exclude the LCR MSCP
planning area could be a disincentive
for other entities contemplating
partnerships as it would be perceived as
a way for the Service to impose
additional regulatory burdens once
conservation strategies have already
been agreed to through our permitting
process. Private entities are motivated to
work with the Service collaboratively to
develop voluntary HCPs because of the
regulatory certainty provided by an
incidental take permit under section
10(a)(1)(B) of the Act with the No
Surprises Assurances. This
collaboration often provides greater
conservation benefits than could be
achieved through strictly regulatory
approaches, such as critical habitat
designation. The conservation benefits
resulting from this collaborative
approach are built upon a foundation of
mutual trust and understanding. It has
taken considerable time and effort to
establish this foundation of mutual trust
and understanding, which is one reason
it often takes several years to develop a
successful HCP. Excluding this area
from critical habitat would help
promote and honor that trust by
providing greater certainty for
permittees that once appropriate
conservation measures have been agreed
to and consulted on for listed and
sensitive species additional consultation
will not be necessary.
HCP permittees and stakeholders
submitted comments that they view
critical habitat designation along the
LCR as unwarranted and an unwelcome
intrusion to river operations, and an
erosion of the regulatory certainty that
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is provided by their incidental take
permit and the No Surprises assurances.
Additionally, the LCR MSCP partners
and stakeholders sent comments of
support for exclusion of all the LCR
MSCP partners within the planning
area, specifically Service NWRs because
they were not initially identified as
locations we were considering for
exclusion. Having applicants
understand the Service’s commitment
will encourage continued partnerships
with these permittees that could result
in additional conservation plans or
additional lands enrolled in HCPs.
Our collaborative relationships with
the LCR MSCP permittees clearly make
a difference in our partnership with the
numerous stakeholders involved and
influence our ability to form
partnerships with others. Concerns over
perceived added regulation potentially
imposed by critical habitat harms this
collaborative relationship by leading to
distrust. Our experience has
demonstrated that successful
completion of one HCP has resulted in
the development of other conservation
efforts and HCPs with other landowners.
Partners associated with the LCR MSCP
also established HCPs with the Service
in central Arizona.
There are additional considerable
benefits from excluding the areas owned
by or held in trust for the five tribes
along the LCR including the
advancement of our partnership with
the tribes and for the tribes to develop
and implement tribal conservation and
natural resource management plans for
their lands and resources, which
includes the western yellow-billed
cuckoo. Benefits associated with
excluding tribes and other landowners
and managers also include: (1) The
maintenance of effective working
relationships to promote the
conservation of the western yellowbilled cuckoo and its habitat; (2) the
allowance for continued meaningful
collaboration and cooperation; (3) the
provision of conservation benefits to
riparian ecosystems and the western
yellow-billed cuckoo and its habitat that
might not otherwise occur; and (4) the
reduction or elimination of
administrative and/or project
modification costs as analyzed in the
economic analysis.
During the development of the 2014
and 2020 western yellow-billed cuckoo
critical habitat proposals, we sought and
received input from tribes. We provided
technical assistance to tribes requesting
assistance to develop measures to
conserve the western yellow-billed
cuckoo and its habitat on their lands.
These measures are contained within
the management and conservation plans
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that we have in our supporting record
for this decision (see discussion above).
These proactive actions were conducted
in accordance with Secretarial Order
3206, ‘‘American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Endangered Species Act’’ (June
5, 1997); the relevant provision of the
Departmental Manual of the Department
of the Interior (512 DM 2); and
Secretarial Order 3317, ‘‘Department of
Interior Policy on Consultation with
Indian Tribes’’ (December 1, 2011). We
have determined that these tribes
should be the governmental entities to
manage and promote western yellowbilled cuckoo conservation on their
lands. During our communication with
these tribes, we recognized and
endorsed their fundamental right to
provide for tribal resource management
activities, including those relating to
riparian ecosystems.
The benefits of excluding this HCP
from critical habitat designation include
relieving Federal agencies, State
agencies, landowners, tribes,
communities, and counties of any
additional regulatory burden for water
management actions that might be
imposed by critical habitat. The LCR
MSCP took many years to develop and,
upon completion, became a river long
conservation plan that is consistent with
the western yellow-billed cuckoo
recovery objectives within the planning
area. This HCP provides western
yellow-billed cuckoo conservation
benefits and commitments toward
habitat development and management,
and western yellow-billed cuckoo
surveys and studies that could not be
achieved through project-by-project
section 7 consultations. Imposing an
additional regulatory review after the
HCP is completed, solely as a result of
the designation of critical habitat, may
undermine conservation efforts and
partnerships in many areas. In fact, it
could result in the loss of species’
benefits if future participants abandon
the voluntary HCP process. Designation
of critical habitat along the LCR could
be viewed as a disincentive to those
entities currently developing HCPs or
contemplating them in the future. We
find the section 7 consultation process
for a designation of critical habitat,
above and beyond that which is already
required for the species, is unlikely to
result in additional protections for the
western yellow-billed cuckoo on lands
within the LCR MSCP planning and
implementation area (which includes
NPS, Service, BLM, tribal lands, and
non-Federal lands).
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Benefits of Exclusion Outweigh the
Benefits of Inclusion—Lower Colorado
River Multi-Species Conservation Plan
(LCR MSCP)
We have determined that the benefits
of excluding the LCR MSCP planning
area along the LCR within the States of
Arizona and California from the
designation of western yellow-billed
cuckoo critical habitat on all Federal,
State, Tribal, and non-Federal lands
outweigh the benefits of inclusion. In
our determination, we considered and
found that the HCP meets our criteria
for exclusion for HCPs (see Private or
Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of
the Act). Implementation of western
yellow-billed cuckoo conservation
included within the LCR MSCP
planning area, combined with the
conservation efforts of other land
managers, has already created and will
continue to create and manage habitat
that benefits breeding western yellowbilled cuckoo and other riparian
dependent species.
Under section 7 of the Act, critical
habitat designation will provide little
additional benefit to the western yellowbilled cuckoo within the boundaries of
the LCR MSCP. The catalyst for the LCR
MSCP was largely a result of the
jeopardy biological opinion (Service
1997, entire) for the southwestern
willow flycatcher to Reclamation for its
LCR operations (Service 2005a, entire).
The Law of the River, which protects
the regulation and delivery of Colorado
River water to the western United
States, prevents altering the regulation
of the Colorado River for the benefit of
a more naturally functioning system,
which can create and recycle
southwestern willow flycatcher and
western yellow-billed cuckoo habitat.
As a result, the development of the LCR
MSCP and its Implementing Agreement
are designed to ensure southwestern
willow flycatcher and western yellowbilled cuckoo conservation within the
planning area and includes management
measures to protect, restore, enhance,
manage, research, and monitor western
yellow-billed cuckoo habitat (along the
Colorado River and at mitigation sites).
The adequacy of LCR MSCP
conservation measures to protect the
then candidate western yellow-billed
cuckoo and its habitat have undergone
evaluation under a section 7
consultation conference opinion under
the Act, reaching a non-jeopardy
conclusion. Therefore, the benefit of
including the LCR MSCP planning area
to require section 7 consultation for
critical habitat is minimized.
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The commitment by the LCR MSCP
partners to western yellow-billed
cuckoo conservation throughout the
planning area is considerable and we
have determined that the LCR MSCP has
met the conditions to be excluded from
critical habitat as identified above (see
Private or Other Non-Federal
Conservation Plans Related to Permits
Under Section 10 of the Act). The LCR
MSCP partners commit through
implementation of their permit to
developing, managing, and protecting
4,050 ac (1,639 ha) of western yellowbilled cuckoo nesting habitat and has
already created 4,117 ac (1,666 ha) of
cottonwood-willow and 1,800 ac (728
ha) of mesquite habitat within the
boundaries of their planning area (LCR
MSCP 2020, pp. 5, 94; Reclamation
2020a, p. 7). Additional habitat to be
created is in the planning stage. As
described above, much of these habitats
are expected to occur within irrigated
agricultural fields adjacent to river. The
culmination of these efforts is expected
to maintain, develop and improve
migration, dispersal, sheltering, and
foraging habitat; develop
metapopulation stability; and protect
against catastrophic losses.
Additional riparian habitat along the
river that can be used by western
yellow-billed cuckoos, mostly as
migratory habitat and also as nesting
habitat, occurring across thousands of
acres (hectares), will collectively be
restored, planted, managed, and
maintained on NWRs (Cibola, Imperial,
and Bill Williams River), Federal lands
(NPS and BLM), and tribal lands
(Colorado River Indians Tribes, Fort
Mohave Tribe, Cocopah Tribe,
Chemehuevi Tribe, and Fort Yuma
(Quechan) Tribe) along the LCR within
the area covered by the LCR MSCP.
This HCP involved public
participation through public notices and
comment periods associated with the
NEPA process prior to being approved.
Additionally, this HCP is one of the
largest HCPs in the country, with an
extensive list of stakeholders and
permittees from California, Arizona, and
Nevada that took about a decade to
complete. Therefore, managing agencies,
States, counties, cities, and other
stakeholders are aware of the
importance of the LCR for the western
yellow-billed cuckoo. For these reasons,
although we have determined that
designation of critical habitat along the
LCR MSCP planning area would provide
some additional educational benefit,
much of this is already occurring
through the LCR MSCP.
Covered activities under the LCR
MSCP are not the only possible impacts
to western yellow-billed cuckoo habitat
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along the LCR. There are continued
projects developed, carried out, funded,
and permitted by Federal agencies such
as Reclamation and BLM that are not
covered by the LCR MSCP. Fire
management, habitat restoration,
recreation, and other activities have the
ability to adversely affect the western
yellow-billed cuckoo and critical
habitat. Minor changes in habitat
restoration, fire management, and
recreation could occur as result of a
critical habitat designation in the form
of additional discretionary conservation
recommendations to reduce impacts to
critical habitat. Therefore, if the LCR
was designated as critical habitat, there
may be some benefit through
consultation under the adverse
modification standard for actions not
covered by the LCR MSCP. But, as
explained above, the habitat along the
LCR is so degraded that it is unlikely
that a section 7 consultation under an
adverse modification standard would
result in mandatory elements (i.e.,
reasonable and prudent alternatives)
within the LCR MSCP planning area.
Excluding the LCR within the LCR
MSCP planning area would eliminate
some small additional administrative
effort and cost during the consultation
process pursuant to section 7 of the Act.
Excluding the LCR MSCP planning area
would continue to help foster
development of future HCPs and
strengthen our relationship with
Arizona, California, and Nevada
permittees and stakeholders,
eliminating regulatory uncertainty
associated with permittees and
stakeholders. Excluding the LCR MSCP
planning area eliminates any possible
risk to water storage, delivery, diversion
and hydroelectric production to
Arizona, California, and Nevada, and
therefore significant potential economic
costs due to a critical habitat
designation. We have therefore
concluded that the benefits to the
western yellow-billed cuckoo and its
habitat as result of the improvement,
maintenance, and management
activities attributed to the LCR MSCP,
and those additional efforts conducted
by NWRs, Tribes, and other land
managers, outweigh those that would
result from the addition of a critical
habitat designation. We have therefore
excluded these lands from the final
critical habitat designation pursuant to
section 4(b)(2) of the Act.
Exclusion Will Not Result in Extinction
of the Species—Lower Colorado River
Multi-Species Conservation Plan (LCR
MSCP)
We have determined that exclusion of
the Colorado River within the LCR
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20903
MSCP planning area will not result in
extinction of the western yellow-billed
cuckoo. As discussed above under
Effects of Critical Habitat Designation
Section 7 Consultation, if a Federal
action or permitting occurs, the known
presence of western yellow-billed
cuckoos or their habitat would require
evaluation under the jeopardy standard
of section 7 of the Act, even absent the
designation of critical habitat, and thus
will protect the species against
extinction. Second, the amount of
suitable habitat being created as result
of implementing the LCR MSCP,
combined with management by other
land managers, is expected to be able to
provide substantial western yellowbilled cuckoo breeding habitat. The
Implementation Agreement establishes a
50-year commitment to accomplish
these tasks. Overall, we expect greater
western yellow-billed cuckoo
conservation through these
commitments than through project-byproject evaluation implemented through
a critical habitat designation.
Accordingly, we have determined that
the LCR MSCP area should be excluded
under subsection 4(b)(2) of the Act
because the benefits of exclusion
outweigh the benefits of inclusion and
will not cause the extinction of the
species and we are excluding the entire
Unit 1: CA/AZ–1 (82,138 ac (33,240
ha)), Unit 2: CA/AZ–2 (23,589 ac (9,546
ha)) and Unit 3: AZ–1 (3,389 ac (1,371
ha)) that occur in the LCR MSCP
planning area along the Colorado River
and Bill Williams River from the final
critical habitat designation.
Unit 11 (AZ–9A and AZ–9B) Horseshoe
Dam—Salt River Project Horseshoe
Bartlett HCP
We identified 3,974 ac (1,608 ha)
within Unit 11 as proposed critical
habitat in and adjacent to the water
storage area of Horseshoe Reservoir and
approximately 4 mi (6 km) downstream
from the final designation. The
Horseshoe Reservoir and Bartlett Dam
are part of the Salt River Project (SRP)
constructed by Reclamation. The SRP
was part of a Federal action started in
1917 to construct irrigation facilities
along the Salt and Verde River in
Maricopa and Gila Counties, Arizona.
Lands surrounding the reservoir and
stream are managed by the Tonto
National Forest. Horseshoe Reservoir
facilities were completed in 1945 and
management and operation of the
facilities was turned over to two
entities: Salt River Project Agricultural
Improvement and Power District (a
political subdivision of the State of
Arizona) and the Salt River Valley
Water Users’ Association (a private
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corporation). The umbrella name for
these two entities is also referred to as
the Salt River Project (SRP), and these
two entities have the authority to care
for, operate, and maintain all project
facilities including Horseshoe and
Bartlett Dams. In 2002, the listed
southwestern willow flycatcher was
discovered nesting in trees on the
Horseshoe lakebed and downstream of
Horseshoe Dam along the Verde River
(SRP 2008, p. 6). As a result, SRP began
discussions with the Service about
developing a HCP, with the
southwestern willow flycatcher being a
primary focus of the HCP. Because the
habitat managed for southwestern
willow flycatchers is also used by
nesting and foraging western yellowbilled cuckoo, separate habitat
mitigation requirements for the western
yellow-billed cuckoo were not
identified in the HCP. Because SRP
operates Horseshoe and Bartlett Dams
on Federal lands within Tonto National
Forest, the Service issued an incidental
take permit to SRP under section
10(a)(1)(B) of the Act in 2008.
The HCP is being properly
implemented and identifies the
southwestern willow flycatcher and the
western yellow-billed cuckoo as covered
species, and impacts to nesting habitat
and breeding attempts from raising and
lowering of the water stored behind
Horseshoe Dam are covered activities
for the duration of the permit, thereby
meeting criteria 1 and 2 above for
consideration for exclusion (see Private
or Other Non-Federal Conservation
Plans Related to Permits Under Section
10 of the Act). The biological goals of
the HCP will be achieved with the
following measures: (1) Managing water
levels in Horseshoe Lake to the extent
practicable to support tall dense
vegetation at the upper end of the lake
for southwestern willow flycatcher and
western yellow-billed cuckoos; and (2)
acquiring and managing southwestern
willow flycatcher and western yellowbilled cuckoo habitat along rivers in
central Arizona to provide a diversity of
geographic locations with habitat like
Horseshoe Lake (SRP 2008, pp. ES–4, 9).
These measures meet criteria 3 above for
exclusion under Private or Other NonFederal Conservation Plans Related to
Permits Under Section 10 of the Act.
Optimum operation of Horseshoe and
Bartlett is predicted to periodically
result in the unavailability,
modification, or loss of up to 200 ac (81
ha) of occupied southwestern willow
flycatcher and western yellow-billed
cuckoo habitat on average. If
circumstances change, adaptive
management will be implemented to
address impacts on up to 200 ac (81 ha)
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of additional occupied southwestern
willow flycatcher and western yellowbilled cuckoo habitat at Horseshoe Lake
(SRP 2008, p. ES–5). On-site and off-site
minimization and mitigation measures
are identical for both species (SRP 2008,
p. 169). Under the Horseshoe and
Bartlett Dam HCP, SRP owns and
manages the Gila River mitigation
properties near Fort Thomas in Unit 22
(AZ–20; Gila River 1). We identified
these properties as critical habitat, but
because SRP supports including them as
critical habitat, we did not consider
them for exclusion (SRP 2014, entire).
SRP established an irrevocable trust to
fund this HCP in January 2011, with
approximately $6.0M to support the
estimated $300,000 on average annual
expenditures over the life of the permit
and in perpetuity costs for some of the
mitigation obligations (SRP 2019a, p.
25).
The action area, as described in the
Horseshoe Bartlett HCP, prepared for
SRP by ERO Resources Corporation
(SRP 2008, entire), extends farther from
the location of these dams to areas
where the impacts of water storage and
delivery may occur because of the
impacts to other species caused by
water regulation. Specific southwestern
willow flycatcher-related impacts were
only identified within the high water
mark of the Horseshoe Lake
conservation space between 2,026 ft
(618 m) in elevation and Horseshoe
Dam. The area within Horseshoe Lake is
Federal land managed by the USFS and
Reclamation, and SRP maintain interest
in water management of the lake. A triparty agreement between SRP, USFS,
and Reclamation establishes a
framework to maintain these water
storage areas for their intended purpose.
The Tonto National Forest continues to
manage this area for recreation and
other public land uses (SRP 2008, p. 16).
Periodic changes in the level of the
lake water of the Horseshoe Lake
conservation space due to dam
operations and water storage can result
in the establishment and maintenance of
nesting western yellow-billed cuckoo
habitat. This is because western yellowbilled cuckoos nest or otherwise use
vegetation that grows in the dry lakebed
within the conservation space. Rising
water levels or excessive drying can
cause temporary losses and
unavailability of this nesting habitat.
The amount and timing of water stored
in Horseshoe Lake can vary widely from
year-to-year because of the relatively
small amount of water storage space in
Horseshoe Lake, the erratic nature of
precipitation and run-off, and the arid
nature of the Sonoran Desert.
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It is estimated that between 60 to 450
ac (24 to 182 ha) of western yellowbilled cuckoo nesting habitat will occur
annually within the high water mark of
Horseshoe Lake over the 50-year permit
period of this HCP (SRP 2008, p. 120).
The annual average of western yellowbilled cuckoo habitat estimated to occur
within the lake is 260 ac (105 ha) (SRP
2008, p. 120). In total, the upper limit
of occupied western yellow-billed
cuckoo habitat addressed by the HCP is
400 ac (162 ha) (SRP 2008, pp. 134–
135).
The 50-year Horseshoe Bartlett HCP
conservation strategy focuses primarily
on the protection and management of
southwestern willow flycatcher and
western yellow-billed cuckoo habitat
within the Horseshoe Lake conservation
space through modified dam operations;
acquisition and management of habitat
outside of Horseshoe Lake; and the
implementation of measures to conserve
Verde River water. SRP will modify dam
operations to make western yellowbilled cuckoo habitat available earlier in
the nesting season and to maintain
riparian vegetation at higher elevations
within the conservation space whenever
possible. SRP acquired a 150 ac (61 ha)
and a 55 ac (22 ha) parcel along the
upper Gila River near Fort Thomas (SRP
2019a, p. 14). SRP’s water supply
protection program will focus on special
projects to specifically benefit
mitigation habitat such as ground water
testing and modeling in the vicinity of
mitigation lands, development and
support of instream flow water rights,
and research on the relationship
between hydrology, habitat, and covered
species under the HCP.
Ongoing maintenance on mitigation
properties include year-round perimeter
fence patrolling and repair; and
removing nonnative plants, kochia
(Kochia scoparia) and Russian thistle
(Salsola tragus); pruning salt cedar
limbs from fence lines and roads; and,
patrolling and management of trespass
cattle (SRP 2019a, pp. 15–16). SRP is
engaged in substantial and ongoing
watershed management efforts to
maintain and improve stream flows,
which benefit all main-stem species.
These watershed protection efforts
include 25 different actions in 2018
(SRP 2019a, pp. 16–24). SRP is actively
protecting in-stream flow through
administrative and legal efforts, public
outreach and education, funding
research and monitoring, and protection
of future water supplies for mitigation
lands.
The issuance of the Horseshoe Bartlett
HCP permit was based upon the
persistence of varying degrees of
occupied nesting southwestern willow
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flycatcher habitat within the Horseshoe
Lake conservation space (under full
operation of Horseshoe and Bartlett
Dams) that, along with other areas could
reach breeding and habitat-related goals
established in the 2002 Southwestern
Willow Flycatcher Recovery Plan.
Although a recovery plan has not been
developed for western yellow-billed
cuckoo, the persistence of habitat within
the Horseshoe Lake conservation space
and other areas upstream and
downstream on the Verde River have
benefited breeding western yellowbilled cuckoos.
Benefits of Inclusion—Horseshoe and
Bartlett Dams HCP
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
The Horseshoe Lake area is occupied
by western yellow-billed cuckoos and,
although western yellow-billed cuckoos
were not listed at the time the section
7 consultation for southwestern willow
flycatchers was conducted, effects to
western yellow-billed cuckoos were
evaluated as part of the HCP permitting
process. There may be some minor
benefits by the designation of critical
habitat within Horseshoe Lake,
primarily because of the additional
review required by USFS management
of the area. Not only does the USFS
manage recreation, access, land use, and
wildfire suppression and management
activities, USFS also ensures that there
is no cattle grazing, or road and camping
developments; recreation activities at
the lake are mostly focused on fishing.
These USFS management actions have
resulted in conservation of western
yellow-billed cuckoo habitat since the
listing of the southwestern willow
flycatcher in 1995 within the
conservation space of Horseshoe Lake.
Additionally, because the purpose of the
conservation space of Horseshoe Lake is
to store water, it prevents significant
land and water altering actions, such as
the development of permanent
structures within this open space area.
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As a result, because of the conservation
associated with implementing the HCP,
western yellow-billed cuckoo breeding
areas occurring within the Horseshoe
Lake conservation space, and
supporting USFS management, we have
determined that these incremental
benefits of a critical habitat designation
are minimized. Formal consultations
will likely result in only discretionary
conservation recommendations due to
existing appropriate management;
therefore we have determined that there
is a low probability of mandatory
elements (i.e., reasonable and prudent
alternatives) arising from formal section
7 consultations evaluating western
yellow-billed cuckoo critical habitat at
Horseshoe Lake.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners, agencies,
tribes, and the public regarding the
potential conservation value of an area,
and may help focus conservation efforts
on areas of high conservation value for
certain species. Any information about
the western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation
activities, is valuable. The designation
of critical habitat may also affect the
implementation of Federal laws, such as
the Clean Water Act. These laws analyze
the potential for projects to significantly
affect the environment. Critical habitat
may signal the presence of sensitive
habitat that could otherwise be missed
in the review process for these other
environmental laws.
We have determined that there would
be little additional educational and
informational benefit gained from
including Horseshoe Lake within the
designation, because this area is well
known as an important area for western
yellow-billed cuckoo management and
recovery. For example, the Horseshoe
Bartlett HCP was developed over
multiple years and was completed in
2008; and the Horseshoe Lake area was
proposed as southwestern willow
flycatcher critical habitat in 2004 and
excluded in 2005, and proposed as
western yellow-billed cuckoo habitat in
2014 and 2020. Additionally, since the
early 2000s, Horseshoe Lake
southwestern willow flycatchers and
western yellow-billed cuckoos have
been discussed by management agencies
while meeting to discuss management
issues occurring in the area for two
species (western yellow-billed cuckoos
as a candidate species). Consequently,
we have determined that the
informational benefits have already
occurred through past actions even
though this area is not designated as
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critical habitat. The importance of
Horseshoe Lake for conservation of the
western yellow-billed cuckoo, its
importance to the Verde River, and to
the population of western yellow-billed
cuckoos in the State of Arizona has
already been realized by managing
agencies, including the public, State and
local governments, and Federal
agencies.
Benefits of Exclusion—Horseshoe and
Bartlett Dams HCP
The benefits of excluding the area
within the high-water mark (below an
elevation of 2,026 ft (618 m) of
Horseshoe Lake from being designated
as critical habitat are considerable, and
include the conservation measures
described above and those associated
with implementing conservation
through enhancing and developing
partnerships.
The Horseshoe Bartlett HCP has and
will continue to help generate important
status and trend information and
conservation toward western yellowbilled cuckoo recovery. SRP will
continue to modify dam operations to
make western yellow-billed cuckoo
habitat available earlier in the nesting
season, manage 200 ac (81 ac) of habitat
for the western yellow-billed cuckoo,
and implement water protection
programs on the Verde River. In
addition to those specific western
yellow-billed cuckoo conservation
actions, the development and
implementation of this HCP provides
regular monitoring of western yellowbilled cuckoo habitat, distribution, and
abundance over the 50-year permit at
Horseshoe Lake. SRP is currently
implementing innovative monitoring of
riparian habitat abundance and western
yellow-billed cuckoo habitat suitability
through satellite image-based models
(Hatten and Paradzick 2003, entire; SRP
2012a, pp. 13–14).
Because of the importance of the
Horseshoe Lake conservation space for
water storage, there is no expectation
that any considerable development or
changes to the landscape would result
in reducing the overall water storage
space, and therefore the overall ability
to develop riparian vegetation.
Horseshoe Dam operates in a way that
continues moves water out of the
reservoir downstream to Bartlett Lake
and canals in order to continuously
create water storage conservation space,
and therefore area for western yellowbilled cuckoo habitat to be maintained.
Constant lake levels, which are not the
operational condition at Horseshoe Lake
for water storage, will not create or
maintain abundant western yellowbilled cuckoo habitat. On the contrary,
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dynamic lake levels that mimic the
function of flooding on river systems are
essential for creating habitat conditions
needed by nesting western yellow-billed
cuckoos within Horseshoe Lake.
Not excluding the areas within
Horseshoe Bartlett HCP could be a
disincentive for other entities
contemplating partnerships, as it would
be perceived as a way for the Service to
impose additional regulatory burdens
once conservation strategies have
already been agreed to. Private entities
are motivated to work with the Service
collaboratively to develop voluntary
HCPs because of the regulatory certainty
provided by an incidental take permit
under section 10(a)(1)(B) of the Act with
the ‘‘No Surprises’’ assurances. This
collaboration often provides greater
conservation benefits than could be
achieved through strictly regulatory
approaches, such as critical habitat
designation. The conservation benefits
resulting from this collaborative
approach are built upon a foundation of
mutual trust and understanding. It takes
considerable time and effort to establish
this foundation of mutual trust and
understanding. Excluding this area from
critical habitat would help promote and
honor that trust by providing greater
certainty for permittees that once
appropriate conservation measures have
been agreed to and consulted on for the
western yellow-billed cuckoo that
additional consultation will not be
necessary. Working together with SRP
and Reclamation, USFS management
has continued to foster the maintenance
and development of western yellowbilled cuckoo habitat through land
management actions that protect habitat
and reduce habitat stressors. The
majority of USFS standards and
guidelines in the Tonto National
Forest’s Land Management Resource
Plan would benefit the western yellowbilled cuckoo.
Through the development of the
Horseshoe Bartlett HCP, we have
generated additional partnerships with
SRP and its stakeholders by developing
collaborative conservation strategies for
the western yellow-billed cuckoo and
the habitat upon which it depends for
breeding, sheltering, foraging, migrating,
and dispersing. The strategies within
the HCP seek to achieve conservation
goals for the western yellow-billed
cuckoo and its habitat, and thus can be
of greater conservation benefit than the
designation of critical habitat, which
does not require specific actions.
Continued cooperative relations with
SRP and its stakeholders is expected to
influence other future partners and lead
to greater conservation than would be
achieved through multiple site-by-site,
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project-by-project, section 7
consultations. For example, soon after
completing the Roosevelt HCP, we
partnered with SRP and its stakeholders
to develop the Horseshoe and Bartlett
Dam HCP where the western yellowbilled cuckoo conservation was a key
component. The benefits of excluding
lands within the Horseshoe and Bartlett
Dam HCP area from critical habitat
designation include recognizing the
value of conservation benefits
associated with HCP actions;
encouraging actions that benefit
multiple species; encouraging local
participation in development of new
HCPs; and facilitating the cooperative
activities provided by the Service to
landowners, communities, and counties
in return for their voluntary adoption of
the HCP. Concerns over perceived
added regulation potentially imposed by
critical habitat could harm this
collaborative relationship.
Another benefit of excluding
Horseshoe Bartlett HCP area from
critical habitat includes a small
reduction in administrative costs for
Federal agencies associated with
engaging in activities within the critical
habitat portion of section 7
consultations. Administrative costs
include time spent in meetings,
preparing letters and biological
assessments, and in the case of formal
consultations, the development of the
critical habitat component of a
biological opinion. However, because
the western yellow-billed cuckoo occurs
at Horseshoe Lake during the breeding
season, consultations evaluating
jeopardy to the western yellow-billed
cuckoo would be expected to occur
regardless of a critical habitat
designation, and those costs to perform
the additional analysis are not expected
to be significant.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Horseshoe
Bartlett Dams HCP
We have determined that the benefits
of exclusion of the conservation space of
Horseshoe Bartlett HCP below 2,026 ft
(618 m) of Horseshoe Lake from the
designation of western yellow-billed
cuckoo critical habitat on Federal lands
surrounding the lake managed by the
USFS, as identified in the Horseshoe
Bartlett HCP, outweigh the benefits of
inclusion as critical habitat. In our
determination, we considered and
found that the HCP meets our criteria
for exclusion for HCPs (see Private or
Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of
the Act) and whether the current dam
operations, management, and
conservation efforts protect, maintain
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and conserve western yellow-billed
cuckoo habitat.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo at Horseshoe Lake are relatively
low in comparison to the benefits of
exclusion. We find that including
Horseshoe Lake would result in very
minimal, if any additional benefits to
the western yellow-billed cuckoo,
because Horseshoe Dam operations will
continue to foster the maintenance,
development, and necessary recycling of
habitat for the western yellow-billed
cuckoo in the long-term due to the
dynamic nature of water storage and
delivery. USFS management fosters the
presence of western yellow-billed
cuckoo habitat, and there is virtually no
risk of changes to the landscape within
the Horseshoe Lake conservation space,
based on the track record of successful
habitat maintenance for western yellowbilled cuckoos and southwestern willow
flycatchers.
The benefits of excluding Horseshoe
Lake from inclusion as critical habitat
are considerable and varied. Excluding
Horseshoe Lake will strengthen our
partnership with Horseshoe Bartlett
HCP permittees and stakeholders and
potentially help foster development of
future HCPs. Excluding Horseshoe Lake
also eliminates regulatory uncertainty
associated with the permittees HCP and
the operation of Horseshoe and Bartlett
Dams for water storage and flood
control. The conservation measures
being implemented by the Horseshoe
and Bartlett Dam HCP are considerable
and include acquisition and
management of western yellow-billed
cuckoo habitat, modifications of
Horseshoe Dam operations to facilitate
the persistence of western yellow-billed
cuckoo habitat, and long-term
monitoring of western yellow-billed
cuckoo habitat and territories. These
conservation measures will result in
greater western yellow-billed cuckoo
conservation benefits than what could
be accomplished from a project-byproject evaluation through the
incremental benefits of a critical habitat
designation. Excluding Horseshoe Lake
will also eliminate some additional
administrative effort and cost during the
consultation process pursuant to section
7 of the Act.
After weighing the benefits of
including Horseshoe Lake as western
yellow-billed cuckoo critical habitat
against the benefit of exclusion, we have
concluded that the benefits of excluding
the conservation space of Horseshoe
Lake below an elevation 2,026 ft. (618
m), underneath the coverage of the
Horseshoe Bartlett HCP and with the
support of USFS management, outweigh
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those that would result from designating
this area as critical habitat.
As mentioned below in our evaluation
of SRP’s Roosevelt HCP, SRP requested
that their western yellow-billed cuckoo
mitigation property along the upper Gila
River purchased as part of the measures
to implement the Horseshoe Bartlett
Dams HCP be designated as critical
habitat. The mitigation property is not
located within the Horseshoe lakebed,
and may benefit from section 7
consultation. Therefore, based upon the
comments received from SRP and the
likely benefit of future section 7
consultation, we have honored the
landowners request not to exclude the
mitigation properties acquired by SRP
along the Gila River from the final
designation as critical habitat for the
western yellow-billed cuckoo.
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Exclusion Will Not Result in Extinction
of the Species—Horseshoe and Bartlett
Dams HCP
We find that the exclusion of the
conservation space of Horseshoe Lake
will not lead to the extinction of the
western yellow-billed cuckoo, nor
hinder its recovery because Horseshoe
and Bartlett Dam operations combined
with the preservation of open space
within the lake and USFS land
management will ensure the long-term
persistence and protection of western
yellow-billed cuckoo habitat at
Horseshoe Lake. In addition, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. We
determined in our intra-Service section
7 biological opinion for the issuance of
the Horseshoe and Bartlett Dams HCP
permit that operations would not result
in jeopardy. We also determined that
while Horseshoe Dam operations will
cause incidental take of western yellowbilled cuckoos and cause fluctuations in
habitat abundance and quality, reservoir
operations will also create a dynamic
environment that fosters the long-term
persistence of habitat. It was estimated
that during the life of the permit, the
annual average of southwestern willow
flycatcher and western yellow-billed
cuckoo habitat estimated to occur
within the lake is 260 ac (105 ha) (SRP
2008, p. 120). In total, the upper limit
of occupied western yellow-billed
cuckoo habitat at Horseshoe and Bartlett
addressed by the HCP is 400 ac (162 ha),
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but could vary annually (SRP 2008, pp.
134–135).
Accordingly, we have determined that
the critical habitat within the Salt River
Project Horseshoe Bartlett HCP planning
area should be excluded from the final
designation because the benefits of
exclusion outweigh the benefits of
inclusion and will not cause the
extinction of the species. Therefore, we
are excluding approximately 397 ac (161
ha) of critical habitat from Unit 11: AZ–
9A (76 ac (31 ha)) and AZ–9B (321 ac
(130 ha) from the final critical habitat
designation.
Unit 12 (AZ–10) Tonto Creek and Unit
23 (AZ–21) Salt River—Salt River
Project Roosevelt Lake HCP
In the revised proposed rule we
identified 3,155 ac (1,277 ha) for
exclusion from Unit 12 (AZ–10, Tonto
Creek) and 2,469 ac (1,000 ha) from Unit
23 (AZ–21, Salt River) from the final
designation based on the Salt River
Project (SRP) Roosevelt Dam HCP. SRP
obtained a permit under section
10(a)(1)(B) of the Act in 2003, for the
Roosevelt Dam HCP for the operation of
Roosevelt Dam in Gila and Maricopa
Counties, Arizona. Roosevelt Dam was
constructed by Reclamation and turned
over to SRP for operation and
management. The permit authorizes
incidental take of the federally listed
southwestern willow flycatcher caused
by the raising and lowering of the water
stored by Roosevelt Dam for a period of
50 years. The then-candidate yellowbilled cuckoo was also covered by the
HCP in anticipation of Federal listing.
Critical habitat for this unit is a 12-mi
(19-km)-long continuous segment of
Tonto Creek ending at the 2,151-foot
elevation line, which represents the
lakebed of Theodore Roosevelt Lake.
The extent of the full conservation
storage pool at Roosevelt Lake extends
to the 2,151-ft (656 m) high elevation
line and represents the area covered by
the Roosevelt Dam HCP. The land
within the Roosevelt Lake perimeter is
Federal land owned and managed by the
USFS (Tonto National Forest).
The Roosevelt Lake western yellowbilled cuckoo population fluctuates
depending on the habitat conditions at
the lake edge and inflows. During lower
water years, flat gradient floodplains
expose broad areas where riparian
vegetation can grow at both the Salt
River and Tonto Creek inflows. The
areas at each end of the lake are
estimated to be able to establish as
much as 1,250 ac (506 ha) of habitat for
the western yellow-billed cuckoo below
the high water mark. The cycles of
germination, growth, maintenance, and
loss of western yellow-billed cuckoo
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habitat within the perimeter of
Roosevelt Lake are dependent on how
and when the lake recedes due to the
amount of water in-flow, and
subsequent storage capacity and
delivery needs caused by Roosevelt Dam
operations. The process of western
yellow-billed cuckoo habitat inundation
and drying through raising and lowering
of lake levels can be more exaggerated
than the dynamic flooding that occurs
on free-flowing streams, yet those
dynamic processes within the lake’s
high water mark mimic those that occur
on a river and are important to develop
and maintain western yellow-billed
cuckoos and their habitat. Even in highwater years, some high quality riparian
habitat would persist at Roosevelt Lake
providing western yellow-billed cuckoo
nesting opportunities.
The Roosevelt Dam HCP conservation
strategy for western yellow-billed
cuckoo focuses primarily on: (1) The
acquisition and management of western
yellow-billed cuckoo habitat outside of
Roosevelt Lake; (2) the protection of
existing habitat within the Roosevelt
Lake conservation space; and (3) the
creation of riparian habitat adjacent to
Roosevelt Lake. Western yellow-billed
cuckoo habitat is to be created and
maintained at Roosevelt Lake (outside of
the impacts of water storage) at the
adjacent Rock House Demonstration
Area. Also, because the USFS has
management authority over dry land
within the lakebed, SRP would fund a
USFS Forest Protection Officer to patrol
and improve protection of western
yellow-billed cuckoo habitat in the
Roosevelt lakebed from adverse
activities such as fire ignition from
human neglect, improper vehicle use,
and other unauthorized actions that
could harm habitat. These measures
fulfill the criteria for consideration of
exclusion of areas covered by the
Roosevelt Dam HCP (see Private or
Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of
the Act).
Because the mitigation measures for
the already federally listed
southwestern willow flycatcher were
intended to support the then-candidate
western yellow-billed cuckoos as well,
suitable habitat that fulfilled the needs
of both species were included in the
selection of mitigation sites in the HCP
(SRP 2002, p. 132). As part of
implementing the HCP, western yellowbilled cuckoo properties have been
acquired along the lower San Pedro and
Gila River (Middle Gila/San Pedro
Management Unit) and along the Verde
River (SRP 2012b, pp. 17–20). SRP has
acquired 1,842 ac (745 ha) of riparian
habitat and additional buffer lands and
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water rights. They have also developed
20 ac (8 ha) of western yellow-billed
cuckoo habitat at Rockhouse
Demonstration Site (not proposed as
critical habitat) and funded the USFS
employee to help on-the-ground
management for Roosevelt Lake and
western yellow-billed cuckoo (SRP
2012b, pp. 13–20). SRP has collected
and evaluated information on occupied
habitats and population status of
western yellow-billed cuckoos at
Roosevelt Lake and mitigation
properties.
In response to the 2014 proposed and
the 2020 revised proposed critical
habitat rule, SRP requested that
Roosevelt Lake, including the Tonto and
Salt rivers inflows be excluded from
final critical habitat designation, but
that mitigation properties be designated
as critical habitat.
Benefits of Inclusion—Roosevelt Lake
HCP
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
The Roosevelt Lake area is known to
be occupied by western yellow-billed
cuckoos and has undergone section 7
consultation under the jeopardy
standard related to the Roosevelt Lake
HCP and USFS actions. There may be
some minor benefits from the
designation of critical habitat within
Roosevelt Lake, primarily because it
would require the Service and USFS to
perform additional review of USFS
management within the exposed portion
of the lake bottom through a critical
habitat consultation under section 7 of
the Act. These USFS management
actions are typically limited to
recreation management and resource
use because the Salt River Project
operates conservation space of
Roosevelt Lake to store water. USFS has
appropriately managed recreation,
access, land use, and wildfire in a
manner that has conserved both
southwestern willow flycatcher and
western yellow-billed cuckoo habitat
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since the permit was issued, as
demonstrated by the continued
persistence of both species in habitat
surrounding Roosevelt Lake. For these
reasons and because formal
consultations will likely result in only
discretionary conservation
recommendations due to existing
appropriate management, we have
determined that there is a low
probability of mandatory elements (i.e.,
reasonable and prudent alternatives)
arising from formal section 7
consultations that include consideration
of designated critical habitat for the
western yellow-billed cuckoo at
Roosevelt Lake.
We have evaluated Roosevelt Lake
Dam operations through
implementation of the Roosevelt HCP,
and considered impacts to western
yellow-billed cuckoos and their habitat.
The conservation strategies in the
Roosevelt HCP included considerable
habitat acquisition to account for habitat
affected, with commitments for
management and monitoring. We
concluded that Roosevelt Dam
operations, while causing incidental
take of western yellow-billed cuckoos
periodically, will support the
development of additional habitat over
time. Because of the non-jeopardy
analysis completed in our section 7
consultation, the continued function of
Roosevelt Lake to establish western
yellow-billed cuckoo habitat for
recovery, and the comprehensive
conservation strategies implemented in
the HCP, we have determined that there
is a low probability of mandatory
elements (i.e., reasonable and prudent
alternatives) arising from formal section
7 consultations that include
consideration of Roosevelt Dam
operations on designated western
yellow-billed cuckoo critical habitat at
Roosevelt Lake.
Another important benefit of
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high conservation value for certain
species. Any information about the
western yellow-billed cuckoo that
reaches a wide audience, including
parties engaged in conservation
activities, is valuable. The designation
of critical habitat may also inform
implementation of some Federal laws
such as the Clean Water Act. These laws
analyze the potential for projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
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We have determined that there would
be little educational and informational
benefit gained from including Roosevelt
Lake within the designation because
this area is well known as an important
area for southwestern willow flycatcher
and western yellow-billed cuckoo
management and recovery. For example,
extensive southwestern willow
flycatcher research has occurred at
Roosevelt Lake through much of the late
1990s and early 2000s by USGS,
Reclamation, and AGFD; the Roosevelt
Dam HCP was developed in 2003;
periodic news articles were published
on the development of the Roosevelt
Dam HCP; and the Roosevelt Lake area
was proposed as southwestern willow
flycatcher critical habitat in 2004 and
excluded in 2005 and as western
yellow-billed cuckoo critical habitat in
2014. Additionally, since the mid1990s, SRP, USFS, Reclamation, AGFD,
and the Service have met annually to
discuss the status and ongoing
management of the southwestern willow
flycatcher and western yellow-billed
cuckoo in the Roosevelt Lake area.
Consequently, informational benefits
informing the public and partners about
the value of Roosevelt Lake for both
listed bird species will continue into the
future.
Benefits of Exclusion—Roosevelt Lake
HCP
The benefits of excluding the area
within the high-water mark of Roosevelt
Dam from being designated as critical
habitat are considerable, and include
the conservation measures described
above (land acquisition, management,
and habitat development) and those
associated with implementing
conservation through enhancing and
developing partnerships.
The implementation of the Roosevelt
HCP has and will continue to help
generate important status and trend
information, acquire additional
mitigation lands, and help on-theground management of Roosevelt Lake
western yellow-billed cuckoos and their
habitat (SRP 2012b, pp. 15–16). In
addition to these specific western
yellow-billed cuckoo conservation
actions, the development and
implementation of this HCP provides
regular monitoring of western yellowbilled cuckoo habitat, distribution, and
abundance over the 50-year permit.
Because of the importance of the
Roosevelt Lake conservation space for
water storage, there is no expectation
that any considerable development or
changes to the landscape would result
in reducing the overall water storage
space, and therefore the overall ability
to develop riparian vegetation.
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Roosevelt Dam operates in a way that
continues to move water out of the
reservoir to downstream lakes and
canals in order to continuously create
water storage conservation space at
Roosevelt Lake, and therefore area for
riparian vegetation and western yellowbilled cuckoo habitat to grow. The
dynamic lake levels, similar to river
systems, are important for the creation
and maintenance of abundant western
yellow-billed cuckoo habitat at this
location.
Roosevelt Dam operations,
implemented through the HCP permit
continue to sustain local populations of
western yellow-billed cuckoo by
sustaining suitable habitat for the
species. Western yellow-billed cuckoo
populations have persisted within the
high water mark at Roosevelt Lake
throughout increases and decreases in
water storage as well as along streams
adjacent to Roosevelt Lake (Salt River,
Tonto Creek, Pinal Creek, and Cherry
Creek). The expanding and contracting
western yellow-billed cuckoo habitat
within the lake combined with dynamic
habitat along adjacent streams support
the overall western yellow-billed
cuckoo population within the Roosevelt
Lake area.
Failure to exclude Roosevelt Lake
could be a disincentive for other entities
contemplating partnerships, as it would
be perceived as a way for the Service to
impose additional regulatory burdens
once conservation strategies have
already been agreed to through our
permitting process. Private entities are
motivated to work with the Service
collaboratively to develop voluntary
HCPs because of the regulatory certainty
provided by an incidental take permit
under section 10(a)(1)(B) of the Act with
the ‘‘No Surprises’’ assurances. This
collaboration often provides greater
conservation benefits than could be
achieved through strictly regulatory
approaches, such as critical habitat
designation. The conservation benefits
resulting from this collaborative
approach are built upon a foundation of
mutual trust and understanding.
Excluding this area from critical habitat
will help promote and honor that trust
by providing greater certainty for
permittees that once appropriate
conservation measures have been agreed
to and consulted on for the western
yellow-billed cuckoo that additional
consultation will not be necessary. SRP
has proven to be a valuable and
responsible partner to the Service in
leading, innovating, and implementing
large- and small- scale conservation
efforts in Arizona.
Through the development of the
Roosevelt Dam HCP, we have generated
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additional partnerships with SRP and
its stakeholders by developing
collaborative conservation strategies for
the western yellow-billed cuckoo and
the habitat upon which it depends for
breeding, sheltering, foraging, migrating,
and dispersing. The strategies within
the Roosevelt HCP seek to achieve
conservation goals for the western
yellow-billed cuckoo and its habitat,
and will achieve greater conservation
benefit than the designation of critical
habitat and multiple site-by-site,
project-by-project, section 7
consultations, which is unlikely to
require specific actions. Continued
cooperative relations with SRP and its
stakeholders are expected to influence
other future partners. The benefits of
excluding lands within the Roosevelt
Lake HCP area from critical habitat
designation include recognizing the
value of conservation benefits
associated with HCP actions;
encouraging actions that benefit
multiple species; encouraging local
participation in development of new
HCPs; and facilitating the cooperative
activities provided by the Service to
landowners, communities, and counties
in return for their voluntary adoption of
the HCP. Concerns over perceived
added regulation potentially imposed by
critical habitat could harm this
collaborative relationship.
Another benefit of excluding
Roosevelt Lake from critical habitat
includes a small reduction in
administrative costs associated with
engaging in the critical habitat portion
of section 7 consultations.
Administrative costs include time spent
in meetings, preparing letters and
biological assessments, and in the case
of formal consultations, the
development of the critical habitat
component of a biological opinion.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Roosevelt Lake
HCP
We have determined that the benefits
of exclusion of the conservation space of
Roosevelt Lake below 2,151 ft (655 m)
in elevation from the designation of
western yellow-billed cuckoo critical
habitat on Federal land managed by the
USFS, as identified in the Roosevelt
Dam HCP, outweigh the benefits of
inclusion because current dam
operations and management, and
implementation of conservation actions
maintain, protect, and conserve western
yellow-billed cuckoo habitat. In our
determination, we considered and
found that the HCP meets our criteria
for exclusion for HCPs (see Private or
Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of
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the Act). As a result, we weighed the
benefits of including these lands as
critical habitat with an operative HCP
and management by the USFS, and the
same situation without critical habitat.
The benefits of designating critical
habitat for the western yellow-billed
cuckoo at Roosevelt Lake are relatively
low in comparison to the benefits of
exclusion. We find that including
Roosevelt Lake as critical habitat would
result in very minimal, if any,
additional benefits to the western
yellow-billed cuckoo. Roosevelt Dam
operations will continue to foster the
maintenance, development, and
necessary recycling of habitat for the
western yellow-billed cuckoo in the
long term due to the dynamic nature of
water storage and delivery. USFS
management of lands surrounding the
lake ensures the maintenance and
development of western yellow-billed
cuckoo habitat per the HCP. As a result,
we anticipate that formal section 7
consultations conducted on critical
habitat would only likely result in
discretionary conservation
recommendations.
The benefits of excluding Roosevelt
Lake from inclusion as critical habitat
are considerable. Excluding Roosevelt
Lake would continue to help foster
development of future HCPs and
strengthen our partnership with
Roosevelt HCP permittees and
stakeholders. Excluding Roosevelt Lake
also eliminates regulatory uncertainty
associated with the permittees’ HCP and
the operation of Roosevelt Dam for
water storage and flood control. The
conservation benefits of implementing
the Roosevelt HCP are considerable and
include significant acquisition and
management of western yellow-billed
cuckoo habitat, creation of western
yellow-billed cuckoo habitat adjacent to
Roosevelt Lake, on-the-ground
protection of western yellow-billed
cuckoo habitat, and long-term
monitoring of western yellow-billed
cuckoo habitat and territories. These
conservation measures are substantial
and will result in greater western
yellow-billed cuckoo conservation
benefits than what could be
accomplished from a project-by-project
evaluation through the incremental
benefits of a critical habitat designation.
Also, excluding Roosevelt Lake will
eliminate some additional, but minimal,
administrative effort and cost during the
consultation process pursuant to section
7 of the Act.
After weighing the benefits of
including Roosevelt Lake as western
yellow-billed cuckoo critical habitat
against the benefit of exclusion, we have
concluded that the benefits of excluding
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the conservation space of Roosevelt
Lake below an elevation 2,151 ft (655
m), underneath the coverage of the
Roosevelt HCP and with the support of
USFS management, outweigh those that
would result from designating this area
as critical habitat.
As mentioned above, during
development of the western yellowbilled cuckoo critical habitat
designation, SRP requested that all of
their western yellow-billed cuckoo
mitigation properties purchased before
the publication of our final critical
habitat designation, be designated as
critical habitat. The mitigation
properties are not located within the
Roosevelt lakebed, and may benefit from
section 7 consultation on their
management. Therefore, based upon the
comments received from SRP and the
likely benefit of future section 7
consultation, the mitigation properties
acquired by SRP along the San Pedro,
Gila, and Verde Rivers are included in
this final designation as western yellowbilled cuckoo critical habitat.
Exclusion Will Not Result in Extinction
of the Species—Roosevelt Lake HCP
We find that the exclusion of the
conservation space of Roosevelt Lake
will not lead to the extinction of the
western yellow-billed cuckoo, nor
hinder its recovery because Roosevelt
Dam operations combined with the
preservation of open space within the
lake and USFS land management under
the HCP will ensure the long-term
persistence and protection of western
yellow-billed cuckoo habitat at
Roosevelt Lake. In addition, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. We
determined in our intra-Service section
7 biological opinion for the issuance of
the Roosevelt HCP permit that, while
Roosevelt Dam operations will cause
incidental take due to operations that
cause fluctuations in habitat abundance
and quality, reservoir operations also
create a dynamic environment that
fosters the long-term persistence of
habitat. It was estimated that during the
life of the permit, an average amount of
habitat to support 6 western yellowbilled cuckoo territories would be
present throughout the life of the 50year permit and even in a worst case
flood event with maximum water
storage, 22 territories could persist.
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USFS management has continued to
foster the maintenance and
development of western yellow-billed
cuckoo habitat through land
management actions that reduce threats
to the species habitat. We have therefore
excluded approximately 489 ac (198 ha)
from Unit 12 (AZ–10, Tonto Creek) and
2,009 ac (813 ha) from Unit 23 (AZ–21,
Salt River) from the final critical habitat
designation.
Tribal Lands
Several Executive Orders, Secretarial
Orders, and policies concern working
with Tribes. These guidance documents
generally confirm our trust
responsibilities to Tribes, recognize that
Tribes have sovereign authority to
control tribal lands, emphasize the
importance of developing partnerships
with tribal governments, and direct the
Service to consult with Tribes on a
government-to-government basis.
A joint Secretarial Order that applies
to both the Service and the National
Marine Fisheries Service (NMFS),
Secretarial Order 3206, American
Indian Tribal Rights, Federal–Tribal
Trust Responsibilities, and the
Endangered Species Act (June 5, 1997)
(S.O. 3206), is the most comprehensive
of the various guidance documents
related to tribal relationships and Act
implementation, and it provides the
most detail directly relevant to the
designation of critical habitat. In
addition to the general direction
discussed above, S.O. 3206 explicitly
recognizes the right of Tribes to
participate fully in the listing process,
including designation of critical habitat.
The Order also states: ‘‘Critical habitat
shall not be designated in such areas
unless it is determined essential to
conserve a listed species. In designating
critical habitat, the Services shall
evaluate and document the extent to
which the conservation needs of the
listed species can be achieved by
limiting the designation to other lands.’’
In light of this instruction, when we
undertake a discretionary section 4(b)(2)
exclusion analysis, we will always
consider exclusions of tribal lands
under section 4(b)(2) of the Act prior to
finalizing a designation of critical
habitat, and will give great weight to
tribal concerns in analyzing the benefits
of exclusion.
However, S.O. 3206 does not preclude
us from designating tribal lands or
waters as critical habitat, nor does it
state that tribal lands or waters cannot
meet the Act’s definition of ‘‘critical
habitat.’’ We are directed by the Act to
identify areas that meet the definition of
‘‘critical habitat’’ (i.e., areas occupied at
the time of listing that contain the
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essential physical or biological features
that may require special management or
protection and unoccupied areas that
are essential to the conservation of a
species), without regard to
landownership. While S.O. 3206
provides important direction, it
expressly states that it does not modify
the Secretaries’ statutory authority.
Unit 7 (AZ–5) Upper Verde River; Unit
9 (AZ–7) Beaver Creek; and Unit 10
(AZ–8) Lower Verde River and West
Clear Creek—Yavapai-Apache Nation
We identified 534 ac (216 ha) of
critical habitat that occurs on YavapaiApache Nation lands within portions of
the Verde River, Beaver Creek, and West
Clear Creek (Unit 7: AZ–5, Upper Verde
River; Unit 9: AZ–7, Beaver Creek; and
Unit 10: AZ–8, Lower Verde River and
West Clear Creek). The Yavapai-Apache
Nation completed a Southwestern
Willow Flycatcher Management Plan in
2005, and updated their plan in 2012
(Yavapai-Apache Nation 2012, entire).
The plan was originally developed for
the southwestern willow flycatcher but
has been revised to include western
yellow-billed cuckoo.
Prior to the incursion of non-Indians
into their territory, the Yavapai-Apache
Nation notes that their people lived and
prospered for many centuries along the
Verde River and its tributaries without
depleting the river system or harming its
riparian habitat and the many plant and
animal species it supports (Montgomery
& Interpreter, PLC 2020, p. 2). Today,
the Yavapai-Apache Nation Reservation
is only a small portion of lands
considered as historical YavapaiApache Nation lands and currently
totals a little over 1,800 ac (728 ha) in
Arizona. The Verde River and its
tributaries serve as a primary source of
the Nation’s water supply and is integral
in the preservation of the Nation’s
values. The Nation has implemented
strong conservation measures on the
Reservation to preserve the Verde River
for the benefit of all species and to
protect the practices of the Nation. The
Yavapai-Apache Nation is aware of the
threats facing the Verde River and
adjacent lands and their impacts on the
riparian habitat and food availability as
well as its suitability for western
yellow-billed cuckoo nesting, migrating,
food, cover, and shelter (Montgomery &
Interpreter, PLC 2020, p. 2).
The Nation continues to preserve
those portions of the Verde River,
Beaver Creek, and West Clear Creek
under its jurisdiction along with the
plants and animals associated with the
river. On June 15, 2006, the Nation
enacted Tribal Resolution No. 46–2006
formally designating a ‘‘Riparian
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Conservation Corridor’’ extending from
the center of the River outward for 300
lateral ft (91 lateral m) on either side of
the bank full stage of the Verde River
(Yavapai-Apache Nation 2006, entire;
Montgomery & Interpreter, 2020 PLC,
pp. 5–6). This resolution essentially
codified in Tribal law certain land use
restrictions and management goals for
the Verde River that had long been in
place on the Reservation. Within the
Riparian Conservation Corridor, those
activities that are harmful to the health
of the riparian area are discouraged or
prohibited outright in order to protect
the corridor’s natural habitat and the
animal and plant species that live,
breed, rest, and forage within the
corridor, including the western yellowbilled cuckoo.
The Nation has taken steps to protect
western yellow-billed cuckoo habitat
along the Verde River, Beaver Creek,
and West Clear Creek through zoning,
implementing tribal ordinances and
code requirements.
The purpose of the Nation’s
Flycatcher Management Plan as updated
to include western yellow-billed cuckoo
is to promote the physical and
biological features that will maintain
southwestern willow flycatcher and
western yellow-billed cuckoo habitat.
The strategy of the plan is not to allow
any net loss or permanent impacts to
western yellow-billed cuckoo habitat by
implementing measures from the
Service’s Southwestern Willow
Flycatcher Recovery Plan. Recreation
and access to riparian areas will be
managed to ensure no net loss of
habitat. Fire within riparian areas will
be suppressed and vegetation managed
by reducing fire risks. The Nation will
cooperate with the Service to monitor
and survey habitat for breeding and
migrating western yellow-billed
cuckoos, conduct research, and manage
habitat.
Since 2005, the Yavapai-Apache
Nation has concluded that through
implementation of their plan, there has
been no net loss of western yellowbilled cuckoo habitat. Since 2005, no
cattle grazing has occurred within the
Verde River corridor. If any future
grazing is permitted, it will be
conducted appropriately with fences,
and in a manner to protect western
yellow-billed cuckoo habitat quality.
The Nation has also installed
measurement devices to evaluate the
depth of the Verde River groundwater in
order to address river flows necessary to
maintain or improve the riparian habitat
quality (Montgomery & Interpreter 2020
PLC pp. 7–8). Also, no new access roads
or recreation sites have been created.
Similarly, any new housing areas have
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been directed to avoid construction
within the river corridor.
The Yavapai-Apache Nation has
conducted continued education,
information gathering, and partnering
and emphasized the importance of
protecting the Verde River within tribal
youth education programs. The
Yavapai-Apache Nation has also
continued to strengthen its partnership
with the Service by meeting and
coordinating efforts on the Service’s
goals for conservation on the Verde
River. The Nation has committed to
cooperatively discussing and examining
future projects with the Service that
could impact the western yellow-billed
cuckoo or its habitat.
Benefits of Inclusion—Yavapai-Apache
Nation Tribal Lands
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
We have conducted informal
consultations with agencies
implementing actions on tribal lands,
provided tribes technical assistance on
project implementation, and the Corps
has coordinated with tribes and pueblos
on projects within the area. However,
overall since listing of the southwestern
willow flycatcher as endangered in 1995
and the western yellow-billed cuckoo in
2014 as threatened, formal section 7
consultations have been rare on tribal
lands. Because of how tribes and
pueblos have chosen to manage and
conserve their lands and the lack of past
section 7 consultation history, we do
not anticipate a noticeable increase in
section 7 consultations in the future, nor
that such consultations would
significantly change the current
management of western yellow-billed
cuckoos or its habitat. Therefore, the
effect of a critical habitat designation on
these lands is minimized.
Were we to designate critical habitat
on these tribal lands, our section 7
consultation history indicates that there
may be some, but few, regulatory
benefits to the western yellow-billed
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cuckoo. As described above, even with
southwestern willow flycatchers and
western yellow-billed cuckoos occurring
on these tribal lands, the frequency of
formal section 7 consultations has been
rare. Projects initiated by Federal
agencies in the past were associated
with maintenance of rights-of-way or
water management such as those
initiated by Federal Highway
Administration or Reclamation. When
we review projects addressing the
western yellow-billed cuckoo pursuant
to section 7 of the Act in Arizona, we
commonly examine conservation
measures associated with the project for
consistency with strategies described
within the Southwestern Willow
Flycatcher Recovery Plan due to the two
species overlapping and using similar
habitat. Where there is consistency with
managing habitat and implementing
conservation measures recommended in
the recovery plan, it would be unlikely
that a consultation would result in a
determination of adverse modification
of critical habitat. Therefore, when the
threshold for adverse modification is
not reached, only additional
conservation recommendations could
result out of a section 7 consultation,
but such measures would be
discretionary on the part of the Federal
agency.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to inform and educate landowners
and the public regarding the potential
conservation value of an area, and it
may help focus management efforts on
areas of high value for certain species.
Any information about the western
yellow-billed cuckoo that reaches a
wide audience, including parties
engaged in conservation activities, is
valuable. However, the southwestern
willow flycatcher has been listed since
1995, and western yellow-billed cuckoo
has been a candidate species since 2001.
As a result the Yavapai-Apache Nation
has been and is currently working with
the Service to conserve southwestern
willow flycatcher and western yellowbilled cuckoo habitat, participate in
working groups, and exchange
management information. These
regulatory developments already ensure
that the Yavapai-Apache Nation and
others are fully aware of the importance
of listed riparian bird habitat and
conservation. Given that these
regulatory actions have already
informed the public about the value of
these areas and helped to focus
potential conservation actions, the
educational benefits from designating
critical habitat would be small.
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Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for southwestern
willow flycatcher and western yellowbilled cuckoo habitat-related projects.
However, areas where nesting,
migrating, dispersing, or foraging
western yellow-billed cuckoos occur, as
is the case here, may also provide
benefits when projects are evaluated for
receipt of funding.
Therefore, because of the
development and implementation of a
management plan, habitat conservation,
rare initiation of formal section 7
consultations, the occurrence of
breeding and migrant western yellowbilled cuckoos on tribal lands, and
overall coordination with tribes on
western yellow-billed cuckoo related
issues, it is expected that there may be
some, but limited, benefits from
including these tribal lands in a western
yellow-billed cuckoo critical habitat
designation. The principal benefit of
any designated critical habitat is that
activities in and affecting such habitat
require consultation under section 7 of
the Act. Such consultation would
ensure that adequate protection is
provided to avoid destruction or adverse
modification of critical habitat.
Benefits of Exclusion—Yavapai-Apache
Nation Tribal Lands
The benefits of excluding the
Yavapai-Apache Nation lands from
designated critical habitat include: (1)
Our deference to the Tribe to develop
and implement conservation and
natural resource management plans for
their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Tribe to
promote the conservation of the western
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yellow-billed cuckoo and its habitat;
and (3) the maintenance of effective
partnerships with the Tribe and working
in collaboration and cooperation to
promote additional conservation of the
western yellow-billed cuckoo and their
habitat.
During the development of the
western yellow-billed cuckoo critical
habitat proposal (and coordination for
other critical habitat proposals) and
other efforts such as implementing
measures identified in the Southwestern
Willow Flycatcher Recovery Plan
(applicable to western yellow-billed
cuckoos in central Arizona), we have
met and communicated with the
Yavapai-Apache Nation to discuss how
they might be affected by the regulations
associated with listing and designating
critical habitat for the western yellowbilled cuckoo. As such, we have
established a beneficial relationship to
support western yellow-billed cuckoo
conservation. As part of our
relationship, we have provided
technical assistance to the YavapaiApache Nation to develop measures to
conserve the western yellow-billed
cuckoo and their habitat on their lands.
These measures are contained within
the management plan developed by the
Yavapai-Apache Nation. We have
determined that the Yavapai-Apache
Nation should be the governmental
entity to manage and promote western
yellow-billed cuckoo conservation on
their lands. During our coordination
efforts with the Yavapai-Apache Nation,
we recognized and endorsed their
fundamental right to provide for tribal
resource management activities,
including those relating to riparian
habitat.
As stated above, the Yavapai-Apache
Nation has developed and implemented
a management plan specific to western
yellow-billed cuckoo and its habitat.
The Yavapai-Apache Nation has
expressed that their lands, and
specifically riparian habitat, are
connected to their cultural and religious
beliefs, and as a result they have a
strong commitment and reverence
toward its stewardship and conservation
and have common goals with the
Service on species and habitat
conservation. The management plan
identifies actions to maintain, improve,
and preserve riparian habitat. The
Yavapai-Apache Nation has also
implemented a review processes for
activities occurring in riparian zones
and restricted or limited certain actions
that would impact resources from
occurring or implement conservation
measures to minimize, or eliminate
adverse impacts. Overall, the
commitments toward management of
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western yellow-billed cuckoo habitat by
the Yavapai-Apache Nation likely
accomplish greater conservation than
would be available through the
implementation of a designation of
critical habitat on a project-by-project
basis.
The designation of critical habitat on
Yavapai-Apache Nation lands would be
expected to have an adverse impact on
our working relationship with the
Nation. The designation of critical
habitat would be viewed as an intrusion
and impact their sovereign abilities to
manage natural resources in accordance
with their own policies, customs, and
laws. These impacts include, but are not
limited to: (1) Interfering with the
sovereign and constitutional rights of
the Nation to protect and control its
own resources on the Reservation; (2)
undermining the positive and effective
government-to-government relationship
between the Nation and the Service—a
relationship that serves to protect
federally listed species and their habitat;
and (3) hampering or confusing the
Nation’s own long-standing protections
for the Verde River and its habitat. The
perceived restrictions of a critical
habitat designation could have a
damaging effect on coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the western yellow-billed cuckoo and
other species. For these reasons, we
have determined that our working
relationships with the Nation would be
better maintained if we excluded their
lands from the designation of western
yellow-billed cuckoo critical habitat. We
view this as a substantial benefit since
we have developed a cooperative
working relationship with the YavapaiApache Nation for the mutual benefit of
the western yellow-billed cuckoo and
other endangered and threatened
species.
In addition, we anticipate future
management plans to include additional
conservation efforts for other listed
species and their habitats may be
hampered if critical habitat is
designated on tribal lands being
managed for sensitive species
conservation. We have determined that
many other tribes and pueblos are
willing to work cooperatively with us
and others to benefit other listed and
sensitive species, but only if they view
the relationship as mutually beneficial.
Consequently, the development of
future voluntarily management actions
for other listed species may be
compromised if these tribal lands are
designated as critical habitat for the
western yellow-billed cuckoo. Thus, a
benefit of excluding these lands would
be future conservation efforts that
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would benefit other listed or sensitive
species.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Yavapai-Apache
Nation Tribal Lands
The benefits of including YavapaiApache Nation tribal lands in the
critical habitat designation are limited
to the incremental benefits gained
through the regulatory requirement to
consult under section 7 and
consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations, the benefits of
a critical habitat designation are
minimized. In addition, the benefits of
consultation are further minimized
because any conservation measures
which may have resulted from
consultation are already provided
through other mechanisms, such as (1)
the conservation benefits to the western
yellow-billed cuckoo and their habitat
from implementation of the YavapaiApache Nation management plans; and
(2) the maintenance of effective
collaboration and cooperation to
promote the conservation of the
southwestern willow flycatcher and
western yellow-billed cuckoo and their
habitat.
Because the Yavapai-Apache Nation
has developed a specific management
plan, has been involved with the critical
habitat designation process, and is
aware of the value of their lands for
western yellow-billed cuckoo
conservation, the educational benefits of
a western yellow-billed cuckoo critical
habitat designation are also minimized.
By allowing the Yavapai-Apache
Nation to implement its own resource
conservation programs it gives the
Nation the opportunity to manage their
natural resources to benefit riparian
habitat for the western yellow-billed
cuckoo, without the perception of
Federal Government intrusion. This
philosophy is also consistent with our
published policies on Native American
natural resource management. The
exclusion of these areas will likely also
provide additional benefits to the
western yellow-billed cuckoo and other
listed species that would not otherwise
be available without the Service’s
maintaining a cooperative working
relationships with the Yavapai-Apache
Nation. The actions taken by the Nation
to manage and protect habitat needed
for western yellow-billed cuckoo are
above those conservation measures
which may be required if the area was
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designated as critical habitat. As a
result, we have determined that the
benefits of excluding these tribal lands
from critical habitat designation
outweigh the benefits of including these
areas.
Exclusion Will Not Result in
Extinction—Yavapai-Apache Nation
Tribal Lands
We have determined that exclusion of
the Yavapai-Apache Nation tribal lands
from the critical habitat designation will
not result in the extinction of the
western yellow-billed cuckoo. We base
this determination on several points.
Firstly, as discussed above under Effects
of Critical Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Yavapai-Apache Nation has a long
term record of conserving species and
habitat and is committed to protecting
and managing southwestern willow
flycatcher and western yellow-billed
cuckoo habitat according to their
cultural history, management plans, and
natural resource management objectives.
We have determined that this
commitment accomplishes greater
conservation than would be available
through the implementation of a
designation of critical habitat on a
project-by-project basis. With the
implementation of these conservation
measures, based upon strategies
developed in the management plan, we
have concluded that this exclusion from
critical habitat will not result in the
extinction of the western yellow-billed
cuckoo. Accordingly, we have
determined that the benefits of
excluding the Yavapai-Apache Nation
tribal lands outweighs the benefits of
their inclusion, and the exclusion of
these lands from the designation will
not result in the extinction of the
species. As a result, we are excluding
Yavapai-Apache Nation tribal lands
within Unit 7 (AZ–5) Upper Verde River
(191 ac (77 ha)); Unit 9 (AZ–7) Beaver
Creek (3 ac (1 ha)); and Unit 10 (AZ–8)
Lower Verde River and West Clear
Creek (43 ac (17 ha)) from this final
designation.
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Unit 22 (AZ–20) Gila River 1; Unit 27
(AZ–25) Aravaipa Creek; Unit 28 (AZ–
26) Gila River 2; and Unit 17 (AZ–15)
Lower San Pedro and Gila Rivers—San
Carlos Apache and Gila River Indian
Community
We identified approximately 12,533
ac (5,646 ha) for the western yellowbilled cuckoo as critical habitat on San
Carlos Apache Tribe lands within Pinal,
Gila, and Graham Counties, Arizona in
Unit 22 (10,183 ac (4,121 ha)), Unit 28
(1,436 ac (581 ha)), and Unit 17 (729 ac
(295 ha)). As a results of comments and
coordinating with the Tribe, we
received additional land ownership
information that identified additional
lands owned by the San Carlos Apache.
The revised proposed designation
should have identified an additional
185 ac (75 ha) along the Lower San
Pedro River between Aravaipa Creek
and the Gila River confluence in Unit 17
totaling 914 ac (370 ha). However, due
additional revisions of the area
considered as critical habitat between
the revised proposed rule and this final
designation, we removed areas upstream
of Prophyry Gulch on the Gila River
from Unit 17. Therefore, the total area
of Tribal lands we are excluding in Unit
17 is approximately 445 ac (184 ha).
The San Carlos Reservoir and
surrounding land up to elevation 2,535
ft (773 m)) is Federal land owned by the
Bureau of Indian Affairs (BIA), which
owns and operates the reservoir and
Coolidge Dam site. The facilities are
operated for storage and delivery of
irrigation water as part of the Central
Arizona Water Project. The dam and
reservoir are surrounded by San Carlos
Apache tribal lands. In our revised
proposed rule, we misidentified the BIA
lands as San Carlos Apache tribal lands.
This ownership issue has been corrected
in this final rule.
Unit 22 (Gila River 1) and Unit 28
(Gila River 2) are located upstream of
San Carlos Reservoir on the Gila River
where it enter the reservoir and near
where Eagle Creek enters the river
respectively. Unit 17 (Lower San Pedro
and Gila River) is located downstream
of San Carlos Reservoir. Unit 27
(Aravaipa Creek) flows into the lower
San Pedro River. When at full capacity
the San Carlos Reservoir contains
867,400 ac-ft (1.07 cubic km) of water,
making it one of the largest lakes in
Arizona. However, due to water demand
and the seasonal, flashy nature of river
flows into the reservoir result in the lake
rarely fills and its water levels fluctuate
dramatically (LCR MSCP 2004, p. 12).
Total dry-up of the reservoir has been
recorded over 21 times with two of
those times occurring in the last five
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years (LCR MSCP 2004, p. 12;
Reclamation 2020b, p. 2). Chronic
drought since 1999 had also severely
reduced inflows and reduced stored
water available to downstream irrigators
(LCR MSCP 2004, p. 13). Despite these
extreme water fluctuations, normal
water management operations, similar
to what occurs at other reservoirs
managed for irrigation and other water
use, can periodically store and release
large amounts of water that can mimic
riverine flood flows within the lakebed,
spreading water over a large area and
stimulating the growth of vegetation
such as willow and cottonwood, and
helping to create and maintain western
yellow-billed cuckoo habitat. Coolidge
Dam and San Carlos Reservoir operation
plays a role in the overall development,
persistence, and recycling of western
yellow-billed cuckoo habitat (Service
2004, pp. 14–19). The San Carlos
Apache Water Rights Settlement Act of
1992, allows the San Carlos Apache
Tribe to exchange its Central Arizona
Project water allocation for irrigation
water releases from San Carlos
Reservoir, and grants the Tribe
permission to store exchanged water in
the reservoir to maintain a permanent
pool for fish, wildlife, and recreation
(LCR MSCP 2004, p. 5). Although
critical habitat is not being designated
on the Gila River Indian Community
(GRIC) lands, this Tribe is entitled to its
allocation of water per existing
agreements and exchanges and therefore
has an interest in San Carlos
management.
The San Carlos Apache Recreation
and Wildlife Department conduct
surveys for western yellow-billed
cuckoo, but population size and
territory information are the proprietary
information of the San Carlos Apache
Tribe. An unknown number of western
yellow-billed cuckoos occur upstream of
the San Carlos Reservoir on the Gila
River and on Eagle Creek within tribal
boundaries although the habitat appears
to be suitable. Western yellow-billed
cuckoos occur downstream and
upstream of the San Carlos Apache
Reservation on the Gila River. Recent
surveys in 2016 and 2019 confirm
presence of a breeding western yellowbilled cuckoos on the Gila River and in
Eagle Creek (Andreson 2016b, entire;
WestLand Resources, Inc. 2019, entire;
and Cornell Lab of Ornithology 2020
(eBird data)). The San Carlos Apache
parcels along lower Aravaipa Creek and
the lower San Pedro River between
Aravaipa Creek and the Gila River
confluence are within a riparian
corridor occupied by western yellowbilled cuckoos (Service 2013, pp. 349,
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387). These small parcels are likely
within the home range of foraging and
breeding western yellow-billed cuckoos.
The San Carlos Apache Tribe
Recreation and Wildlife Department
(SCATRWD) administers recreational
use permits for nontribal members on
San Carlos Apache tribal lands
including the San Carlos lake bottom
(SCATRWD 2009, entire). The
SCATRWD has identified specific
numbered areas or units of their land
where their various rules and
regulations apply. The SCATRWD
administers fishing licenses for San
Carlos Reservoir, but does not include
Federal land within the conservation
space of San Carlos Reservoir. Other
than a store and marina located closer
toward Coolidge Dam and adjacent to
the reservoir, no paved roads, developed
camping areas, or other designed
recreation centers ae located within the
San Carlos Reservoir conservation
space.
Benefits of Inclusion—San Carlos
Apache Tribe
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the costs or
outcomes of the jeopardy analysis and
the adverse modification analysis
represents the regulatory benefit of
critical habitat. A critical habitat
designation requires Federal agencies to
consult on whether their activity would
destroy or adversely modify critical
habitat to the point where recovery
could not be achieved.
The Gila River, Eagle Creek, and San
Carlos Apache parcels are known to be
occupied by western yellow-billed
cuckoos, and therefore, if a Federal
action or permitting occurs, there is a
nexus for evaluation under section 7 of
the Act. In addition, any water delivery
or operational activities associated with
Coolidge Dam by the BIA or
Reclamation would also be subject to
section 7 consultation for both the
listing and critical habitat. For example,
in 2003, Reclamation initiated
consultation under section 7 of the Act,
on a proposed water exchange between
the San Carlos Apache Tribe and the
Central Arizona Project. We completed
a biological opinion (Service 2004,
entire). The only consultation on Eagle
Creek (near Unit 28 (Gila River 2))
involved an upstream fish barrier and a
BLM grazing plan. However, our recent
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records show that no other formal
consultation on western yellow-billed
cuckoos has occurred for actions
associated with San Carlos Reservoir or
water operations. As described above,
even with western yellow-billed
cuckoos occurring throughout this
portion of the Gila River, the frequency
of formal section 7 consultations for
western yellow-billed cuckoo has been
rare. We do not anticipate a noticeable
increase in section 7 consultations in
the future, nor any significant change to
the current management of western
yellow-billed cuckoos or its habitat
resulting from consultations.
Another important benefit of
including lands in a critical habitat
designation is that it can serve to
educate landowners, agencies, tribes,
and the public regarding the potential
conservation value of an area, and may
help focus conservation efforts on areas
of high value for certain species. Any
information about the western yellowbilled cuckoo that reaches a wide
audience, including parties engaged in
conservation activities, is valuable.
However, the southwestern willow
flycatcher has been listed since 1995,
and western yellow-billed cuckoo has
been a candidate species since 2001.
These regulatory developments already
ensured that the San Carlos Apache
Tribe, GRIC, Reclamation, BIA, State of
Arizona and others are fully aware of
the importance of San Carlos Reservoir
to listed riparian bird habitat and
conservation due to their involvement
in the water transfer consultations. The
GRIC is made up of members of both the
Akimel O’odham (Pima) and the PeePosh (Maricopa) tribes. The Akimel
O’otham name for the yellow-billed
cuckoo is Kathgam. The Pee-Posh
general term for birds is ’chiyer. The
GRIC and the San Carlos Apache Tribe
have a long standing record for
conserving habitat for sensitive species.
Given that these regulatory actions have
already informed the public about the
value of these areas and helped to focus
potential conservation actions, the
educational benefits from designating
critical habitat would be small.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
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Benefits of Exclusion—San Carlos
Apache Tribe
The benefits of excluding the Gila
River Indian Community and the San
Carlos Apache Tribe lands from
designated critical habitat include: (1)
Our deference to the Tribe to develop
and implement conservation and
natural resource management plans for
their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Tribe to
promote the conservation of the western
yellow-billed cuckoo and its habitat;
and (3) the maintenance of effective
partnerships with the Tribe and working
in collaboration and cooperation to
promote additional conservation of the
western yellow-billed cuckoo and their
habitat.
The San Carlos Reservoir was
acquired by BIA for the purpose of
water storage for the Gila River Indian
Community and the San Carlos Apache
Tribe. Additionally, San Carlos
Reservoir has become an important part
of the San Carlos Apache Tribe society
because it generates income through its
recreational value, and nearby stores,
lodging, and gaming facilities, thereby
becoming a significant trust asset to
both Gila River Indian Community and
the San Carlos Apache Tribe. During the
development of the southwestern
willow flycatcher and western yellowbilled cuckoo critical habitat
designations and recovery
implementation, we have met and
communicated with the GRIC and San
Carlos Apache Tribe to discuss how
they might be affected and measures
they make take as a result of these
actions. As a result, the San Carlos
Apache Tribe submitted a Flycatcher
Management Plan that is compatible
with western yellow-billed cuckoo
management (San Carlos Apache Tribe
2005, entire). During our
communication with these tribes, we
recognized and endorsed their
fundamental right to provide for tribal
resource management activities,
including those relating to riparian
habitat. The designation of critical
habitat would be expected to have an
adverse impact on the working
relationship for conservation that we
have developed with the GRIC and the
San Carlos Apache Tribe. During our
discussions and in the comments we
received from the Tribes on the
proposed designation of critical habitat,
we were informed that critical habitat
would be viewed as an intrusion on
their sovereign abilities to manage
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natural resources in accordance with
their own policies, customs, and laws,
and in the case of GRIC, a potential
impact to their federally mandated
water deliveries. The perceived future
restrictions (whether realized or not) of
a critical habitat designation could have
a damaging effect to coordination
efforts, possibly preventing actions that
might maintain, improve, or restore
habitat for the western yellow-billed
cuckoo and other listed species. For
these reasons, we have determined that
our working relationships with these the
GRIC and San Carlos Apache Tribe
would be better maintained if the
critical habitat areas identified on tribal
lands on the Gila River, Eagle Creek,
lower San Pedro River and Federal
lands within the San Carlos Reservoir
owned by BIA and managed by the San
Carlos Apache Tribe are excluded from
the final designation. We view this as a
substantial benefit since we have
developed a cooperative working
relationship with these tribes for the
mutual benefit of western yellow-billed
cuckoo conservation and other
endangered and threatened species.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—San Carlos
Apache Tribe
The benefits of designating the areas
identified as critical habitat within the
Gila River, Eagle Creek, and Federal
lands at San Carlos Reservoir on the San
Carlos Apache Reservation; and the San
Carlos Apache parcels on lower San
Pedro River and Aravaipa Creek are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
as well as agency and educational
awareness, and implementation of other
laws and regulations. However, we have
determined that these benefits are
minimized because the species is listed
as threatened and there is a lack of
Federal actions occurring within the
tribal lands and conservation space of
San Carlos Reservoir; the operation of
Coolidge Dam that supports western
yellow-billed cuckoo habitat it
influences; and the limited discretion
BIA may have with Coolidge Dam
operations. Because of this overall
awareness by tribal, Federal, and State
entities, we have determined that there
is little educational benefit or support
for other environmental laws and
regulations attributable to western
yellow-billed cuckoo critical habitat
beyond those achieved from listing the
species under the Act.
The benefits of excluding these areas
from designation as critical habitat also
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include the importance of our
partnerships and working relationships
with the San Carlos Apache and Gila
River Indian Community, as well as our
responsibility to afford reasonable
protection of Native American trust
assets. While San Carlos Reservoir is
Federal land, the water resources it
supports are essential components to
both the San Carlos Apache Tribe and
Gila River Indian Community. These
tribes play an important partnership
role in managing their lands for western
yellow-billed cuckoo recovery. Without
their cooperation, land management,
and ability to share information,
achieving western yellow-billed cuckoo
conservation would be difficult on
Tribal lands. Our conservation
partnership with tribes also includes the
advancement and support of our Federal
Indian Trust obligations and the
maintenance of effective collaboration
and cooperation to promote the
conservation of the western yellowbilled cuckoo and its habitat. In
conclusion, we find that the benefits of
excluding the Gila River, Eagle Creek,
and San Carlos Reservoir Lakebed on
San Carlos Apache Reservation; and San
Carlos Apache parcels on lower San
Pedro River and Aravaipa Creek from
the final critical habitat designation
outweigh the benefits of including these
areas.
Exclusion Will Not Result in Extinction
of the Species—San Carlos Apache
Tribe
We have determined that exclusion of
critical habitat from the areas identified
on the Gila River, Eagle Creek, and San
Carlos Reservoir Lakebed on San Carlos
Apache Reservation and San Carlos
Apache parcels on lower San Pedro
River and Aravaipa Creek will not result
in the extinction of the western yellowbilled cuckoo. We base this
determination on several points. Firstly,
as discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction.
Secondly, the San Carlos Apache are
committed to protecting and managing
for the western yellow-billed cuckoo
and its habitat. We have determined that
this commitment accomplishes greater
conservation than would be available
through the implementation of a
designation of critical habitat on a
project-by-project basis. We have
determined that excluding these lands
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will not result in the extinction of the
western yellow-billed cuckoo and that
these lands should be excluded under
subsection 4(b)(2) of the Act because the
benefits of exclusion from critical
habitat for the western yellow-billed
cuckoo outweigh the benefits of their
inclusion. As a result, approximately
12,074 ac (4,886 ha) of San Carlos
Apache Tribal Lands in Unit 22 (AZ–20)
(10,183 ac (4,121 ha)); Unit 28 (AZ–26)
(1,436 ac (581 ha)); and Unit 17 (AZ–15)
(455 ac (184 ha)) on the Gila River, Eagle
Creek, and San Carlos Reservoir
Lakebed on San Carlos Apache
Reservation, and San Carlos Apache
parcels on lower San Pedro River and
Aravaipa Creek are excluded from the
final critical habitat designation.
Unit 65 (ID–1) Snake River 1—
Shoshone-Bannock Tribal Land
Management
The Shoshone-Bannock tribal lands
on the Fort Hall Reservation are located
in Bingham, Bannock, Caribou, and
Power Counties in Idaho, and
approximately 2,527 ac (1,023 ha) of
western yellow billed cuckoo critical
habitat with Unit 65 has been identified
on their lands. Riparian cottonwood
forest occurs on approximately 1
percent of the Fort Hall Reservation and
is primarily found along the Snake River
in (the area known as) the Fort Hall
bottoms. The Shoshone-Bannock Tribes
have a demonstrated track record of
maintaining these lands for natural
resources through implementation of
their Woodland Management Plan
(WMP) and draft Integrated Resource
Management Plan (IRMP).
The WMP was finalized in 2008 and
identifies management guidance for
specific forest types to maintain longterm sustainability of woodlands on the
Fort Hall Reservation. The plan
identifies actions that contribute to the
conservation of cottonwood forest
habitat important to western yellow
billed-cuckoos including reducing the
risk of wildfire, increasing cottonwood
regeneration, decreasing the spread of
nonnative plants, and maintaining and
improving riparian conditions. Specific
habitat improvements undertaken as the
result of the WMP include fencing
riparian areas to exclude them from
livestock grazing and completing
noxious and invasive weed treatments.
Additionally, the Shoshone-Bannock
Tribes are implementing the draft IRMP
which promotes an integrated review
process for project planning and
implementation across the tribe’s
resource departments. Although still in
draft form, the IRMP has been used
regularly with a great deal of success in
delivering conservation as part of
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project reviews. The review process
contains special consideration for any
project occurring within the habitat for
any special status or listed species and
appropriate mitigation of potential
impacts is developed by the ShoshoneBannock Tribes’ Fish and Wildlife
Department. Significant changes in
riparian cottonwood habitat conditions
on the Fort Hall Reservation have not
occurred over the past decade and
existing habitat conditions are not
expected to change, except for those
positive projected habitat programs the
Shoshone-Bannock Tribes are
undertaking, in the near or long term.
Benefits of Inclusion—Tribal Lands on
Fort Hall Reservation
Effects of Critical Habitat Designation
Section 7 Consultation, Federal
agencies, in consultation with the
Service, must ensure that their actions
are not likely to jeopardize the
continued existence of any listed
species or result in the destruction or
adverse modification of any designated
critical habitat of such species. The
difference in the outcomes of the
jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Our section 7 consultation history
within the Shoshone-Bannock Tribes
show that since listing in 2014, no
formal consultations have occurred for
actions conducted on tribal lands. We
have conducted an informal
consultation with Reclamation
implementing actions which affect tribal
lands; however, overall, since listing in
2014, section 7 consultations have been
rare on tribal lands. Because of how the
Shoshone-Bannock Tribes have chosen
to manage and conserve their lands and
the lack of past section 7 consultation
history, we do not anticipate that the
Shoshone-Bannock Tribes’ actions
would change considerably, generate a
noticeable increase in section 7
consultations, and that the consultations
would significantly change the current
management of western yellow-billed
cuckoos or their habitat.
Another important benefit of
including lands in a critical habitat
designation is that the designation can
serve to educate landowners and the
public regarding the potential
conservation value of an area, and it
may help focus management efforts on
areas of high value for certain species.
Any information about the western
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yellow-billed cuckoo that reaches a
wide audience, including parties
engaged in conservation activities, is
valuable. The Shoshone-Bannock Tribes
are currently working to survey western
yellow-billed cuckoo habitat, participate
in working groups, and exchange
management information. Because the
Shoshone-Bannock Tribes have
developed the WMP and are aware of
the value of their lands for western
yellow-billed cuckoo conservation, the
educational benefits of a western
yellow-billed cuckoo critical habitat
designation are minimized.
Another possible benefit of the
designation of critical habitat is that it
may inform implementation of Federal
laws such as the Clean Water Act (33
U.S.C. 1251–1376). These laws require
analysis of the potential for proposed
projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. The ShoshoneBannock Tribes have coordinated for
additional sources of funding in order to
conduct wildlife-related conservation
activities. Therefore, having an area
designated as critical habitat could
improve the chances of receiving
funding for western yellow-billed
cuckoo habitat-related projects.
However, areas where nesting,
migrating, dispersing, or foraging
western yellow-billed cuckoos occur, as
is the case here, may also provide
benefits when projects are evaluated for
receipt of funding.
Therefore, because of the
implementation of the WMP and IRMP
conservation, rare initiation of formal
section 7 consultations, the occurrence
of western yellow-billed cuckoo on the
Fort Hall Reservation, and overall
coordination with the ShoshoneBannock Tribes on western yellowbilled cuckoo-related issues, it is
expected that there may be some, but
limited, benefits from including Fort
Hall Reservation tribal lands in a
western yellow-billed cuckoo critical
habitat designation. The principal
benefit of any designated critical habitat
is that activities in and affecting such
habitat require consultation under
section 7 of the Act for adverse
modification. Such consultation would
still be required due to the species being
listed as threatened regardless of the
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designation due to the area being
occupied by the species. However, with
the Shoshone-Bannock Tribes
implementing measures that conserve
western yellow-billed cuckoo habitat
combined with the rarity of Federal
actions resulting in formal section 7
consultations, the benefits of a critical
habitat designation are minimized.
Benefits of Exclusion—Tribal Lands on
Fort Hall Reservation
The benefits of excluding ShoshoneBannock tribal lands on the Fort Hall
Reservation from designated critical
habitat include: (1) Our deference to the
Tribe to develop and implement
conservation and natural resource
management plans for their lands and
resources, which includes benefits to
the western yellow-billed cuckoo and its
habitat that might not otherwise occur;
(2) the continuance and strengthening of
our effective working relationships with
the Tribe to promote the conservation of
the western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Tribe
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
During the development of the
western yellow-billed cuckoo critical
habitat proposal and in exercise of our
trust responsibility to the Tribes, we
have met and communicated with the
Shoshone-Bannock Tribes to discuss
how they might be affected by the
regulations associated with western
yellow-billed cuckoo management,
recovery actions, and the designation of
critical habitat. As such, we established
relationships specific to western yellowbilled cuckoo conservation. As part of
our relationship, we have provided
technical assistance to the ShoshoneBannock Tribes to conserve the western
yellow billed cuckoo and its habitat on
their lands. The Shoshone-Bannock
Tribes included measures within the
WMP and IRMP that we have in our
supporting record for this decision. We
have determined that the ShoshoneBannock Tribes should be the
governmental entities to manage and
promote western yellow-billed cuckoo
conservation on their lands. During our
communication with the ShoshoneBannock Tribes, we recognized and
endorsed their fundamental right to
provide for tribal resource management
activities, including those relating to
riparian habitat.
The Shoshone-Bannock Tribes’ WMP
and IRMP address western yellow-billed
cuckoo habitat. The proposed critical
habitat segment we identified on lands
managed by the Shoshone-Bannock
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Tribes are where western yellow-billed
cuckoo have been recorded. The
Shoshone-Bannock Tribes have
expressed that their lands, and
specifically riparian habitat, are
connected to their cultural and religious
beliefs, and as a result they have a
strong commitment and reverence
toward its stewardship and
conservation. The WMP and IRMP
identify actions that contribute to the
conservation of cottonwood forest
habitat important to western yellow
billed-cuckoo including; reducing the
risk of wildfire, increasing cottonwood
regeneration, decreasing the spread of
nonnative plants, and maintaining and
improving riparian conditions. Specific
habitat improvements undertaken as the
result of the WMP include fencing
riparian areas to exclude them from
livestock grazing and completing
noxious and invasive weed treatments.
Through the IRMP the ShoshoneBannock Tribes also have project-byproject review processes in place that
allow evaluation and implementation of
conservation measures to minimize, or
eliminate adverse impacts. The
Shoshone-Bannock Tribes have natural
resource departments, which have
experienced biologists, conduct western
yellow-billed cuckoo surveys, and
maintain databases on the quality of
habitat throughout tribal lands and the
status and occurrence of western
yellow-billed cuckoo. Having this
information available to the ShoshoneBannock Tribes creates effective
conservation through any project review
process. The implementation of their
WMP and IRMP has been coordinated
and approved through appropriate tribal
processes, such as tribal councils.
Overall, these commitments toward
management of riparian habitat likely
accomplish greater conservation than
would be available through the
implementation of a designation of
critical habitat on a project-by-project
basis.
The designation of critical habitat on
the Shoshone-Bannock Tribes lands
would be expected to have an adverse
impact on our working relationship
with the Shoshone-Bannock Tribes. The
perceived restrictions of a critical
habitat designation could have a
damaging effect on coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the western yellow-billed cuckoo and
other species. For these reasons, we
have determined that our working
relationships with the ShoshoneBannock Tribes would be better
maintained if we excluded their lands
from the designation of western yellow-
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billed cuckoo critical habitat. We view
this as a substantial benefit since we
have developed a cooperative working
relationship with the ShoshoneBannock Tribes for the mutual benefit of
western yellow-billed cuckoo
conservation and other endangered and
threatened species.
We indicated in the proposed rule
that our final decision regarding the
exclusions of tribal lands under 4(b)(2)
of the Act would consider tribal
management and the recognition of their
capability to appropriately manage their
own resources, and the government-togovernment relationship of the United
States with tribal entities (85 FR 11458;
February 27, 2020 p. 11512). We also
acknowledged our responsibilities to
work directly with tribes in developing
programs for healthy ecosystems, that
tribal lands are not subject to the same
controls as Federal public lands, our
need to remain sensitive to Indian
culture, and to make information
available to tribes (85 FR 11458;
February 27, 2020 p. 11504).
We coordinated and communicated
with the Shoshone-Bannock Tribes
throughout the proposal of western
yellow-billed cuckoo critical habitat by
providing them information on
implementation of section 4(b)(2) of the
Act; guidance and review; related
documents, and public hearings; and
our interest in consulting with them on
a government-to-government basis at
their request. We also followed up our
correspondence with telephone calls
and electronic mail to assist with any
questions. During the comment period,
we received input from the ShoshoneBannock Tribes expressing the view that
designating western yellow-billed
cuckoo critical habitat on tribal land
would adversely affect the Service’s
working relationship with all tribes. We
conclude that our working relationships
with these tribes on a government-togovernment basis have been extremely
beneficial in implementing natural
resource programs of mutual interest,
and that these productive relationships
would be compromised by critical
habitat designation of these tribal lands.
We have determined that the
Shoshone-Bannock Tribes are willing to
work cooperatively with us and others
to benefit listed species, but only if they
view the relationship as mutually
beneficial. Consequently, the
development of future voluntarily
management actions for other listed
species may be compromised if these
tribal lands are designated as critical
habitat for the western yellow-billed
cuckoo. Thus, a benefit of excluding
these lands would be future
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conservation efforts that would benefit
other listed species.
Benefits of Exclusion Outweigh Benefits
of Inclusion—Tribal Lands on Fort Hall
Reservation
The benefits of including the
Shoshone-Bannock Tribes lands in the
critical habitat designation are limited
to the incremental benefits gained
through the regulatory requirement to
consult under section 7 and
consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other laws and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations, the benefits of
a critical habitat designation are
minimized. In addition, the benefits of
consultation are further minimized
because any conservation measures
which may have resulted from
consultation are already provided
through other mechanisms, such as (1)
the conservation benefits to the western
yellow-billed cuckoo and their habitat
from implementation of the
Reservation’s WMP and IRMP; and (2)
the maintenance of effective
collaboration and cooperation to
promote the conservation of the western
yellow-billed cuckoo and its habitat.
Because the Shoshone-Bannock
Tribes have developed specific
management plans, has been involved
with the critical habitat designation
process, and is aware of the value of
their lands for western yellow-billed
cuckoo conservation, the educational
benefits of a western yellow-billed
cuckoo critical habitat designation are
also minimized.
The benefits of excluding these areas
from being designated as western
yellow-billed cuckoo critical habitat are
more significant and include
encouraging the continued
implementation of Shoshone-Bannock
Tribes management and conservation
measures such as monitoring, survey,
habitat management and protection, and
fire-risk reduction activities that are
planned for the future or are currently
being implemented. These programs
will allow the Shoshone-Bannock Tribes
to manage their natural resources to
benefit riparian habitat for the western
yellow-billed cuckoo, without the
perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of these
areas will likely also provide additional
benefits to the western yellow-billed
cuckoo and other listed species that
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would not otherwise be available
without the Service’s maintaining a
cooperative working relationship with
the Shoshone-Bannock Tribes. The
actions taken by the Shoshone-Bannock
Tribes to manage and protect habitat
needed for western yellow-billed
cuckoo are above those conservation
measures which may be required if the
area was designated as critical habitat.
In conclusion, we find that the benefits
of excluding the Fort Hall Reservation
lands (Shoshone-Bannock Tribes) in
Idaho, from critical habitat designation
outweigh the benefits of including these
areas.
Exclusion Will Not Result in
Extinction—Tribal Lands on Fort Hall
Reservation
We have determined that exclusion of
the Shoshone-Bannock Tribal lands
from the final critical habitat
designation will not result in the
extinction of the western yellow-billed
cuckoo. We base this determination on
several points. Firstly, as discussed
above under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
absent the designation of critical habitat,
and thus will protect the species against
extinction. Secondly, the ShoshoneBannock Tribes have committed to
protecting and managing western
yellow-billed cuckoo habitat according
to their WMP and IRMP. We have
determined that this commitment
accomplishes greater conservation than
would be available through the
implementation of a designation of
critical habitat on a project-by-project
basis. With the implementation of these
plans, we have concluded that this
exclusion from critical habitat will not
result in the extinction of the western
yellow-billed cuckoo. Accordingly, we
have determined that 2,527 ac (1,023 ha)
of the Fort Hall Reservation tribal lands
are excluded under subsection 4(b)(2) of
the Act because the benefits of
excluding these lands from critical
habitat for the western yellow-billed
cuckoo outweigh the benefits of their
inclusion, and the exclusion of these
lands from the designation will not
result in the extinction of the species.
Unit 35 (NM–4) Upper Rio Grande 1—
Ohkay Owingeh, NM
Ohkay Owingeh is located just north
of Espanola in Rio Arriba County New
Mexico, and adjoins the lands of Santa
Clara Pueblo. The Pueblo includes the
southern or downstream end of the
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Velarde reach of the Rio Grande, and
comprises the largest contiguous area of
generally intact bosque, as well as the
largest riparian area under the control of
a single landowner, within the Velarde
reach. On Ohkay Owingeh, we are
excluding 1,313 ac (531 ha) of critical
habitat.
Dating back to 1993, upon observing
the presence of the southwestern willow
flycatcher, the Pueblo began restoring
the bosque habitat and associated
wetlands specifically for the
southwestern willow flycatcher. Habitat
within the Pueblo had been much
degraded relative to historical
conditions for two main reasons: (1)
River channelization that has caused
floodplain desiccation, cessation of
overbank flooding, and disruption of
geomorphological processes; and (2)
intensive invasion by nonnative trees,
primarily Russian olives. The increasing
frequency and severity of fires in the Rio
Grande bosque, accompanied by
changes in vegetation and the water
regime, underscores the urgency of the
restoration needs.
Ohkay Owingeh immediately began
restoration/conservation projects to
benefit the southwestern willow
flycatcher in 1994, with restoration/
conservation occurring over
approximately 4 ac (1.6 ha) of Ohkay
Owingeh lands. Since 1999, the Pueblo
has initiated or completed a variety of
restoration/conservation projects,
including further wetland creation and
expansion, southwestern willow
flycatcher habitat enhancement with
vegetation and open water, and removal
of non-native vegetation with
replacement of native vegetation. These
projects are funded through various
programs of the Environmental
Protection Agency, Wildland Urban
Interface/Collaborative Forest
Restoration Program, Middle Rio Grande
Endangered Species Act Collaborative
Program, Service Partners for Fish and
Wildlife Program, and the State of New
Mexico; they affect 744 riparian ac (301
riparian ha) on the Pueblo with direct
and indirect benefits to the
southwestern willow flycatcher. The
project implementations include
conservation, monitoring, and
management for the southwestern
willow flycatcher into the future. These
efforts contribute to the long term goals
of recovery for the southwestern willow
flycatcher. In addition to the habitat
work, the Pueblo supports southwestern
willow flycatcher surveys and nest
monitoring on the Pueblo lands. Though
past work has targeted southwestern
willow flycatchers, restoration efforts
also provide benefit to the western
yellow-billed cuckoos. It is because of
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their historical response to meet the
needs of listed species as provided in
the example above, that the Service
concludes that Ohkay Owingeh will
ensure conservation benefits to the
western yellow-billed cuckoo on their
lands. Ohkay Owingeh commented that
the western yellow-billed cuckoo will
be incorporated into their Riparian and
Bosque Habitat Restoration Management
Plan, as was done for other listed
species such as the New Mexico
meadow jumping mouse (Zapus
hudsonius luteus).
additional benefits beyond those that
will result from continued consultation
for the presence of the species.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Benefits of Inclusion—Ohkay Owingeh
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Since 1993, the section 7
consultations involving Ohkay Owingeh
for the southwestern willow flycatcher,
New Mexico meadow jumping mouse,
or western yellow-billed cuckoo have all
been informal (with the exception of
one formal consultation). Effects to the
southwestern willow flycatcher, New
Mexico meadow jumping mouse, and/or
western yellow-billed cuckoo from these
projects have been insignificant and
discountable because conservation
measures have focused on restoration
and management for the species and its
habitat.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, the Pueblo is
already working with the Service to
address the habitat needs of the species.
For these reasons, then, we have
determined that designation of critical
habitat would have few, if any,
Benefits of Exclusion—Ohkay Owingeh
The benefits of excluding the Pueblo
from designated critical habitat are
significant. We have determined that the
significant benefits that would be
realized by foregoing the designation of
critical habitat on this area include: (1)
Our deference to the Pueblo to develop
and implement conservation and
natural resource management plans for
their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Ohkay
Owingeh should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land as indicated
in Secretarial Order 3206; the
President’s memorandum of April 29,
1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951); Executive
Order 13175; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2).
We find that other conservation
benefits are provided to the Upper Rio
Grande Unit and the western yellowbilled cuckoo and its habitat by
excluding the Pueblo from the
designation. For example, as part of
maintaining a cooperative working
relationship with the Pueblo,
conservation benefits, including listed
species’ surveys, nest and/or habitat
monitoring, and/or habitat restoration
and enhancement have been possible.
Ohkay Owingeh submitted comments
on October 14, 2014, indicated that
critical habitat would be viewed as an
intrusion on their sovereign abilities to
manage natural resources in accordance
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20919
with their own policies, customs, and
laws. To this end, we found that the
Pueblo would prefer to work with us on
a Government-to-Government basis. For
these reasons, we have determined that
our working relationship with the
Pueblo would be maintained if they are
excluded from the designation of critical
habitat for the western yellow-billed
cuckoo. We view this as a substantial
benefit.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. As mentioned
above, the Pueblo is an important land
manager in the Upper Rio Grande Unit.
The consultation history, surveys, and
conservation, restoration and
management information historically
submitted by the Pueblo documents that
meaningful collaborative and
cooperative work for listed species and
their habitat will continue within their
lands. These commitments demonstrate
the willingness of the Pueblo to work
cooperatively with us toward
conservation efforts that will benefit the
western yellow-billed cuckoo. The
Pueblo has committed to several
ongoing or future management,
restoration, enhancement, and survey
activities that may not occur with
critical habitat designation. Therefore,
we have determined that the results of
these activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Pueblo lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans. If this
area is designated as critical habitat, we
have determined that it is unlikely that
sharing of information would occur.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Ohkay Owingeh
The long-term goal of riparian
management on Ohkay Owingeh is to
make significant additions of wetland
areas for listed species, as well as
implement innovative restoration
techniques, decrease fire hazards by
restoring native vegetation, share
information with other restoration
practitioners, use restoration projects in
the education of the tribal community
and surrounding community, and
provide a working and training
environment for the people of the
Pueblo.
Based on their traditional beliefs and
ties to the bosque area, the Pueblo
continues to protect, conserve, and
restore the riparian species and their
habitat. As is demonstrated through
their projects, the Pueblo has invested a
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significant amount of ongoing time and
effort to address the needs and recovery
of the southwestern willow flycatcher.
In addition, based on the long term
goals of restoring additional wetland
and native habitat, the Pueblo has
shown that it is managing its resources
to meet its traditional and cultural
needs, while addressing the needs of
listed species.
Because the Pueblo has a lengthy
history of managing and restoring
habitat for sensitive species, has been
involved with the critical habitat
designation process, and is aware of the
value of their lands for western yellowbilled cuckoo conservation, the
educational benefits of a western
yellow-billed cuckoo critical habitat
designation are also minimized.
In summary, the benefits of including
the Pueblo in critical habitat are low,
and are limited to insignificant
educational benefits. The benefits of
excluding these areas from designation
as critical habitat for the western
yellow-billed cuckoo are significant,
and include encouraging the continued
development and implementation of
special management measures such as
monitoring, surveys, enhancement, and
restoration activities that the Pueblo
plans for the future or is currently
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Upper Rio Grande Unit and the western
yellow-billed cuckoo, without the
perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
Exclusion Will Not Result in Extinction
of the Species—Ohkay Owingeh
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. Firstly, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Pueblo is committed to protecting
and managing Pueblo lands and species
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found on those lands according to their
tribal and cultural management plans
and natural resource management
objectives, which provide conservation
benefits for the western yellow-billed
cuckoo and its habitat. In short, the
Pueblo is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat.
Accordingly, we have determined that
the 1,313 ac (531 ha) of Ohkay Owingeh
lands be excluded from the final critical
habitat under subsection 4(b)(2) of the
Act because the benefits of exclusion
outweigh the benefits of inclusion and
will not cause the extinction of the
species.
Unit 36 (NM–5) Upper Rio Grande 2—
Santa Clara Pueblo, NM
On Santa Clara Pueblo, we proposed
141 ac (57 ac) of critical habitat within
this unit in Rio Arriba County, New
Mexico. The entire area is considered
occupied at the time of listing. The
Pueblo has joined with San Ildefonso
Pueblo and Ohkay Owingeh to work
with the Corps to complete large scale
environmental restoration and
floodplain management on their lands.
As a result, Santa Clara Pueblo is
already restoring all habitat proposed as
critical habitat for western yellow-billed
cuckoos with the exception of 4 ac (1.6
ha) which are agricultural lands. We
have a productive working relationship
with Santa Clara Pueblo and
coordinated with them during the
critical habitat designation process.
Benefits of Inclusion—Santa Clara
Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Another possible benefit is that the
designation of critical habitat can serve
to educate the landowner and public
regarding the potential conservation
value of an area, and this may focus and
contribute to conservation efforts by
other parties by clearly delineating areas
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of high conservation value for certain
species. Any information about the
western yellow-billed cuckoo and its
habitat that reaches a wide audience,
including other parties engaged in
conservation activities, would be
considered valuable.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or Pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—Santa Clara
Pueblo
The benefits of excluding the Pueblo
from designated critical habitat are
significant. The proposed critical habitat
designation included areas of riparian
woodland, or bosque, within the Pueblo
boundaries. We have determined that
the significant benefits that would be
realized by foregoing the designation of
critical habitat on this area include: (1)
Our deference to the Pueblo to develop
and implement conservation and
natural resource management plans for
their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Santa Clara
Pueblo should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land as indicated
in Secretarial Order 3206; Executive
Order 13175; and the relevant provision
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of the Departmental Manual of the
Department of the Interior (512 DM 2).
We find that other conservation
benefits are provided to the Upper Rio
Grande Unit and the western yellowbilled cuckoo and its habitat by
excluding the Pueblo from the
designation. For example, the objective
of Santa Clara Pueblo’s management of
their land is to protect, conserve, and
promote the well-being of listed species
and their associated habitats within the
Pueblo’s boundaries. As part of
maintaining a cooperative working
relationship with the Pueblo,
conservation benefits, including listed
species’ surveys, nest and/or habitat
monitoring, and/or habitat restoration
and enhancement have been possible. In
comments submitted by Santa Clara
Pueblo on October 13, 2014, we were
informed that critical habitat would be
viewed as unnecessary and offensive to
impose extra regulatory burdens upon
us when they are voluntarily and
proactively managing their lands to
provide benefit to the western yellowbilled cuckoo. The Pueblo would prefer
to work with us on a Government-toGovernment basis. For these reasons, we
have determined that our working
relationship with the Pueblo would be
maintained if they are excluded from
the designation of critical habitat for the
western yellow-billed cuckoo. We view
this as a substantial benefit.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. As mentioned
above, the Pueblo is an important land
manager in the Upper Rio Grande Unit.
The consultation conservation,
restoration and management
information historically submitted by
the Pueblo documents that meaningful
collaborative and cooperative work for
listed species and their habitat will
continue within their lands. These
commitments demonstrate the
willingness of the Pueblo to work
cooperatively with us toward
conservation efforts that will benefit the
western yellow-billed cuckoo. The
Pueblo has committed to several
ongoing or future management,
restoration, enhancement, and survey
activities that may not occur with
critical habitat designation. Therefore,
we have determined that the results of
these activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Pueblo lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans. If this
area is designated as critical habitat, we
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have determined that it is unlikely that
sharing of information would occur.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Santa Clara
Pueblo
The benefits of including Pueblo in
the critical habitat designation are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations, the benefits of
a critical habitat designation are
minimized. In addition, the Pueblo will
continue to protect its bosque habitat
and does not intend to develop the areas
used by western yellow-billed cuckoo as
critical habitat. Moreover, as part of
their history, the Santa Clara Pueblo has
conducted a variety of voluntary
measures, restoration projects, and
management actions to conserve
riparian vegetation, including protecting
riparian habitat from fire, maintaining
native vegetation, and preventing
habitat fragmentation. The Pueblo is
already working with the Service to
address the habitat needs of the species.
This working relationship will be better
maintained if Santa Clara Pueblo was
excluded from the designation. We view
this as a substantial benefit since we
have developed a cooperative working
relationship for the mutual benefit of
endangered and threatened species,
including the western yellow-billed
cuckoo. Because the Pueblo has
implemented habitat conservation and
restoration efforts, and is aware of the
value of their lands for western yellowbilled cuckoo conservation, the
educational benefits of a western
yellow-billed cuckoo critical habitat
designation are also minimized. For
these reasons, we have determined that
designation of critical habitat would
have few, if any, additional benefits
beyond those that will result from the
presence of the species.
In summary, the benefits of including
the Pueblo in critical habitat are low,
and are limited to insignificant
educational benefits. The benefits of
excluding these areas from designation
as critical habitat for the western
yellow-billed cuckoo are significant,
and include encouraging the continued
development and implementation of
special management measures such as
monitoring, surveys, enhancement, and
restoration activities that the Pueblo
plans for the future or is currently
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20921
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Upper Rio Grande Unit and the western
yellow-billed cuckoo, without the
perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
Exclusion Will Not Result in Extinction
of the Species—Santa Clara Pueblo
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. Firstly, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Pueblo is committed to protecting
and managing Pueblo lands and species
found on those lands according to their
tribal and cultural management plans
and natural resource management
objectives, which provide conservation
benefits for the western yellow-billed
cuckoo and its habitat. In short, the
Pueblo is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat.
Accordingly, we have determined that
the 141 ac (57 ha) of Santa Clara Pueblo
lands are excluded under subsection
4(b)(2) of the Act because the benefits of
exclusion outweigh the benefits of
inclusion and will not cause the
extinction of the species.
Unit 36 (NM–5) Upper Rio Grande 2—
San Ildefonso Pueblo, NM
San Ildefonso Pueblo, is located in
Rio Arriba County New Mexico, and
adjoins the lands of Santa Clara Pueblo.
On San Ildefonso Pueblo, we proposed
1,032 ac (418 ha) of critical habitat.
In 2011, an addendum to the Pueblo’s
2005 Integrated Resource Management
Plan (IRMP) was revised and adopted to
provide for long term management of
the Tribe’s natural resources, including
the southwestern willow flycatcher’s
habitat. The addendum to the Pueblo’s
IRMP specifically addresses measures to
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protect southwestern willow flycatcher
habitat based on the Southwestern
Willow Flycatcher Recovery Plan
(Service 2002, entire). While funding
specific for IRMP implementation has
not been fully secured unless surplus
funds are available, the Pueblo has
committed to the IRMPs
implementation and the Addendum is
now part of the Pueblo policy in this
area. The Pueblo de San Ildefonso
worked with the Corps to protect the
southwestern willow flycatcher’s habitat
on tribal lands under agreements in
place to serve that purpose. Though the
western yellow-billed cuckoo has not
been included in the IRMP, many
management practices aid in the
conservation of the western yellowbilled cuckoo. These include, but are
not limited to, restoring adequate waterrelated elements to improve and expand
the quality, quantity, and distribution of
riparian habitat; retaining riparian
vegetation in the floodplain and
minimizing clearing of vegetation; and,
managing livestock grazing and
improving fences to prevent damage to
riparian areas and increase riparian
habitat quality and quantity. We expect
the Pueblo to continue such
conservation activity for the western
yellow-billed cuckoo based on the
Pueblo’s commitment to natural
resource protection and enhancement
even if the southwestern willow
flycatcher is delisted.
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Benefits of Inclusion—San Ildefonso
Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. Since listing, one consultation
and conference for western yellowbilled cuckoo occurred in 2016. The
consultation and conference was with
Reclamation, who made a ‘‘no effect’’
determination on the western yellowbilled cuckoo and its proposed critical
habitat in the Pojoaque Basin Regional
Water System and Associated
Connected Actions Biological
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Jkt 253001
Assessment and consultation number
02ENNM00–2016–I–0398.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or Pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—San Ildefonso
Pueblo
The benefits of excluding the Pueblo
from designated critical habitat are
significant. We have determined that the
significant benefits that would be
realized by foregoing the designation of
critical habitat on this area include: (1)
Our deference to the Pueblo to develop
and implement conservation and
natural resource management plans for
their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
Educational benefits will be provided
to the Pueblo lands if they are excluded
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Fmt 4701
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from the designation, because their past
and ongoing restoration projects, with
management goals, provide for
conservation benefits above any that
would be provided by designating
critical habitat. For example, the
educational aspects are similar for this
area if they are not included in the
designation because the Pueblo will
continue to work cooperatively toward
the conservation of the riparian
ecosystem, and we have determined that
based on their history of conservation,
that this will also benefit the western
yellow-billed cuckoo.
The exclusion from critical habitat
will further support and maintain our
cooperative working relationship with
the Pueblo, and provide conservation
benefits, including implementing
habitat restoration and enhancements
above those which have already been
implemented. During past discussions
with the Pueblo, we were informed that
critical habitat would be viewed as an
intrusion on their sovereign abilities to
manage natural resources in accordance
with their own policies, customs, and
laws. For these reasons, we have
determined that our working
relationship with the Pueblo would be
maintained if they are excluded from
the designation of critical habitat for the
western yellow-billed cuckoo. We view
this as a substantial benefit.
Protection of river and riparian
habitat resources remains an important
component of the Pueblo’s culture and
traditions. The Pueblo will continue to
protect riparian habitat on tribal land
through its existing programs and
agreements.
The long-term goal of riparian
management on San Ildefonso Pueblo is
to make significant additions of wetland
areas for breeding southwestern willow
flycatchers, as well as implement
innovative restoration techniques,
decrease fire hazards by restoring native
vegetation, share information with other
restoration practitioners, use restoration
projects in the education of the tribal
community and surrounding
community, and provide a working and
training environment for the people of
the Pueblo. These efforts will also
provide benefit to the western yellowbilled cuckoo.
Based on their traditional beliefs and
ties to the bosque area, the Pueblo
continues to protect, conserve, and
restore the riparian species and their
habitat. The Pueblo has invested
ongoing time and effort to address the
needs and recovery of the southwestern
willow flycatcher and we have
determined that, based on this history,
that the Pueblo will also invest time and
effort in conservation for the western
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yellow-billed cuckoo. In addition, based
on the long term goals of restoring
additional wetland and native habitat,
the Pueblo has shown that it is
managing its resources to meet its
traditional and cultural needs, while
addressing the needs of federally listed
species.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. As mentioned
above, the Pueblo is an important land
manager in the Upper Rio Grande Unit.
The commitments in the IRMP
demonstrate the willingness of the
Pueblo to work cooperatively with us
toward conservation efforts that will
benefit listed species. The Pueblo has
committed to several ongoing or future
management, restoration, enhancement,
activities that may not occur with
critical habitat designation. Therefore,
we have determined that the results of
these activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Pueblo lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—San Ildefonso
Pueblo
The benefits of including the Pueblo
in the critical habitat designation are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. The benefits of including
the Pueblo in critical habitat are low,
and are limited to minor educational
benefits. However, due to the rarity of
Federal actions resulting in formal
section 7 consultations, the benefits of
a critical habitat designation are
minimized. The benefits of consultation
are further minimized because any
conservation measures which may have
resulted from consultation are already
provided through other mechanisms,
such as (1) the conservation benefits to
the western yellow-billed cuckoo and
their habitat from implementation of the
Pueblo’s management plans; and (2) the
maintenance of effective collaboration
and cooperation to promote the
conservation of the southwestern
willow flycatcher and western yellowbilled cuckoo and their habitat. Because
the Pueblo has developed a specific
management plan, has been involved
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with the critical habitat designation
process, and is aware of the value of
their lands for western yellow-billed
cuckoo conservation, the educational
benefits of a western yellow-billed
cuckoo critical habitat designation are
also minimized.
The benefits of excluding these areas
from designation as critical habitat for
the western yellow-billed cuckoo are
significant, and include encouraging the
continued development and
implementation of special management
measures such as enhancement, and
restoration activities that the Pueblo
plans for the future or is currently
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Upper Rio Grande Unit and the western
yellow-billed cuckoo, without the
perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
Exclusion Will Not Result in Extinction
of the Species—San Ildefonso Pueblo
We have determined that exclusion of
the Pueblo land from the designation of
critical habitat will not result in
extinction of the western yellow-billed
cuckoo. We base this determination on
several points. Firstly, as discussed
above under Effects of Critical Habitat
Designation Section 7 Consultation, if a
Federal action or permitting occurs, the
known presence of western yellowbilled cuckoos or their habitat would
require evaluation under the jeopardy
standard of section 7 of the Act, even
absent the designation of critical habitat,
and thus will protect the species against
extinction. Secondly, the Pueblo is
committed to protecting and managing
Pueblo lands and species found on
those lands according to their tribal and
cultural management plans and natural
resource management objectives, which
provide conservation benefits for the
species and its habitat. In short, the
Pueblo is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat.
Accordingly, we have determined that
the 1,032 ac (418 ha) of San Ildefonso
lands be excluded under subsection
4(b)(2) of the Act because the benefits of
exclusion outweigh the benefits of
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20923
inclusion and will not cause the
extinction of the species.
Unit 37: NM–6A) Middle Rio Grande—
Santa Ana Pueblo, NM
On Santa Ana Pueblo, we proposed
862 ac (349 ha) of critical habitat within
Sandoval County, New Mexico. The
entire area is excluded from the final
designation.
The Pueblo is an important land
manager in the Middle Rio Grande. The
Pueblo of Santa Ana has developed and
maintained a long standing history of
habitat projects and conservation that
includes the southwestern willow
flycatcher, Rio Grande silvery minnow,
and the western yellow-billed cuckoo.
The objective of their management
program is to protect, conserve, and
promote the resources associated with
the southwestern willow flycatcher,
silvery minnow, and western yellowbilled cuckoo within the Pueblo’s
boundaries. Over the last 26 years, an
estimated 3 formal consultations have
occurred and all have been associated
with either the Rio Grande silvery
minnow or southwestern willow
flycatcher. No consultations for western
yellow-billed cuckoo have occurred for
actions on Santa Ana Pueblo lands. The
consultation history, surveys, and
conservation, restoration and
management information historically
submitted by the Pueblo documents that
meaningful collaborative and
cooperative work for listed species and
their habitat that have occurred within
their lands. These commitments
demonstrate the willingness of the
Pueblo to work cooperatively with us
toward conservation efforts that will
benefit the western yellow-billed
cuckoo. The Pueblo has committed to
several ongoing or future management,
restoration, enhancement, and survey
activities that may not occur with
critical habitat designation. The Santa
Ana Pueblo has completed restoration
and conservation efforts, including a
Safe Harbor Agreement, for the efforts
associated with the southwestern
willow flycatcher, and our ongoing
conservation partnership. We have
determined that the management
practices of Santa Ana Pueblo fulfills
our criteria for exclusion.
Benefits of Inclusion—Santa Ana
Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
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any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, the Pueblo is
already working with the Service to
address the habitat needs of the species.
For these reasons, then, we have
determined that designation of critical
habitat would have few, if any,
additional benefits beyond those that
will result from continued consultation
for the presence of the species.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—Santa Ana
Pueblo
The benefits of excluding the Pueblo
from designated critical habitat are
significant and include: (1) Our
deference to the Pueblo to develop and
implement conservation and natural
resource management plans for their
lands and resources, which includes
benefits to the western yellow-billed
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Jkt 253001
cuckoo and its habitat that might not
otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Santa Ana
Pueblo should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land. In
comments submitted on October 21,
2014, the Santa Ana Pueblo indicated
that they would discourage designation
of critical habitat on their lands. During
our discussions with Santa Ana Pueblo
in development of this final designation,
it became clear to the Service that a
critical habitat designation on Santa
Ana land would be viewed as
disrespectful and an intrusion on their
sovereign abilities to manage natural
resources in accordance with their own
policies, customs, and laws. The
perceived restrictions of a critical
habitat designation could have a more
damaging effect to coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the western yellow-billed cuckoo and
other endangered or threatened species
like the southwestern willow flycatcher
and the Rio Grande silvery minnow.
As part of our working relationship
with the Pueblo, conservation benefits,
including listed species’ surveys, nest
and/or habitat monitoring, and/or
habitat restoration and enhancement
have been possible. By excluding
critical habitat from the Santa Ana
Pueblo, we have determined that our
working relationship with the Pueblo
would be maintained. We view this as
a substantial benefit.
Therefore, we have determined that
the results of these activities will
promote long-term protection and
conserve the western yellow-billed
cuckoo and its habitat within the Pueblo
lands. The benefits of excluding this
area from critical habitat will encourage
the continued cooperation and
development of data-sharing and
management plans.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Santa Ana
Pueblo
The benefits of including the Pueblo
in the critical habitat designation are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
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and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations (an estimated 3
formal consultations over the last 26
years and all associated with either Rio
Grande silvery minnow or southwestern
willow flycatcher), the benefits of a
critical habitat designation are
minimized. In addition, the benefits of
consultation are further minimized
because any conservation measures
which may have resulted from
consultation are already provided
through other mechanisms, such as (1)
the conservation benefits to the western
yellow-billed cuckoo and their habitat
from implementation of the Pueblo’s
management plans; and (2) the
maintenance of effective collaboration
and cooperation to promote the
conservation of the southwestern
willow flycatcher and western yellowbilled cuckoo and their habitat.
The Pueblo will continue to protect
its bosque habitat and does not intend
to develop the areas we proposed as
western yellow-billed cuckoo critical
habitat. Moreover, under the historical
and present management program, the
Pueblo has conducted a variety of
voluntary measures, restoration projects,
monitoring programs and management
actions to conserve riparian vegetation,
including protecting riparian habitat
from fire, maintaining native vegetation,
completing surveys, working with BIA,
Reclamation, USFS, the State of New
Mexico, and the Service to acquire
funding for restoration projects, and
preventing habitat fragmentation.
For these reasons, we have
determined that our working
relationship will be better maintained if
Santa Ana Pueblo was excluded from
the designation of western yellow-billed
cuckoo critical habitat. We view this as
a substantial benefit since we have
developed a cooperative working
relationship for the mutual benefit of
endangered and threatened species,
including the western yellow-billed
cuckoo.
In summary, the benefits of including
the Pueblo in critical habitat are low,
and are limited to insignificant
educational benefits. The benefits of
excluding these areas from designation
as critical habitat for the western
yellow-billed cuckoo are significant,
and include encouraging the continued
development and implementation of
special management measures such as
monitoring, surveys, enhancement, and
restoration activities that the Pueblo
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plans for the future or is currently
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Middle Rio Grande Unit and the
western yellow-billed cuckoo, without
the perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
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Exclusion Will Not Result in Extinction
of the Species—Santa Ana Pueblo
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. First, activities
on this area that may affect the western
yellow-billed cuckoo will require
consultation under section 7 of the Act.
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 listed species. Therefore,
even without critical habitat designation
on this land, activities that occur on this
land cannot jeopardize the continued
existence of the western yellow-billed
cuckoo. Second, the Pueblo is
committed to protecting and managing
Pueblo lands and species found on
those lands according to their tribal and
cultural management plans and natural
resource management objectives, which
provide conservation benefits for the
species and its habitat. In short, the
Pueblo is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat.
Accordingly, we have determined that
the 862 ac (349 ha) of Pueblo lands of
Santa Ana be excluded under
subsection 4(b)(2) of the Act because the
benefits of exclusion outweigh the
benefits of inclusion and will not cause
the extinction of the species.
Unit 37 (NM–6A) Middle Rio Grande—
Santo Domingo Tribe, NM
On Santo Domingo Tribal Lands, we
proposed 1,872 ac (758 ha) of critical
habitat within Sandoval County, New
Mexico. We are excluding the Santo
Domingo Tribe from this final
designation. The Tribe is an important
land manager in the Middle Rio Grande.
Their history of conservation includes
completing surveys, providing for
conservation, management, and
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Jkt 253001
restoration of habitat, and working in a
meaningful, collaborative, and
cooperative approach toward listed
species conservation. To document this
the Santo Domingo Tribe has developed
a Western Yellow-billed Cuckoo
Management Plan. We have determined
that the plan fulfills our criteria for
exclusion. Under the comprehensive
Western Yellow-billed Cuckoo
Management Plan, the Santo Domingo
Tribe has conducted a variety of
voluntary measures, restoration projects,
and management actions to conserve
riparian vegetation, including native
vegetation enhancement, promotion of
overbank flooding, pollution
monitoring, species surveys and
creating side channels, oxbows and
wetlands. Despite conducting these
activities, the consultation history with
the Service has been minimal (1 formal
consultation involving the Rio Grande
silvery minnow dating back to 1995).
Benefits of Inclusion—Santo Domingo
Tribe
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
PO 00000
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Fmt 4701
Sfmt 4700
20925
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—Santo Domingo
Tribe
The benefits of excluding the Tribe
from designated critical habitat include:
(1) Our deference to the Pueblo to
develop and implement conservation
and natural resource management plans
for their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Santo
Domingo Tribe should be the
governmental entity to manage and
promote the conservation of the western
yellow-billed cuckoo on their land. The
designation of critical habitat on Santo
Domingo would be expected to have an
adverse impact on our working
relationship. From comments we
received from Santo Domingo Pueblo on
September 16, 2019, on the proposed
designation of critical habitat for the
western yellow-billed cuckoo, it became
clear to the Service that critical habitat
would be viewed as an intrusion on
their sovereign abilities to manage
natural resources in accordance with
their own policies, customs, and laws.
The perceived restrictions of a critical
habitat designation could have a more
damaging effect to coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the western yellow-billed.
We find that other conservation
benefits are provided to the Middle Rio
Grande Unit and the western yellowbilled cuckoo and its habitat by
excluding the Tribe from the
designation. For example, as part of
maintaining a cooperative working
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relationship with the Tribe,
conservation benefits, including listed
species’ surveys, nest and/or habitat
monitoring, and/or habitat restoration
and enhancement have been possible as
evidenced by the development of the
Western Yellow-billed Cuckoo
Management Plan and their history of
completing bird surveys on their tribal
lands for more than ten years. The
objective of their Management Plan is to
protect and improve habitat for all avian
species and wildlife on their tribal
lands. IN comments submitted on
September 16, 2019, the Santo Domingo
Tribe indicated that it opposes the
designation of critical habitat. The Santo
Domingo Tribe would like to manage
natural resources in accordance with
their own policies, customs, and laws.
For these reasons, we have determined
that our working relationship with the
Tribe would be maintained if they are
excluded from the designation of critical
habitat for the western yellow-billed
cuckoo. We view this as a substantial
benefit.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. As mentioned
above, the Tribe is an important land
manager in the Middle Rio Grande Unit.
The history in completing surveys,
conservation, restoration and
management documents that
meaningful collaborative and
cooperative work for listed species and
their habitat will continue within their
lands. These commitments demonstrate
the willingness of the Tribe to work
cooperatively with us toward
conservation efforts that will benefit the
western yellow-billed cuckoo. The Tribe
has committed to several ongoing or
future management, restoration,
enhancement, and survey activities that
may not occur with critical habitat
designation. Therefore, we have
determined that the results of these
activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Tribal lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Santo Domingo
Tribe
The benefits of including the Tribe in
the critical habitat designation are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
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agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations (one formal
consultation since 1995), the benefits of
a critical habitat designation are
minimized. In addition, the benefits of
consultation are further minimized
because any conservation measures
which may have resulted from
consultation are already provided
through other mechanisms, such as (1)
the conservation benefits to the western
yellow-billed cuckoo and their habitat
from implementation of the Tribe’s
Western Yellow-billed Cuckoo
Management Plan; and (2) the
maintenance of effective collaboration
and cooperation to promote the
conservation of the western yellowbilled cuckoo and its habitat. We view
these as substantial benefits since we
have developed a cooperative working
relationship with the Tribe for the
mutual benefit of endangered and
threatened species, including the
western yellow-billed cuckoo. We find
that the benefits of excluding this area
from critical habitat designation
outweigh the benefits of including this
area.
Exclusion Will Not Result in Extinction
of the Species—Santo Domingo Tribe
We have determined that exclusion of
the Tribal land will not result in
extinction of the species. Firstly, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Tribe is committed to protecting and
managing Tribal lands and species
found on those lands according to their
tribal and cultural management plans
and natural resource management
objectives, which provide conservation
benefits for the species and its habitat.
In short, the Tribe is committed to
greater conservation measures on their
land than would be available through
the designation of critical habitat.
Accordingly, we have determined that
the 1,872 ac (758 ha) of Tribal lands of
Santo Domingo are excluded under
subsection 4(b)(2) of the Act because the
benefits of exclusion outweigh the
benefits of inclusion and will not cause
the extinction of the species.
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Unit 37 (NM–6A) Middle Rio Grande—
Cochiti Pueblo, NM
We proposed 1,458 ac (590 ha) of
Cochiti Pueblo as critical habitat along
the Rio Grande. We excluding all of
Cochiti Pueblo lands from the final
designation.
The Cochiti Pueblo has a
demonstrated productive working
relationship with the Service in
conservation of listed species and we
are aware of Cochiti Pueblo’s history of
conducting a variety of voluntary
measures, restoration projects, and
management actions to conserve
riparian vegetation, including the
prevention of riparian habitat from fire,
maintaining native vegetation, and
preventing habitat fragmentation. These
measures shows the commitment and
history of activities being implemented
by the Pueblo for meaningful,
collaborative, and cooperative work for
conservation of listed species. This
history demonstrates the willingness of
the Pueblo to work cooperatively with
us toward conservation efforts that will
benefit the western yellow-billed
cuckoo. The Pueblo has committed to
several ongoing or future management,
restoration, enhancement, and survey
activities on their lands. However,
dating back to 1989, there have been just
two formal consultations and they were
associated with the Rio Grande silvery
minnow and Bald eagle (Haliaeetus
leucocephalus).
Benefits of Inclusion—Cochiti Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
yellow-billed cuckoo and its habitat that
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reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, Cochiti Pueblo is
already working with the Service to
address the habitat needs of the species.
For these reasons, then, we have
determined that designation of critical
habitat would have few, if any,
additional benefits beyond those that
will result from continued consultation
for the presence of the species due to
the implementation of the Pueblo’s
voluntary conservation measures,
restoration projects, and management.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—Cochiti Pueblo
The benefits of excluding Cochiti
Pueblo from designated critical habitat
include: (1) Our deference to the Pueblo
to develop and implement conservation
and natural resource management plans
for their lands and resources, which
includes benefits to the western yellowbilled cuckoo and its habitat that might
not otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Cochiti
Pueblo should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land. During our
coordination with Cochiti Pueblo on
February 25, 2020, during the
development of this final designation,
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Jkt 253001
we were informed that the Pueblo
prefers exclusion of its lands from
critical habitat and the ability to manage
their lands as appropriate for their
cultural needs and traditional values.
Proactive voluntary conservation efforts
have and will continue to promote the
recovery of the western yellow-billed
cuckoo. As mentioned above, the Pueblo
is an important land manager in the
Middle Rio Grande Unit and historically
has provided for conservation of listed
species including the western yellowbilled cuckoo. The Pueblo has
committed to several ongoing or future
management, restoration, enhancement,
and survey activities that may not occur
with critical habitat designation.
Therefore, we have determined that the
results of these activities will promote
long-term protection and conserve the
western yellow-billed cuckoo and its
habitat within the Pueblo lands. The
benefits of excluding this area from
critical habitat will encourage the
continued cooperation and development
of data-sharing and management plans.
We view this as a substantial benefit.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Cochiti Pueblo
The benefits of including the Pueblo
in the critical habitat designation are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, due to the rarity
of Federal actions resulting in formal
section 7 consultations (two formal
consultations since 1989), the benefits
of a critical habitat designation are
minimized. In addition, the benefits of
consultation are further minimized
because any conservation measures
which may have resulted from
consultation are already provided
through other mechanisms, such as (1)
the conservation benefits to the western
yellow-billed cuckoo and their habitat
from actions being implemented by the
Pueblo; and (2) the maintenance of
effective collaboration and cooperation
to promote the conservation of the
western yellow-billed cuckoo and its
habitat. We view these as substantial
benefits since we have developed a
cooperative working relationship with
the Pueblo for the mutual benefit of
endangered and threatened species,
including the western yellow-billed
cuckoo.
Because the Pueblo has developed a
history of conservation activities for the
western yellow-billed cuckoo, has been
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20927
involved with the critical habitat
designation process, and is aware of the
value of their lands for western yellowbilled cuckoo conservation, the
educational benefits of a western
yellow-billed cuckoo critical habitat
designation are also minimized.
By allowing the Pueblo to implement
its own resource conservation programs,
it gives the Pueblo the opportunity to
manage their natural resources to
benefit riparian habitat for the western
yellow-billed cuckoo, without the
perception of Federal Government
intrusion. The exclusion of these areas
will likely also provide additional
benefits to the western yellow-billed
cuckoo and other listed species that
would not otherwise be available
without the Service’s maintaining a
cooperative working relationships with
the Pueblo. The actions taken by the
Pueblo to manage and protect habitat
needed for western yellow-billed
cuckoo are above those conservation
measures which may be required if the
area was designated as critical habitat.
As a result, we have determined that the
benefits of excluding these tribal lands
from critical habitat designation
outweigh the benefits of including these
areas. We find that the benefits of
excluding this area from critical habitat
designation outweigh the benefits of
including this area.
Exclusion Will Not Result in Extinction
of the Species—Cochiti Pueblo
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. We base this
determination on several points. Firstly,
as discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Second,
the Pueblo is committed to protecting
and managing Pueblo lands and the
species found on those lands according
to their tribal, cultural, and natural
resource management history, which
provide conservation benefits for the
species and its habitat.
In short, Cochiti Pueblo is committed
to greater conservation measures on
their land than would be available
through the designation of critical
habitat. We have determined that this
commitment accomplishes greater
conservation than would be available
through the implementation of a
designation of critical habitat on a
project-by-project basis. Accordingly,
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we have determined that 1,458 ac (590
ha) of the Cochiti Pueblo lands be
excluded from the final designation
under subsection 4(b)(2) of the Act
because the benefits of exclusion
outweigh the benefits of inclusion and
will not cause the extinction of the
species.
khammond on DSKJM1Z7X2PROD with RULES2
Unit 37 (NM–6A) Middle Rio Grande—
San Felipe Pueblo, NM
On San Felipe Pueblo, we proposed
2,368 ac (958 ha) of critical habitat
within Sandoval County, New Mexico.
We are excluding the entire area from
the final designation of critical habitat.
The San Felipe Pueblo has a
demonstrated productive working
relationship with the Service in
conservation of listed species and we
are aware of San Felipe Pueblo’s history
of conducting a variety of voluntary
measures, restoration projects, and
management actions to conserve
riparian vegetation, including
conducting listed species’ surveys, nest
and habitat monitoring, and habitat
restoration and enhancement through
the Pueblo’s development and
implementation of their Wildlife
Management Plan specific to the
western yellow-billed cuckoo. The
objective of this plan is to protect,
conserve, and promote the management
of the western yellow-billed cuckoo and
their associated habitats within the
Pueblo’s boundaries. The development
and implementation of the plan
demonstrates the Pueblo’s willingness
to work cooperatively with the Service
and other partners on conservation
efforts that will benefit the western
yellow-billed cuckoo.
Benefits of Inclusion—San Felipe
Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat.
Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
and this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the western
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yellow-billed cuckoo and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, the Pueblo is
already working with the Service to
address the habitat needs of the species.
For these reasons, then, we have
determined that designation of critical
habitat would have few, if any,
additional benefits beyond those that
will result from continued consultation
for the presence of the species.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—San Felipe
Pueblo
We have determined that significant
benefits would be realized by foregoing
the designation of critical habitat. These
benefits include: (1) Our deference to
the Pueblo to develop and implement
conservation and natural resource
management plans for their lands and
resources, which includes benefits to
the western yellow-billed cuckoo and its
habitat that might not otherwise occur;
(2) the continuance and strengthening of
our effective working relationships with
the Pueblo to promote the conservation
of the western yellow-billed cuckoo and
its habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that San Felipe
Pueblo should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land due to the
additional conservation benefits that
would be provided for the western
yellow-billed cuckoo and its habitat by
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Fmt 4701
Sfmt 4700
excluding the Pueblo from the
designation. Comments submitted by
San Felipe Pueblo on December 19,
2014, informed us that a critical habitat
designation would limit the ability of
the Pueblo to manage their lands and
restrict their cultural needs and
traditional values, and recommended
exclusion. For these reasons, we have
determined that our working
relationship with the Pueblo would be
better maintained if they are excluded
from the designation of critical habitat
for the western yellow-billed cuckoo.
We view this as a substantial benefit.
The perceived restrictions of a critical
habitat designation could have a more
damaging effect to coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the western yellow-billed cuckoo and
other endangered or threatened species
like the southwestern willow flycatcher.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. As mentioned
above, the Pueblo is an important land
manager in the Middle Rio Grande Unit.
The consultation history, surveys, and
conservation, restoration and
management information historically
submitted by the Pueblo documents that
meaningful collaborative and
cooperative work for listed species and
their habitat will continue within their
lands. These commitments demonstrate
the willingness of the Pueblo to work
cooperatively with us toward
conservation efforts that will benefit the
western yellow-billed cuckoo. Overall,
the commitments toward management
of western yellow-billed cuckoo habitat
by the Pueblo likely accomplish greater
conservation than would be available
through the implementation of a
designation of critical habitat on a
project-by-project basis.
The Pueblo has committed to several
ongoing or future management,
restoration, enhancement, and survey
activities that may not occur with
critical habitat designation. Therefore,
we have determined that the results of
these activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Pueblo lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—San Felipe
Pueblo
The benefits of including the Pueblo
in the critical habitat designation are
limited to the incremental benefits
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gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, as discussed
above, we have determined that these
benefits are minimized because they are
provided through other mechanisms,
such as (1) the conservation benefits to
the western yellow-billed cuckoo and
their habitat from implementation the
Pueblo’s Wildlife Management Plan;
and (2) the maintenance of effective
collaboration and cooperation to
promote the conservation of the western
yellow-billed cuckoo and their habitat.
The Pueblo will continue to protect its
bosque habitat and does not intend to
develop the areas we proposed as
western yellow-billed cuckoo critical
habitat. Moreover, under the
comprehensive Wildlife Management
Plan, San Felipe Pueblo has conducted
a variety of voluntary measures,
restoration projects, and management
actions to conserve riparian vegetation,
including the prevention of riparian
habitat from fire, maintaining native
vegetation, and preventing habitat
fragmentation.
We have determined that our working
relationship will be better maintained if
San Felipe Pueblo was excluded from
the designation of western yellow-billed
cuckoo critical habitat. We view this as
a substantial benefit since we have
developed a cooperative working
relationship for the mutual benefit of
endangered and threatened species,
including the western yellow-billed
cuckoo.
In summary, the benefits of including
the Pueblo in critical habitat are low,
and are limited to insignificant
educational benefits. The benefits of
excluding these areas from designation
as critical habitat for the western
yellow-billed cuckoo are significant,
and include encouraging the continued
development and implementation of
special management measures such as
monitoring, surveys, enhancement, and
restoration activities that the Pueblo
plans for the future or is currently
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Middle Rio Grande Unit and the
western yellow-billed cuckoo, without
the perception of Federal Government
intrusion. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
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Jkt 253001
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
Exclusion Will Not Result in Extinction
of the Species—San Felipe Pueblo
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. Firstly, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Pueblo is committed to protecting
and managing Pueblo lands and species
found on those lands according to their
tribal and cultural management plans
and natural resource management
objectives, which provide conservation
benefits for the species and its habitat.
In short, the Pueblo is committed to
greater conservation measures on their
land than would be available through
the designation of critical habitat.
Accordingly, we have determined that
the Pueblo lands of San Felipe should
be excluded under subsection 4(b)(2) of
the Act because the benefits of
exclusion outweigh the benefits of
inclusion and will not cause the
extinction of the species. Therefore, we
are excluding the 2,368 ac (958 ha) of
Pueblo lands of San Felipe of Unit 37
NM–6A from the final critical habitat
designation.
Unit 37 (NM–6B) Middle Rio Grande—
Isleta Pueblo, NM
On Isleta Pueblo, approximately 2,165
ac (876 ha) of critical habitat was
identified within Bernalillo County,
New Mexico. We are excluding the
entire area from critical habitat. The
Isleta Pueblo have developed and
implemented a Riverine Management
Plan for conservation of riparian
resources on their lands (Isleta Pueblo
2015, entire). We have determined that
the Isleta Riverine Management Plan
fulfills our criteria for exclusion and
includes measures to maintain,
improve, or restore habitat for the
western yellow-billed cuckoo and other
endangered or threatened species like
the southwestern willow flycatcher,
silvery minnow, and New Mexico
meadow jumping mouse.
Benefits of Inclusion—Isleta Pueblo
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
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20929
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. A critical habitat designation
requires Federal agencies to consult on
whether their activity would destroy or
adversely modify critical habitat to the
point where recovery could not be
achieved. Another possible benefit is
that the designation of critical habitat
can serve to educate the public
regarding the potential conservation
value of an area, and this may focus and
contribute to conservation efforts by
other parties by clearly delineating areas
of high conservation value for certain
species. Any information about the
western yellow-billed cuckoo and its
habitat that reaches a wide audience,
including other parties engaged in
conservation activities, would be
considered valuable. However, the
Pueblo is already working with the
Service to address the habitat needs of
the species. For these reasons, then, we
have determined that designation of
critical habitat would have few, if any,
additional benefits beyond those that
will result from continued consultation
for the presence of the species.
Another possible benefit of the
designation of critical habitat is that it
may also affect the implementation of
Federal laws, such as the Clean Water
Act. These laws require analysis of the
potential for proposed projects to
significantly affect the environment.
Critical habitat may signal the presence
of sensitive habitat that could otherwise
be missed in the review process for
these other environmental laws.
Finally, there is the possible benefit
that additional funding could be
generated for habitat improvement by an
area being designated as critical habitat.
Some funding sources may rank a
project higher if the area is designated
as critical habitat. Tribes or pueblos
often seek additional sources of funding
in order to conduct wildlife-related
conservation activities. Therefore,
having an area designated as critical
habitat could improve the chances of
receiving funding for western yellowbilled cuckoo habitat-related projects.
Benefits of Exclusion—Isleta Pueblo
The benefits of excluding the Pueblo
from designated critical habitat are
significant and include: (1) Our
deference to the Pueblo to develop and
implement conservation and natural
resource management plans for their
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lands and resources, which includes
benefits to the western yellow-billed
cuckoo and its habitat that might not
otherwise occur; (2) the continuance
and strengthening of our effective
working relationships with the Pueblo
to promote the conservation of the
western yellow-billed cuckoo and its
habitat; and (3) the maintenance of
effective partnerships with the Pueblo
and working in collaboration and
cooperation to promote additional
conservation of the western yellowbilled cuckoo and their habitat.
We have determined that Isleta
Pueblo should be the governmental
entity to manage and promote the
conservation of the western yellowbilled cuckoo on their land due to the
additional conservation benefits that
would be provided for the western
yellow-billed cuckoo and its habitat by
excluding the Pueblo from the
designation. In comments received from
the Isleta Pueblo on January 14, 2015,
and July 17, 2020, we were informed
that critical habitat would be viewed as
an intrusion on their sovereign abilities
to manage natural resources in
accordance with their own policies,
customs, and laws. During our
discussions with Isleta Pueblo, they
informed us that their perceived
restrictions of a critical habitat
designation could have a damaging
effect to coordination efforts, possibly
preventing actions that might maintain,
improve, or restore habitat for the
western yellow-billed cuckoo and other
endangered or threatened species. For
these reasons, we have determined that
our working relationship with the
Pueblo would be better maintained if
they are excluded from the designation
of critical habitat for the western
yellow-billed cuckoo. For example, as
part of maintaining a cooperative
working relationship with the Pueblo,
conservation benefits, including listed
species’ surveys, nest and/or habitat
monitoring, and/or habitat restoration
and enhancement have been possible.
We view this as a substantial benefit.
Proactive voluntary conservation
efforts have and will continue to
promote the recovery of the western
yellow-billed cuckoo. The Pueblo of
Isleta has developed and maintained a
Riverine Management Plan that includes
the southwestern willow flycatcher, Rio
Grande silvery minnow, New Mexico
meadow jumping mouse, and now
contains an amendment to include the
western yellow-billed cuckoo. The
objective of this plan is to protect,
conserve, and promote the management
of the southwestern willow flycatcher,
Rio Grande silvery minnow, and New
Mexico meadow jumping mouse and
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their associated habitats within the
Pueblo’s boundaries. As mentioned
above, the Pueblo is an important land
manager in the Middle Rio Grande Unit.
The consultation history, surveys, and
conservation, restoration and
management information historically
submitted by the Pueblo documents that
meaningful collaborative and
cooperative work for listed species and
their habitat will continue within their
lands. These commitments demonstrate
the willingness of the Pueblo to work
cooperatively with us toward
conservation efforts that will benefit the
western yellow-billed cuckoo. The
Pueblo has committed to several
ongoing or future management,
restoration, enhancement, and survey
activities that may not occur with
critical habitat designation. Therefore,
we have determined that the results of
these activities will promote long-term
protection and conserve the western
yellow-billed cuckoo and its habitat
within the Pueblo lands. The benefits of
excluding this area from critical habitat
will encourage the continued
cooperation and development of datasharing and management plans.
Benefits of Exclusion Outweigh the
Benefits of Inclusion—Isleta Pueblo
The benefits of including Pueblo
lands in the critical habitat designation
are limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
agency and educational awareness,
potential additional grant funding, and
the implementation of other law and
regulations. However, as discussed in
detail above, we have determined that
these benefits are minimized because
they are provided through other
mechanisms, such as (1) the
conservation benefits to the western
yellow-billed cuckoo and their habitat
from implementation of the Pueblo’s
management plans; and (2) the
maintenance of effective collaboration
and cooperation to promote the
conservation of the western yellowbilled cuckoo and their habitat.
The Pueblo will continue to protect
its bosque habitat and does not intend
to develop the areas we proposed as
western yellow-billed cuckoo critical
habitat. Moreover, under the
comprehensive Riverine Management
Plan, the Isleta Pueblo has conducted a
variety of voluntary measures,
restoration projects, and management
actions to conserve riparian vegetation,
including not allowing cattle to graze
within the bosque, protecting riparian
habitat from fire, maintaining native
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Fmt 4701
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vegetation, and preventing habitat
fragmentation. For these reasons, we
have determined that our working
relationship will be better maintained if
Isleta Pueblo was excluded from the
designation of western yellow-billed
cuckoo critical habitat. We view this as
a substantial benefit since we have
developed a cooperative working
relationship for the mutual benefit of
endangered and threatened species,
including the western yellow-billed
cuckoo.
In summary, the benefits of including
the Pueblo in critical habitat are low,
and are limited to insignificant
educational benefits. The benefits of
excluding these areas from designation
as critical habitat for the western
yellow-billed cuckoo are significant,
and include encouraging the continued
development and implementation of
special management measures such as
monitoring, surveys, enhancement, and
restoration activities that the Pueblo
plans for the future or is currently
implementing. These activities and
projects will allow the Pueblo to manage
their natural resources to benefit the
Middle Rio Grande Unit and the
western yellow-billed cuckoo, without
the perception of Federal Government
intrusion. This philosophy is also
consistent with our published policies
on Native American natural resource
management. The exclusion of this area
will likely also provide additional
benefits to the species that would not
otherwise be available to encourage and
maintain cooperative working
relationships. We find that the benefits
of excluding this area from critical
habitat designation outweigh the
benefits of including this area.
Exclusion Will Not Result in Extinction
of the Species—Isleta Pueblo
We have determined that exclusion of
the Pueblo land will not result in
extinction of the species. Firstly, as
discussed above under Effects of Critical
Habitat Designation Section 7
Consultation, if a Federal action or
permitting occurs, the known presence
of western yellow-billed cuckoos or
their habitat would require evaluation
under the jeopardy standard of section
7 of the Act, even absent the designation
of critical habitat, and thus will protect
the species against extinction. Secondly,
the Pueblo is committed to protecting
and managing Pueblo lands and species
found on those lands according to their
tribal and cultural management plans
and natural resource management
objectives, which provide conservation
benefits for the species and its habitat.
In short, the Pueblo is committed to
greater conservation measures on their
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land than would be available through
the designation of critical habitat.
Accordingly, we have determined that
the 2,165 ac (876 ha) of Isleta Pueblo be
excluded under subsection 4(b)(2) of the
Act because the benefits of exclusion
outweigh the benefits of inclusion and
will not cause the extinction of the
species.
Unit 70 (UT–1) Green River 1—Uintah
and Ouray Indian Reservation Lands
The Ute Tribe of the Uintah and
Ouray Indian Reservation (Ute Tribe)
owns and manages lands along the
Green and Duchene Rivers in Uintah
and Duchesne Counties, Utah within
Unit 70 for the western yellow-billed
cuckoo. Since at least 2016, the Ute
Tribe has conducted conservation
actions for the western yellow-billed
cuckoo and its habitat on their lands
and lands they manage, as described in
the Ute Tribe’s Conservation Strategy for
the Western Yellow-billed Cuckoo on
the Uintah and Ouray Indian
Reservation ((Conservation Strategy)
Sinclear and Simpson 2016, pp. i–20).
The Conservation Strategy outlines
conservation measures being
implemented by the Ute Tribe including
limiting development within 0.5 mi (0.8
ha) of western yellow-billed cuckoo
habitat; ensuring that there is no net loss
of riparian and wetland areas on Ute
Tribal lands; supporting the restoration
and enhancement of riparian and
wetland areas; establishing a
conservation mitigation fund; and
designating western yellow-billed
cuckoo refuge areas. We coordinated
with and assisted the Ute Tribe in the
development of the Conservation
Strategy in 2016. Due to implementation
of the Conservation Strategy, we
identified approximately 14,611 ac
(5,913 ha) of Ute Tribal lands for
exclusion in the revised proposed rule.
During the public comment period, we
received additional land ownership
information from Duchesne County
regarding Tribal and other acquired land
under tribal management. The acquired
lands are lands purchased by the Utah
Reclamation Mitigation and
Conservation Commission (Mitigation
Commission) for the Lower Duchesne
Wetlands Mitigation Project, a project
implemented due to impacts resulting
from construction and operation of the
Central Utah Project (Utah Reclamation
Mitigation and Conservation
Commission et al. 2008, p. S–1). As a
result, we adjusted the area we are
excluding to approximately 15,017 ac
(6,077 ha). A portion are owned by the
Ute Tribe and a portion are federally
acquired lands being managed by the
Ute Tribe.
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Benefits of Inclusion—Uintah and
Ouray Indian Reservation Lands
As discussed above under Effects of
Critical Habitat Designation Section 7
Consultation, Federal agencies, in
consultation with the Service, must
ensure that their actions are not likely
to jeopardize the continued existence of
any listed species or result in the
destruction or adverse modification of
any designated critical habitat of such
species. The difference in the outcomes
of the jeopardy analysis and the adverse
modification