Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Cactus Ferruginous Pygmy-Owl, 72547-72573 [2021-27516]
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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / Proposed Rules
FEDERAL COMMUNICATIONS
COMMISSION
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
47 CFR Part 20
50 CFR Part 17
[GN Docket No. 13–111; Report No. 3183;
FR ID 62697]
[Docket No. FWS–R2–ES–2021–0098;
FF09E21000 FXES1111090FEDR 223]
Petition for Reconsideration of Action
in Rulemaking Proceeding
RIN 1018–BF25
Federal Communications
Commission.
AGENCY:
ACTION:
Petition for Reconsideration.
Petition for Reconsideration
(Petition) has been filed in the
Commission’s rulemaking proceeding
by Thomas C. Power, on behalf of CTIA.
Oppositions to the Petition must
be filed on or before January 6, 2022.
Replies to oppositions must be filed on
or before January 18, 2022.
DATES:
Federal Communications
Commission, 45 L Street NE,
Washington, DC 20554.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Halie Peacher, Attorney-Advisor,
Mobility Division, Wireless
Telecommunications Bureau, (202) 418–
0514 or via email at halie.peacher@
fcc.gov.
This is a
summary of the Commission’s
document, Report No. 3183, released
December 13, 2021. The full text of the
Petition can be accessed online via the
Commission’s Electronic Comment
Filing System at: https://apps.fcc.gov/
ecfs/. The Commission will not send a
Congressional Review Act (CRA)
submission to Congress or the
Government Accountability Office
pursuant to the CRA, 5 U.S.C.
801(a)(1)(A), because no rules are being
adopted by the Commission.
Subject: In the Matter of Promoting
Technological Solutions to Combat
Contraband Wireless Device Use in
Correctional Facilities, Second Report
and Order, published at 86 FR 44635,
August 13, 2021, in GN Docket No. 13–
111. This document is being published
pursuant to 47 CFR 1.429(e). See also 47
CFR 1.4(b)(1) and 1.429(f), (g).
Number of Petitions Filed: 1.
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Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2021–27727 Filed 12–21–21; 8:45 am]
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Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
SUMMARY:
SUPPLEMENTARY INFORMATION:
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Cactus
Ferruginous Pygmy-Owl
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the cactus ferruginous pygmy-owl
(Glaucidium brasilianum cactorum), a
subspecies found in Mexico, southern
Arizona, and southern Texas, as a
threatened species under the
Endangered Species Act of 1973, as
amended (Act). This determination also
serves as our 12-month finding on a
petition to list the cactus ferruginous
pygmy-owl. After a review of the best
available scientific and commercial
information, we find that listing the
subspecies is warranted. Accordingly,
we propose to list the cactus ferruginous
pygmy-owl as a threatened species with
a rule issued under section 4(d) of the
Act (‘‘4(d) rule’’). If we finalize this rule
as proposed, it would add this
subspecies to the List of Endangered
and Threatened Wildlife and extend the
Act’s protections to the subspecies. The
finalization of this rule as proposed
would include the issuance of a 4(d)
rule. Designation of critical habitat was
found to be prudent, but not
determinable at this time. We also are
notifying the public that we have
scheduled an informational meeting
followed by a public hearing on the
proposed rule.
DATES: We will accept comments
received or postmarked on or before
February 22, 2022. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
Eastern Time on the closing date.
Public informational meeting and
public hearing: We will hold a public
informational session from 4:00 p.m. to
5:30 p.m., Mountain Standard Time,
followed by a public hearing from 6:00
p.m. to 7:30 p.m., Mountain Standard
Time, on January 25, 2022.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
SUMMARY:
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www.regulations.gov. In the Search box,
enter the docket number or RIN for this
rulemaking (presented above in the
document headings). For best results, do
not copy and paste either number;
instead, type the docket number or RIN
into the Search box using hyphens.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R2–ES–2021–0098, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Public informational meetings and
public hearings: The public
informational meetings and the public
hearings will be held virtually using the
Zoom platform. See Public Hearing,
below, for more information.
FOR FURTHER INFORMATION CONTACT: Jeff
Humphrey, Field Supervisor, U.S. Fish
and Wildlife Service, Arizona Ecological
Services Field Office, 9828 N 31st Ave.,
Phoenix, AZ, 85051; telephone 602–
242–0210. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, a species warrants listing if it
meets the definition of an endangered
species (in danger of extinction
throughout all or a significant portion of
its range) or a threatened species (likely
to become endangered in the foreseeable
future throughout all or a significant
portion of its range). We have
determined that the cactus ferruginous
pygmy-owl meets the definition of a
threatened species; therefore, we are
proposing to list it as such. To the
maximum extent prudent and
determinable, we must designate critical
habitat for any species that we
determine to be an endangered or
threatened species under the Act.
Listing a species as an endangered or
threatened species and designation of
critical habitat can be completed only
by issuing a rule.
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What this document does. We
propose to list the cactus ferruginous
pygmy-owl as a threatened species
under the Act with a rule issued under
section 4(d) of the Act. As explained in
this document, we find that the
designation of critical habitat for the
cactus ferruginous pygmy-owl is not
determinable at this time.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence.
We have determined that threats to
the cactus ferruginous pygmy-owl
include: (1) Habitat loss and
fragmentation from urbanization,
invasive species, and agricultural or
forest production; and (2) climate
change (effects from future changes in
climate) and climate conditions (effects
from current and past climate), resulting
in hotter, more arid conditions
throughout much of the subspecies’
geographic range. The proposed 4(d)
rule would generally prohibit the same
activities as prohibited for an
endangered species but would allow
exemptions for specific types of
education and outreach activities
already permitted under a Migratory
Bird Treaty Act permit and habitat
restoration and enhancement activities
that improve habitat conditions for the
cactus ferruginous pygmy-owl.
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. As explained
later in this proposed rule, we find that
the designation of critical habitat for the
cactus ferruginous pygmy-owl is not
determinable at this time.
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Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other governmental
agencies, Native American Tribes, the
scientific community, industry, or any
other interested parties concerning this
proposed rule.
We particularly seek comments
concerning:
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(1) The subspecies’ biology, range,
and population trends, including:
(a) Biological or ecological
requirements of the subspecies,
including habitat requirements for
feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the subspecies, its habitat,
or both, and the effectiveness of such
measures.
(2) Factors that may affect the
continued existence of the subspecies,
which may include habitat modification
or destruction, overutilization, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors. We are also seeking
information indicating where threats are
disproportionately affecting the cactus
ferruginous pygmy-owl within specific
portions of its geographical range.
(3) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this
subspecies and existing regulations that
may be addressing those threats.
(4) Additional information concerning
the historical and current status, range,
distribution, and population size of this
subspecies, including the locations of
any additional populations of this
subspecies.
(5) Information on regulations that are
necessary and advisable to provide for
the conservation of the cactus
ferruginous pygmy-owl and that the
Service can consider in developing a
4(d) rule for the subspecies. In
particular, we are seeking information
concerning the extent to which we
should include any of the section 9
prohibitions in the 4(d) rule or whether
we should consider any additional
exceptions from the prohibitions in the
4(d) rule. We encourage public and
agency comments related to our
consideration of using the State
permitting process, if required, in the
4(d) rule as the basis of an exception to
the prohibitions on take related to
certain pygmy-owl survey and
monitoring activities. We are also
specifically seeking documentation of
the effects and benefits of properly
managed grazing on cactus ferruginous
pygmy-owl habitat, as well as the threat
of current and historical improper
grazing in both the United States and
Mexico.
(6) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including
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information to inform the following
factors that the regulations identify as
reasons why designation of critical
habitat may be not prudent:
(a) The species is threatened by taking
or other human activity and
identification of critical habitat can be
expected to increase the degree of such
threat to the species;
(b) The present or threatened
destruction, modification, or
curtailment of a species’ habitat or range
is not a threat to the species, or threats
to the species’ habitat stem solely from
causes that cannot be addressed through
management actions resulting from
consultations under section 7(a)(2) of
the Act;
(c) Areas within the jurisdiction of the
United States provide no more than
negligible conservation value, if any, for
a species occurring primarily outside
the jurisdiction of the United States; or
(d) No areas meet the definition of
critical habitat.
(7) Specific information on:
(a) Demographic information for the
cactus ferruginous pygmy-owl,
including dispersal patterns, prey
relationships, survival, reproduction,
sources of mortality, updated
occurrence records, and population
trends;
(b) The amount and distribution of
cactus ferruginous pygmy-owl habitat,
including habitat connectivity, patch
size, geographic range, and future
climate change effects on the
subspecies’ habitat;
(c) Which areas, that were occupied at
the time of listing and that contain the
physical or biological features essential
to the conservation of the subspecies,
should be included in the designation
and why;
(d) Any additional areas occurring
within the range of the species, [i.e.,
Yuma, Maricopa, Pinal, Pima, Santa
Cruz, Cochise, Graham, Gila counties in
Arizona and Kleberg, Kenedy, Willacy,
Cameron, Hidalgo, Brooks, Jim Wells,
Duval, Jim Hogg, Starr, Zapata, and
Webb counties in Texas], that should be
included in the designation because
they (1) are occupied at the time of
listing and contain the physical or
biological features that are essential to
the conservation of the species and may
require special management
considerations, or (2) are unoccupied at
the time of listing and are essential for
the conservation of the species;
(e) Special management
considerations or protection that may be
needed in critical habitat areas,
including managing for the potential
effects of climate change; and
(f) Which areas, not occupied at the
time of listing, are essential for the
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conservation of the subspecies. We
particularly seek comments:
(i) Regarding whether occupied areas
are adequate for the conservation of the
subspecies; and
(ii) Providing specific information
regarding whether or not unoccupied
areas would, with reasonable certainty,
contribute to the conservation of the
subspecies and contain at least one
physical or biological feature essential
to the conservation of the species; and
(iii) Explaining whether or not
unoccupied areas fall within the
definition of ‘‘habitat’’ at 50 CFR 424.02
and why.
Please include sufficient information
with your submission (such as scientific
journal articles, research reports, survey
results, maps, or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Because we will consider all
comments and information we receive
during the comment period, our final
determinations may differ from this
proposal. Based on any new information
we receive (and any comments on that
new information), we may conclude that
the subspecies is endangered instead of
threatened, or we may conclude that the
subspecies does not warrant listing as
either an endangered species or a
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threatened species. We may also
conclude that the subspecies is not
warranted for listing rangewide, but is
warranted in one of the petitioned
Distinct Population Segments (DPSs)
(see Previous Federal Actions, below).
In addition, we may change the
parameters of the prohibitions or the
exceptions to those prohibitions in the
4(d) rule if we conclude it is appropriate
in light of comments and new
information received. For example, we
may expand the prohibitions to include
prohibiting additional activities if we
conclude that those additional activities
are not compatible with conservation of
the species. Conversely, we may
establish additional exceptions to the
prohibitions in the final rule if we
conclude that the activities would
facilitate or are compatible with the
conservation and recovery of the
species.
Public Hearing
We have scheduled a public
informational meeting and public
hearing on this proposed rule to list the
cactus ferruginous pygmy-owl as a
threatened species. We will hold the
public informational meeting and public
hearing on the date and at the times
listed above under Public informational
meeting and public hearing in DATES.
We are holding the public informational
meeting and public hearing via the
Zoom online video platform and via
teleconference so that participants can
attend remotely. For security purposes,
registration is required. To listen and
view the meeting and hearing via Zoom,
listen to the meeting and hearing by
telephone, or provide oral public
comments at the public hearing by
Zoom or telephone, you must register.
For information on how to register, or if
you encounter problems joining Zoom
the day of the meeting, visit https://
www.fws.gov/southwest/. Registrants
will receive the Zoom link and the
telephone number for the public
informational meeting and public
hearing. If applicable, interested
members of the public not familiar with
the Zoom platform should view the
Zoom video tutorials (https://
support.zoom.us/hc/en-us/articles/
206618765-Zoom-video-tutorials) prior
to the public informational meeting and
public hearing. The public hearing will
provide interested parties an
opportunity to present verbal testimony
(formal, oral comments) regarding this
proposed rule. The public informational
meeting will be an opportunity for
dialogue with the Service. The public
hearing is a forum for accepting formal
verbal testimony. In the event there is a
large attendance, the time allotted for
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oral statements may be limited.
Therefore, anyone wishing to make an
oral statement at the public hearing for
the record is encouraged to provide a
prepared written copy of their statement
to us through the Federal eRulemaking
Portal, or U.S. mail (see ADDRESSES,
above). There are no limits on the length
of written comments submitted to us.
Anyone wishing to make an oral
statement at the public hearings must
register before the hearing (https://
www.fws.gov/southwest/). The use of a
virtual public hearing is consistent with
our regulations at 50 CFR 424.16(c)(3).
Reasonable Accommodation
The Service is committed to providing
access to the public informational
meeting and public hearing for all
participants. Closed captioning will be
available during the public
informational meeting and public
hearing. Further, a full audio and video
recording and transcript of the public
hearing will be posted online at https://
www.fws.gov/southwest/ after the
hearing. Participants will also have
access to live audio during the public
informational meeting and public
hearing via their telephone or computer
speakers. Persons with disabilities
requiring reasonable accommodations to
participate in the meeting and/or
hearing should contact the person listed
under FOR FURTHER INFORMATION
CONTACT at least 5 business days prior
to the date of the meeting and hearing
to help ensure availability. An
accessible version of the Service’s
public informational meeting
presentation will also be posted online
at https://www.fws.gov/southwest/ prior
to the meeting and hearing (see DATES,
above). See https://www.fws.gov/
southwest/ for more information about
reasonable accommodation.
Previous Federal Actions
A thorough summary of previous
Federal actions related to the pygmyowl can be found in the March 10, 1997,
final rule (62 FR 10730) to list the cactus
ferruginous pygmy-owl in Arizona as
endangered; the April 14, 2006, final
rule (71 FR 19452) removing the listing
promulgated in the March 10, 1997,
final rule; the June 2, 2008, 90-day
finding (73 FR 31418); and the October
5, 2011, 12-month finding on a petition
to list (76 FR 61856).
On March 20, 2007, we received a
petition dated March 15, 2007, from the
Center for Biological Diversity and
Defenders of Wildlife (CBD, DOW;
petitioners) requesting that we list the
cactus ferruginous pygmy-owl
(Glaucidium brasilianum cactorum)
(pygmy-owl) as an endangered or
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threatened species under the Act (CBD
and DOW 2007, entire). The petitioners
described three potentially listable
entities of the pygmy-owl: (1) An
Arizona DPS of the pygmy-owl; (2) a
Sonoran Desert DPS of the pygmy-owl;
and (3) the western subspecies of the
pygmy-owl, which they identified as
Glaucidium ridgwayi cactorum. On
October 5, 2011, we published in the
Federal Register (76 FR 61856) a 12month finding on the petition to list the
pygmy-owl as endangered or threatened.
We found that Glaucidium ridgwayi
cactorum was not a valid taxon and,
therefore, not a listable entity under the
Act. Additionally, using the currently
accepted taxonomic classification of the
pygmy-owl (Glaucidium brasilianum
cactorum), we found that listing the
pygmy-owl was not warranted
throughout all or a significant portion of
its range, including the petitioned and
other potential DPS configurations.
In 2014, the Center for Biological
Diversity and Defenders of Wildlife
challenged our determination that
listing the pygmy-owl was not
warranted under the Act (Ctr. For
Biological Diversity v. Jewell, 248 F.
Supp. 3d 946). The challenge centered
on whether we had correctly defined
language in the Act authorizing listing
of a species that is endangered or
threatened in either ‘‘all or a significant
portion of its range’’ (SPR). The
plaintiffs challenged our final policy
interpreting this SPR language (SPR
Policy) and how it was applied in listing
determinations. In its decision on March
28, 2017, the court reasoned that ‘‘if a
portion of a species’ range is
’significant’ only ’if its contribution to
the viability of the species is so
important that, without that portion, the
species would be in danger of
extinction,’ and the species is
endangered or threatened in that portion
(as would be required for listing), then
the species is necessarily endangered or
threatened overall’’ (248 F.Supp.3d at
959). The court thus found the SPR
Policy invalid because it defined
‘‘significant’’ in such a way as to limit
the SPR language to situations in which
it is unnecessary. The court vacated and
remanded the definition of ‘‘significant’’
in the SPR Policy. The not-warranted
finding for the cactus ferruginous
pygmy-owl relied on a draft of this SPR
Policy, which was slightly different than
the final policy. The draft SPR Policy
interpretation defined a range portion as
‘‘significant’’ ‘‘if its contribution to the
viability of the species is so important
that, without that portion, the species
would be in danger of extinction [i.e.,
endangered]’’ (76 FR 76987, December
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9, 2011; p. 77002). The court also found
this interpretation of SPR impermissible
by limiting the SPR language to
situations in which it is unnecessary,
and the court vacated our not-warranted
finding for the pygmy-owl. On
November 14, 2019, the parties to the
lawsuit agreed that the Service would
submit a 12-month finding to the
Federal Register no later than August 5,
2021. On July 6, 2021, the court granted
an extension to allow additional time to
review new data provided by the
Arizona Game and Fish Department.
The new deadline requires that the
Service submit the 12-month finding to
the Federal Register no later than
December 16, 2021. This document
complies with the court’s deadline.
Distinct Population Segment Analysis
Regarding the petitioned DPSs in
Arizona and the Sonoran Desert
included in the 2007 petition, we
reaffirm our October 5, 2011, 12-month
finding (76 FR 61856). Specifically, we
considered a DPS for the Sonoran Desert
population of the pygmy-owl and
concluded that this population does not
meet the discreteness conditions of the
Service’s policy regarding the
Recognition of Distinct Vertebrate
Population Segments Under the
Endangered Species Act (61 FR 4722,
February 7, 1996). We also considered a
DPS for the Arizona population of the
pygmy-owl and concluded that, while
the discreteness criteria for the DPS
were met, we could not show that this
DPS was significant to the taxon as a
whole. For information regarding our
rationale, please see Analysis of
Potential Distinct Population Segments
in our previous 12-month finding (76 FR
61856, October 5, 2011, pp. 61885–
61889). We will accept comments
related to these DPS decisions during
the public comment period on this
proposed rule (see DATES, above).
Supporting Documents
A species status assessment (SSA)
team prepared an SSA report for the
cactus ferruginous pygmy-owl. The SSA
team was composed of Service
biologists, in consultation with other
species experts. The SSA report
represents a compilation of the best
scientific and commercial data available
concerning the status of the subspecies,
including the impacts of past, present,
and future factors (both negative and
beneficial) affecting the subspecies. In
accordance with our joint policy on peer
review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review of listing actions under the Act,
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we sought the expert opinions of five
appropriate specialists regarding the
SSA report. We received three
responses. We also sent the SSA report
to 13 partners, including Tribes and
scientists with expertise in land
management, pygmy-owl and raptor
ecology, and climate science, for review.
We received review from 11 partners,
including State and Federal agencies,
universities, and nonprofit
organizations.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy,
life history, and ecology of the cactus
ferruginous pygmy-owl is presented in
the SSA report. We summarize this
information here.
The cactus ferruginous pygmy-owl is
a diurnal, nonmigratory subspecies of
ferruginous pygmy-owl (Glaucidium
brasilianum) and is found from central
Arizona south to Michoaca´n, Mexico, in
the west and from south Texas to
Tamaulipas and Nuevo Leon, Mexico, in
the east. Pygmy-owls eat a variety of
prey including birds, insects, lizards,
and small mammals, with the relative
importance of prey type varying
throughout the year.
The pygmy-owl is a small bird,
approximately 17 centimeters (cm) (6.7
inches (in)) long. Generally, male
pygmy-owls average 58 grams (g) to 66 g
(2.0 to 2.3 ounces (oz)) and females
average 70 g to 75 g (2.4 to 2.6 oz). The
pygmy-owl is reddish brown overall,
with a cream-colored belly streaked
with reddish brown. The crown is
lightly streaked, and a pair of dark
brown or black spots outlined in white
occurs on the nape, suggesting eyes
(Oberholser 1974, p. 451). The species
lacks obvious ear tufts (Santillan et al.
2008, p. 154), and the eyes are yellow.
The tail is relatively long for an owl and
is reddish brown in color, with darker
brown bars. Males have pale bands
between the dark bars on the tail, while
females have darker reddish bands
between the dark bars.
Cactus ferruginous pygmy-owls are
secondary cavity nesters, nesting in
cavities of trees and columnar cacti,
with nesting substrate varying
throughout its range. Pygmy-owls can
breed in their first year and typically
mate for life, with both sexes breeding
annually. Clutch size can vary from two
to seven eggs with the female incubating
the eggs for 28 days (Johnsgard 1988, p.
162; Proudfoot and Johnson 2000, p.
11). Fledglings disperse from their natal
sites about 8 weeks after they fledge
(Flesch and Steidl 2007, p. 36). Pygmyowls live on average 3 to 5 years, but
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have been documented to live 7 to 9
years in the wild (Proudfoot 2009, pers.
comm.) and 10 years in captivity (AGFD
2009, pers. comm.).
Pygmy-owls are found in a variety of
vegetation communities, including
Sonoran desertscrub and semidesert
grasslands in Arizona and northern
Sonora, thornscrub and dry deciduous
forests in southern Sonora south to
Michoaca´n, Tamaulipan brushland in
northeastern Mexico, and live oak forest
in Texas. At a finer scale, the pygmyowl is a creature of edges found in semiopen areas of thorny scrub and
woodlands in association with giant
cacti and in scattered patches of
woodlands in open landscapes, such as
dry deciduous forests and riparian
communities along ephemeral,
intermittent, and perennial drainages
(Ko¨nig et al. 1999, p. 373). It is often
found at the edges of riparian and
xeroriparian drainages and even habitat
edges created by villages, towns, and
cities (Abbate et al. 1999, pp. 14–23;
Proudfoot and Johnson 2000, p. 5).
The taxonomy of Glaucidium is
complicated and has been the subject of
much discussion and investigation.
Following delisting of the pygmy-owl in
2006 (71 FR 19452; April 14, 2006), the
Service was petitioned to relist the
pygmy-owl (CBD and DOW 2007,
entire). The petitioners requested a
revised taxonomic consideration for the
pygmy-owl based on Proudfoot et al.
(2006a, p. 9; 2006b, p. 946) and Ko¨nig
et al. (1999, pp. 160, 370–373),
classifying the northern portion of
Glaucidium brasilianum’s range as an
entirely separate species, G. ridgwayi
and recognizing two subspecies of G.
ridgwayi: G. r. cactorum in western
Mexico and Arizona and G. r. ridgwayi
in eastern Mexico and Texas. Other
recent studies proposing or supporting
the change to G. ridgwayi for the
northern portion of G. brasilianum’s
range have been published in the past
20 years (Navarro-Sigu¨enza and
Peterson 2004, p. 5; Wink et al. 2008,
pp. 42–63; Enrı´quez et al. 2017, p. 15).
As we evaluated the cactus
ferruginous pygmy-owl’s current status,
we found that, although there is genetic
differentiation at the far ends of the
pygmy-owl’s distribution represented by
Arizona and Texas, there continues to
be uncertainty in the southern portion
of the range. This area represents the
boundary between the two proposed
subspecies, which raises the question of
whether there is adequate data to
support a change in species
classification and define the eastern and
western distributions as separate
subspecies. While future work and
studies may clarify and resolve these
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issues, we will continue to use the
currently accepted distribution of G.
brasilianum cactorum as described in
the 1957 American Ornithologists’
Union (now the American
Ornithological Society) checklist and
various other publications (Friedmann
et al. 1950, p. 145; Oberholser 1974, p.
452; Johnsgard 1988, p. 159; Millsap
and Johnson 1988, p. 137).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species is an
endangered species or a threatened
species. The Act defines an
‘‘endangered species’’ as a species that
is in danger of extinction throughout all
or a significant portion of its range, and
a ‘‘threatened species’’ as a species that
is likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of
its range. The Act requires that we
determine whether any species is an
endangered species or a threatened
species because of any of the following
factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
have a negative effect on individuals of
the species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects.
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
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that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
expected response by the species, and
the effects of the threats—in light of
those actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species, such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species now and in the
foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis. The term
‘‘foreseeable future’’ extends only so far
into the future as the Service can
reasonably determine that both the
future threats and the species’ responses
to those threats are likely. In other
words, the foreseeable future is the
period of time in which we can make
reliable predictions. ‘‘Reliable’’ does not
mean ‘‘certain’’; it means sufficient to
provide a reasonable degree of
confidence in the prediction. Thus, a
prediction is reliable if it is reasonable
to depend on it when making decisions.
It is not always possible or necessary
to define foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The SSA report documents the results
of our comprehensive biological review
of the best scientific and commercial
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data regarding the status of the cactus
ferruginous pygmy-owl, including an
assessment of the potential threats to the
subspecies. The SSA report does not
represent a decision by the Service on
whether the subspecies should be
proposed for listing as an endangered or
threatened species under the Act.
However, it does provide the scientific
basis that informs our regulatory
decisions, which involve the further
application of standards within the Act
and its implementing regulations and
policies. The following is a summary of
the key results and conclusions from the
SSA report; the full SSA report can be
found under Docket No. FWS–R2–ES–
2021–0098 at https://
www.regulations.gov and at https://
www.fws.gov/southwest/es/arizona/.
To assess the cactus ferruginous
pygmy-owl’s viability, we used the three
conservation biology principles of
resiliency, redundancy, and
representation (Shaffer and Stein 2000,
pp. 306–310). Briefly, resiliency
supports the ability of the species to
withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years),
redundancy supports the ability of the
species to withstand catastrophic events
(for example, droughts, large pollution
events), and representation supports the
ability of the species to adapt over time
to long-term changes in the environment
(for example, climate changes). In
general, the more resilient and
redundant a species is and the more
representation it has, the more likely it
is to sustain populations over time, even
under changing environmental
conditions. Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
The SSA process can be categorized
into three sequential stages. During the
first stage, we evaluate the individual
species’ life-history needs. The next
stage involves an assessment of the
historical and current condition of the
species’ demographics and habitat
characteristics, including an
explanation of how the species arrived
at its current condition. The final stage
of the SSA involves making predictions
about the species’ responses to positive
and negative environmental and
anthropogenic influences. Throughout
all of these stages, we use the best
available information to characterize
viability as the ability of a species to
sustain populations in the wild over
time. We use this information to inform
our regulatory decision.
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Summary of Biological Status and
Threats
In this discussion, we review the
biological condition of the cactus
ferruginous pygmy-owl and its
resources, and the threats that influence
the subspecies’ current and future
condition, in order to assess the
subspecies’ overall viability and the
risks to that viability. The overall
geographic range of the pygmy-owl is
very large (approximately 140,625
square miles [364,217 square
kilometers]) and covers two countries,
the United States and Mexico. To assist
in our analysis, we divided the overall
geographic range of the pygmy-owl into
five analysis units based upon
biological, vegetative, political, climatic,
geographical, and conservation
differences. The five analysis units are:
Arizona, northern Sonora, western
Mexico, Texas, and northeastern
Mexico. We analyzed each of these
analysis units individually and looked
at a combined outcome across the entire
range of the subspecies.
Threats
We reviewed the potential risk factors
that could be affecting the pygmy-owl
now and in the future including:
Climate change and climate condition
(Factor E), habitat loss and
fragmentation (Factor A), human
activities and disturbance (Factors B
and E), human-caused mortality (Factors
B and E), disease and predation (Factor
C), and small population size (Factor E).
In this proposed rule, we will discuss
only those factors in detail that could
meaningfully impact the status of the
subspecies. Those risks that are not
known to have effects on pygmy-owl
populations, such as disease, are not
discussed here but are evaluated in the
SSA report. The primary risk factors
affecting the current and future status of
the pygmy-owl are: (1) Habitat loss and
fragmentation (Factor A), and (2)
climate change and climate conditions
(Factor E). For a detailed description of
the threats analysis, please refer to the
Species Status Assessment report
(USFWS 2021, entire).
Habitat Loss and Fragmentation
Pygmy-owls require habitat elements,
such as mature woodlands, that include
appropriate cavities for nest sites,
adequate structural diversity and cover,
and a diverse prey base. Urbanization,
invasive species, and agricultural or
forest production are all leading to a
reduction in the extent of habitat and an
increase in habitat fragmentation
throughout the geographic range of the
subspecies.
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Urbanization
Urbanization causes permanent
impacts on the landscape that
potentially result in the loss and
alteration of pygmy-owl habitat.
Residential, commercial, and
infrastructure development replace and
fragment areas of native vegetation
resulting in the loss of available pygmyowl habitat and habitat connectivity
needed to support pygmy-owl dispersal
and demographic support (exchange of
individuals and rescue effect) of
population groups.
Urbanization can also have
detrimental effects on wildlife habitat
by increasing the channelization or
disruption of riverine corridors, the
proliferation of exotic species, and the
fragmentation of remaining patches of
natural vegetation into smaller and
smaller pieces that are unable to support
viable populations of native plants or
animals (Ewing et al. 2005, pp. 1–2;
Nabhan and Holdsworth 1998, p. 2).
Human-related mortality (e.g., shooting,
collisions, and predation by pets) also
increases as urbanization increases
(Banks 1979, pp. 1–2; Churcher and
Lawton 1987, p. 439). Development of
roadways and their contribution to
habitat loss and fragmentation is a
particularly widespread impact of
urbanization (Nickens 1991, p. 1). Data
from Arizona and Mexico indicate that
roadways and other open areas lacking
cover affect pygmy-owl dispersal
(Flesch and Steidl 2007, pp. 6–7; Abbate
et al. 1999, p. 54). Nest success and
juvenile survival were also lower at
pygmy-owl nest sites closer to large
roadways, suggesting that habitat
quality may be reduced in those areas
(Flesch and Steidl 2007, pp. 6–7).
From 2010 to 2020, population
growth rates increased in all Arizona
counties where the pygmy-owl occurs:
Pima (9.3 percent); Pinal (25.7 percent);
and Santa Cruz (13 percent) (OEO 2021,
unpaginated). Many cities and towns
within the historical distribution of the
pygmy-owl in Arizona experienced
substantial growth between April 2010
and July 2019: Casa Grande (20.7
percent); City of Eloy (17.8 percent);
City of Florence (7.7 percent); Town of
Marana (41.9 percent); Town of Oro
Valley (12.2 percent); and the Town of
Sahuarita (20.9 percent) (U.S. Census
Bureau 2021, unpaginated).Urban
expansion and human population
growth trends in Arizona are expected
to continue into the future. The
Maricopa-Pima-Pinal County areas of
Arizona are expected to grow by as
much as 132 percent between 2005 and
2050, creating rural-urban edge effects
across thousands of acres of pygmy-owl
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habitat (AECOM 2011, p. 13).
Additionally, a wide area from the
international border in Nogales, through
Tucson, Phoenix, and north into
Yavapai County (called the Sun
Corridor ‘‘Megapolitan’’ Area) is
projected to have 11,297,000 people by
2050, a 132 percent increase from 2005
(AECOM 2011, p. 13). If build-out
occurs as expected, it will encompass a
substantial portion of the current and
historical distribution of the pygmy-owl
in Arizona.
In Texas, the pygmy-owl occurred in
good numbers until approximately 90
percent of the mesquite-ebony
woodlands of the Rio Grande delta were
cleared in 1910–1950 (Oberholser 1974,
p. 452). Currently, most of the pygmyowl habitat occurs on private ranch
lands and therefore the threat of habitat
loss and fragmentation of the remaining
pygmy-owl habitat due to urbanization
is reduced. However, urbanization and
agriculture along the United StateMexico border are likely to continue to
isolate the Texas population of pygmyowls by restricting movements between
Texas and northeastern Mexico.
The United States-Mexico border
region has a distinct demographic
pattern of permanent and temporary
development related to warehouses,
exports, and other border-related
activities, and patterns of population
growth in this area of northern Mexico
has accelerated relative to other
Mexican States (Pineiro 2001, pp. 1–2).
The Sonoran border population has
been increasing faster than that State’s
average and faster than Arizona’s border
population; between 1990 and 2000, the
population in the Sonoran border
municipios increased by 33.4 percent,
compared to Sonora’s average (21.6
percent) and the average increase of
Arizona’s border counties (27.8
percent). Urbanization has increased
habitat conversion and fragmentation,
which, along with immigration,
population growth, and resource
consumption, were ranked as the
highest threats to the Sonoran Desert
Ecoregion (Nabhan and Holdsworth
1998, p. 1). This pattern focuses
development, and potential barriers or
impediments to pygmy-owl movements,
in a region that is important for
demographic support (immigration
events and gene flow) of pygmy-owl
population groups, including
movements such as dispersal. When
looking specifically at the United StatesMexico border region extending from
Texas to California, the human
population is approximately 15 million
inhabitants and this population is
expected to double by 2025 (HHS 2017,
p. 1).
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Significant human population
expansion and urbanization in the
Sierra Madre foothill corridor may
represent a long-term risk to pygmyowls in northeastern Mexico. From 2010
to 2015 the population in Tamaulipas
increased by 8 percent to 3,527,735 and
the population in Nuevo Leo´n increased
by 24 percent to 5,784,442 (DataMexico
2021, unpaginated). Such increasing
urbanization results in the permanent
removal of pygmy-owl habitat reducing
habitat availability and, more
significantly, increases habitat
fragmentation affecting the opportunity
for pygmy-owl movements within
northeastern Mexico and between
Mexico and Texas. Habitat removal in
northeastern Mexico is widespread and
nearly complete in northern Tamaulipas
(Hunter 1988, p. 8). Demographic
support (rescue effect) of pygmy-owl
population groups is threatened by
ongoing loss and fragmentation of
habitat in this area. Urbanization has the
potential to permanently alter the last
major landscape linkage between the
pygmy-owl population in Texas and
those in northeastern Mexico (Tewes
1993, pp. 28–29).
Human population growth in Sinaloa,
Nayarit, Colima, and Jalisco, Mexico are
relatively slow compared to Sonora and
northeastern Mexico. From 2010 to
2015, the population in Sinaloa grew at
a rate of 9.3 percent, Nayarit grew at a
rate of 13.9 percent, Jalisco grew at a
rate of 13.6 percent, and Colima grew at
a rate of 12.4 percent (DataMexico 2021,
unpaginated). These areas of Mexico are
not experiencing the very high growth
rates of Sonora and other border regions
of Mexico, but will likely have some
concurrent spread of urbanization. In
addition, most of the growth is taking
place in the large cities, and rather than
in the rural areas that likely support
pygmy-owl habitat (Brinkhoff 2016,
unpaginated). However, these Mexican
states have other threats to pygmy-owl
habitat occurring such as agricultural
development and deforestation that, in
combination with habitat lost to
urbanization, represent threats to the
continued viability of the pygmy-owl in
this area.
Invasive Species
The invasion of nonnative vegetation,
particularly nonnative grasses, has
altered the natural fire regime over the
Sonoran Desert ecoregion of the pygmyowl range (Esque and Schwalbe 2002, p.
165). In areas comprised entirely of
native species, ground vegetation
density is mediated by barren spaces
that do not allow fire to carry across the
landscape. However, in areas where
nonnative species have become
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established, the fine fuel load is
continuous, and fire is capable of
spreading quickly and efficiently (Esque
and Schwalbe 2002, p. 175). As a result,
fire has become a significant threat to
the native vegetation of the Sonoran
Desert.
Nonnative annual plants prevalent
within the Sonoran range of the pygmyowl include Bromus rubens and B.
tectorum (brome grasses), Schismus spp.
(Mediterranean grasses), and Sahara
mustard (Brassica tournefortii) (Esque
and Schwalbe 2002, p. 165; ASDM
2021, entire). However, the nonnative
species that is currently the greatest
threat to vegetation communities in
Arizona and northern Sonora, Mexico is
the perennial Cenchrus ciliaris
(buffelgrass), which is prevalent and
increasing throughout much of the
Sonoran range of the pygmy-owl
(Burquez and Quintana 1994, p. 23; Van
Devender and Dimmit 2006, p. 5).
Buffelgrass is not only fire-tolerant
(unlike native Sonoran Desert plant
species), but is actually fire-promoting
(Halverson and Guertin 2003, p. 13).
Invasion sets in motion a grass-fire cycle
where nonnative grass provides the fuel
necessary to initiate and promote fire.
Nonnative grasses recover more quickly
than native grass, tree, and cacti species
and cause a further susceptibility to fire
(D’Antonio and Vitousek 1992, p. 73;
Schmid and Rogers 1988, p. 442). While
a single fire in an area may or may not
produce long-term reductions in plant
cover or biomass, repeated wildfires in
a given area, due to the establishment of
nonnative grasses, are capable of
ecosystem type-conversion from native
desertscrub to nonnative annual
grassland. These repeated fires may
render the area unsuitable for pygmyowls and other native wildlife due to
the loss of trees and columnar cacti, and
reduced diversity of cover and prey
species (Brooks and Esque 2002, p. 336).
The distribution of buffelgrass has
been supported and promoted by
governments on both sides of the United
States-Mexico border as a resource to
increase range productivity and forage
production. A 2006 publication
estimates that 1.8 million ha (4.5
million ac) have been converted to
buffelgrass in Sonora, and that between
1990 and 2000, there was an 82 percent
increase in buffelgrass coverage
(Franklin et al. 2006, pp. 62, 66).
Following establishment, buffelgrass
fuels fires that destroy Sonoran
desertscrub, thornscrub, and, to a lesser
extent, tropical deciduous forest; the
disturbed areas are quickly converted to
open savannas composed entirely of
buffelgrass which removes pygmy-owl
nest substrates and generally renders
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areas unsuitable for future occupancy by
pygmy-owls. Buffelgrass is now fully
naturalized in most of Sonora, southern
Arizona, and some areas in central and
southern Baja California (BurquezMontijo et al. 2002, p. 131), and now
commonly spreads without human
cultivation (Arriaga et al. 2004, pp.
1509–1511; Perramond 2000, p. 131;
Burquez et al. 1998, p. 26).
Similar issues occur in Texas.
Buffelgrass is now one of the most
abundant nonnative grasses in South
Texas, and a prevalent invasive grass
within the range of the pygmy-owl.
During the 1950’s, federal and state land
management agencies promoted
buffelgrass as a forage grass in South
Texas (Smith 2010, p. 113). Buffelgrass
is very well adapted to the hot, semiarid climate of South Texas due to its
drought resistance and ability to
aggressively establish in heavily grazed
landscapes (Smith 2010, p. 113). Despite
increasing awareness of the ecological
damage caused by nonnative grasses,
buffelgrass is still planted in areas
affected by drought and overgrazing to
stabilize soils and to increase rangeland
productivity. Prescribed burning used
for brush control typically promotes
buffelgrass forage production in South
Texas (Hamilton and Scifres 1982, p.
11). Buffelgrass often creates
homogeneous monocultures by outcompeting native plants for essential
resources (Lyons et al. 2013, p. 8).
Furthermore, buffelgrass produces
phytotoxins in the soil that inhibit the
growth of neighboring native plants (Vo
2013, unpaginated). With regard to
pygmy-owl habitat, the loss of trees and
canopy cover and the creation of dense
ground cover resulting from buffelgrass
conversion reduces nest cavity
availability, cover for predator
avoidance and thermoregulation, and
prey availability. Overall, buffelgrass is
the dominant herbaceous cover on 10
million ha in southern Texas and
northeastern Mexico (Wied et al. 2020,
p. 47).
The impacts of buffelgrass
establishment and invasion are
substantial for the pygmy-owl in the
United States and Mexico because
conversion results in the loss of
important habitat features, particularly
columnar cacti and trees that provide
nest sites. Buffelgrass invasion and the
subsequent fires eliminate most
columnar cacti, trees, and shrubs of the
desert (Burquez-Montijo et al. 2002, p.
138). This elimination of trees, shrubs,
and columnar cacti from these areas is
a potential threat to the survival of the
pygmy-owl in the northern part of its
range, as these vegetation components
are necessary for roosting, nesting,
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protection from predators, and thermal
regulation. Invasion and conversion to
buffelgrass also negatively affect the
diversity and availability of prey species
in these areas (Franklin et al. 2006, p.
69; Avila-Jimenez 2004, p. 18; BurquezMontijo et al. 2002, pp. 130, 135).
Buffelgrass is adapted to dry, arid
conditions and does not grow in areas
with high rates of precipitation or high
humidity, above elevations of 1,265 m
(4,150 ft), or in areas with freezing
temperatures. Areas that support
pygmy-owls south of Sonora and
northern Sinaloa typically are wetter
and more humid, and the best available
information does not indicate that
buffelgrass is invading the southern
portion of the pygmy-owl’s range.
Surveys completed in Sonora and
Sinaloa in 2006 noted buffelgrass was
present in Sonora and northern Sinaloa,
but the more southerly locations were
noted as sparse or moderate (Van
Devender and Dimmitt 2006, p. 7). As
such, this nonnative species only affects
the northern parts of the pygmy-owl’s
range.
Agricultural Production and Wood
Harvesting
Agricultural development and wood
harvesting can result in substantial
impacts to the availability and
connectivity of pygmy-owl habitat.
Conversion of native vegetation
communities to agricultural fields or
pastures for grazing has occurred within
historical pygmy-owl habitat in both the
United States and Mexico, and not only
removes existing pygmy-owl habitat
elements, but also can affect the longterm ability of these areas to return to
native vegetation communities once
agricultural activities cease. Wood
harvesting has a direct effect on the
amount of available cover and nest sites
for pygmy-owls and is often associated
with agricultural development. Wood
harvesting also occurs to supply
firewood and charcoal, and to provide
material for cultural and decorative
wood carvings.
In Arizona, although new agricultural
development is limited, the effects to
historical habitat are still evident. Many
areas that historically supported mesoand xeri-riparian habitat have been
converted to agricultural lands and
associated groundwater pumping has
affected the hydrology of these valleys
(Jackson and Comus 1999, pp. 233, 249).
These riparian areas are important
pygmy-owl habitat, especially within
drier upland vegetation communities
like Sonoran desertscrub and semidesert grasslands.
Habitat fragmentation as a result of
agricultural development has also
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occurred within Texas. Brush clearing,
pesticide use, and irrigation practices
associated with agriculture have had
detrimental effects on the Lower Rio
Grande Valley (Jahrsdoerfer and Leslie
1988, p. 1). From the 1920’s until the
early 1970’s, over 90 percent of pygmyowl habitat in the Lower Rio Grande
Valley of Texas was cleared for
agricultural and urban expansion
(Oberholser 1974, p. 452). The Norias
Division of the King Ranch in southern
Texas has been isolated by agricultural
expansion, which has restricted pygmyowl dispersal (Oberholser 1974). This
has resulted in loss of pygmy-owl
habitat connectivity between pygmyowl population groups in Texas and in
Mexico. Historically, agriculture in
Sonora, Mexico, was restricted to small
areas with shallow water tables, but it
had, nonetheless, seriously affected
riparian areas by the end of the
nineteenth century. For example, in the
Rio Mayo and Rio Yaqui coastal plains,
nearly one million ha (2.5 million ac) of
mesquite, cottonwood, and willow
riparian forests and coastal thornscrub
disappeared after dams upriver started
to operate (Burquez and Martinez-Yrizar
2007, p. 543).
Other Mexican states within the range
of the pygmy-owl show similar potential
for habitat loss. For example, in
Tamaulipas, area under irrigation
increased from 174,400 to 494,472 ha
(431,000 to 1.22 million ac) between
1998 and 2004, with an area of 668,872
ha (1.65 million ac) equipped for
irrigation. However, agricultural
development in the States of Colima,
Jalisco, Nayarit, and Nuevo Leon had
substantial decreases in the amount of
irrigated lands over the same period
(FAO 2007, unpaginated). Although
land continues to be converted to
agriculture within the geographic range
of the pygmy-owl, we do not know if the
areas being converted currently support
pygmy-owl habitat. Continuing
destruction of pygmy-owl habitat for
agricultural production is not occurring
with the same intensity throughout the
range of the pygmy-owl, and the area in
agricultural production may be
declining in some parts of its southern
range.
Wood harvesting is also a potential
threat to pygmy-owl habitat. Ironwood
(Olneya tesota) and mesquite (Prosopis
spp.) are harvested throughout the
Sonoran Desert for use as charcoal,
fuelwood, and carving (Burquez and
Martinez Yrizar 2007, p. 545). For
instance, by 1994, 202,000 ha (500,000
ac) of mesquite had been cleared in
northern Mexico to meet the growing
demand for mesquite charcoal (Haller
1994, p. 1). Unfortunately, woodcutters
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and charcoal makers utilize large,
mature mesquite and ironwood trees
growing in riparian areas (Taylor 2006,
p. 12), which is the tree class that is of
most value as pygmy-owl habitat. Loss
of leguminous trees results in long-term
effects to the soil as they add organic
matter, fix nitrogen, and add sulfur and
soluble salts, affecting overall habitat
quality and quantity (Rodriguez Franco
and Aguirre 1996, p. 6–47). Ironwood
and mesquite trees are important nurse
species for saguaros, the primary nesting
substrate for pygmy-owls in the
northern portion of their range (Burquez
and Quintana 1994, p. 11). Declining
tree populations in the Sonoran Desert
as a result of commercial uses and land
conversion threatens other plant species
and may alter the structure and
composition of the vertebrate and
invertebrate communities as well
(Bestelmeyer and Schooley 1999, p.
644). This has implications for pygmyowl prey availability because pygmyowls rely on a seasonal diversity of
vertebrate and invertebrate prey species;
loss of tree structure and diversity
reduces prey diversity and availability.
Once common in areas of the Rio
Grande delta, significant habitat loss
and fragmentation due to woodcutting
have now caused the pygmy-owl to be
a rare occurrence in this area of Texas.
Oberholser (1974, p. 452) concluded
that agricultural expansion and
subsequent loss of native woodland and
thornscrub habitat, begun in the 1920’s,
preceded the rapid demise of pygmyowl populations in the Lower Rio
Grande Valley of southern Texas.
Because much of the suitable pygmyowl habitat in Texas occurs on private
ranches, habitat areas are subject to
potential impacts that are associated
with ongoing ranch activities such as
grazing, herd management, fencing,
pasture improvements, construction of
cattle pens and waters, road
construction, and development of
hunting facilities. Brush clearing, in
particular, has been identified as a
potential factor in present and future
declines in the pygmy-owl population
in Texas (Oberholser 1974, p. 452).
However, relatively speaking, the
current loss of habitat is much reduced
in comparison to the historical loss of
habitat in Texas. Conversely, ranch
practices that enhance or increase
pygmy-owl habitat to support
ecotourism can contribute to
conservation of the pygmy-owl in Texas
(Wauer et al. 1993, p. 1076). The best
available information does not indicate
that current ranching practices are
significantly affecting pygmy-owl
habitat in Texas.
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Habitat fragmentation in northeastern
Mexico is extensive, with only about
two percent of the ecoregion remaining
intact, and no habitat blocks larger than
250 square km (96.5 square mi), and no
significant protected areas (Cook et al.
2000, p. 4). Fire is often used to clear
woodlands for agriculture in this area of
Mexico, and many of these fires are not
adequately controlled. There may be
fire-extensive related effects to native
plant communities (Cook et al. 2000, p.
4); however, there is no available
information of how much area may be
affected by this activity.
Areas of dry subtropical forests,
important habitat for pygmy-owls in
southwestern Mexico, have been used
by humans through time for settlement
and various other activities (Trejo and
Dirzo 2000, p. 133). The long-term
impact of this settlement has converted
these dry subtropical forests into
shrublands and savannas lacking large
trees, columnar cacti, and cover and
prey diversity that are important pygmyowl habitat elements. In Mexico, dry
tropical forest is the major type of
tropical vegetation in the country,
covering over 60 percent of the total
area of tropical vegetation. About 8
percent (approximately 160,000 square
km (61,776 square mi)) of this forest
remained intact by the late 1970s, and
an assessment made at the beginning of
the present decade suggested that 30
percent of these tropical forests have
been altered and converted to
agricultural lands and cattle grasslands
(Trejo and Drizo 2000, p. 134). However,
the best available information indicates
that there are still expanses of dry
tropical forest along the Pacific coast in
Mexico, including some areas below
1,200 m (4,000 ft) where pygmy-owls
are found.
Summary of Habitat Loss and
Fragmentation
In summary, pygmy-owls require
habitat elements such as mature
woodlands that include appropriate
cavities for nest sites, adequate
structural diversity and cover, and a
diverse prey base. These habitat
elements need to be available across the
geographic range of the pygmy-owl and
spatially arranged to allow connectivity
between habitat patches. Pygmy-owl
habitat loss and fragmentation are
affecting pygmy-owl viability
throughout its range. These threats vary
in scope and intensity throughout the
pygmy-owl’s geographic range and
specific threats are a more significant
issue in certain parts of the range than
in others. For example, in Arizona and
Northern Sonoran, pygmy-owl habitat
loss and fragmentation resulting from
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urbanization, changing fire regimes due
to the invasion of buffelgrass, and
agricultural development and
woodcutting are significant threats that
have negatively affected pygmy-owl
habitat. In Texas, historical loss of
habitat has reduced the pygmy-owl
range, but current impacts are reduced
from historical levels in their magnitude
and severity. However, in Texas and
other areas of the pygmy-owl’s range,
these past impacts continue to affect the
current extent of available pygmy-owl
habitat, because of the extended time it
takes for these lands to recover.
Therefore, even if habitat destruction
ceases, the negative effects of past land
use are expected to continue in many of
these areas into the future.
For the remainder of the pygmy-owl’s
range and habitat in Mexico
(northeastern Mexico and south of
Sonora), data available for our analysis
were limited. The rate of growth in
these southern Mexican States appears
to be lower than in Sonora and the
Arizona border region. Historical loss of
pygmy-owl habitat in northeastern
Mexico has occurred, but the extent to
which significant habitat destruction is
currently taking place is not available.
In addition, pygmy-owls are still
considered common in the southern
part of their range (Enriquez-Rocha et al.
1993, p. 154; Cartron et al. 2000, p. 5;
GBIF 2020).
This information indicates that the
impacts to pygmy-owl habitat discussed
herein may be having different levels of
effects on the populations of pygmyowls throughout their range, and habitat
effects may not have the impacts to
pygmy-owl population groups in the
southern portion of the pygmy-owl’s
range due to increased pygmy-owl
numbers. Nonetheless, Enrı´quez and
Vazquez-Perez (2017, p. 546) indicate
that during the last 50 years, Mexico has
seen drastic changes in land uses due to
rapid urbanization and
industrialization, which has been poorly
planned. The result has been impacts to
the natural environment, including the
degradation and loss of biological
diversity in Mexico. There has been
limited work in Mexico, however, to
understand what the direct impacts of
these threats are on owl population
losses and changes in distribution and
abundance of subspecies in long term
(Enrı´quez and Vazquez-Perez 2017, p.
546).
Climate Change and Climate Conditions
Climate change projections within the
geographic range of the pygmy-owl
show that increasing temperatures,
decreasing precipitation, and increase
intensity of weather events are likely
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(Karmalkar et al. 2011, entire; Bagne and
Finch 2012, entire; Coe et al. 2012,
entire; and Jiang and Yang 2012, entire).
Climate influences pygmy-owl habitat
conditions and availability through the
loss of vegetation cover, reduced prey
availability, increased predation,
reduced nest site availability, and
vegetation community change. The
majority of the current range of the
pygmy-owl occurs in tropical or
subtropical vegetation communities,
which may be reduced in coverage if
climate change results in hotter, more
arid conditions. Additionally, models
predict that the distribution of suitable
habitat for saguaros, the primary pygmyowl nesting substrate within the
Sonoran Desert ecoregion, will
substantially decrease over the next 50
years under a moderate climate change
scenario (Weiss and Overpeck 2005, p.
2074; Thomas et al. 2012, p. 43).
Climate change scenarios project that
drought will occur more frequently and
increase in severity, with a decrease in
the frequency and increase in severity of
precipitation events (Seager et al. 2007,
p. 9; Cook et al. 2015, p. 6; Pascale et
al. 2017, p. 806; Williams et al. 2020, p.
317). Drought and changes to the timing
and intensity of precipitation events
may reduce available cover and prey for
pygmy-owls adjacent to riparian areas
through scouring flood events and
reduced moisture retention. Although
the extent to which changing climatic
patterns will affect the pygmy-owl is
better understood following the past
decade of observations in the field, there
remains uncertainty with regard to the
overall extent and timing of impacts.
Synergistic interactions are likely to
occur between the effects of climate
change and habitat fragmentation and
loss. Climate change projections
indicate that conditions will likely favor
increased occurrence and distribution of
nonnative, invasive species and
alteration of historical fire regimes.
Climate change may also affect the
viability of the pygmy-owl through
precipitation-driven changes in plant
and insect biomass, which in turn
influence abundance of lizards, small
mammals, and birds (Jones 1981, p. 111;
Flesch 2008, p. 5; Flesch et al. 2015, p.
26). Decreased precipitation generally
reduces plant cover and insect
productivity, which in turn reduce the
abundance and availability of pygmyowl prey species. Similarly, increased
temperatures reduce pygmy-owl prey
activity due to increased energetic
demands of thermoregulation and a
decreased availability of prey and cover
(Flesch et al. 2015, p. 26). These indirect
effects on prey availability and direct
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effects on prey activity affect nestling
growth, development, and survival.
When decreased precipitation affects
food supply and increased temperature
affects prey activity, reduced pygmyowl productivity is likely to result in
reduced pygmy-owl resiliency (Flesch et
al. 2015, p. 26). Climate change can also
influence natural events, such as
hurricanes and tropical storms, which
can modify and fragment habitats,
primarily through loss of woody cover.
Historical and ongoing threats to the
pygmy-owl from habitat loss and
fragmentation as well as from climate
change and climate conditions, have
shaped the current habitat and
population conditions of the subspecies
throughout its range.
Current Condition
To assess resiliency, we evaluated six
components that broadly related to the
subspecies’ population demography or
physical environment and for which we
had data sufficient to conduct the
analysis. We assessed each analysis
unit’s physical environment by
examining three components
determined to have the most influence
on the subspecies: Habitat intactness,
prey availability, and vegetation health
and cover. We also assessed each
analysis unit’s demography through
abundance, occupancy, and evidence of
reproduction. We established
parameters for each component by
evaluating the range of existing data and
separating those data into categories
based on our understanding of the
subspecies’ demographics and habitat.
Using the demographic and habitat
parameters, we then categorized the
overall condition of each analysis unit.
We provide a summary of each of the
six factors below and describe them in
detail in the SSA report (Service 2021,
entire).
Demographic Factors
Abundance: Larger populations have
a lower risk of extinction than smaller
populations (Pimm et al. 1988, pp. 773–
775; Trombulak et al. 2004, p. 1183). In
contrast, small populations are less
resilient and more vulnerable to the
effects of demographic, environmental,
and genetic stochasticity, and have a
higher risk of extinction than larger
populations (Trombulak et al. 2004, p.
1183). Small populations may
experience increased inbreeding, loss of
genetic variation, and ultimately a
decreased potential to adapt to
environmental change (Trombulak et al.
2004, p. 1183; Harmon and Braude
2010, p. 125; Benson et al. 2016, pp. 1–
2). The abundance of pygmy-owls
within each analysis unit must be high
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enough to support persistence of
pygmy-owl population groups (multiple
breeding pairs of pygmy-owls within
relatively discrete geographic areas)
within the analysis unit. This is
accomplished by having adequate
patches of habitat to support multiple
nesting pairs of pygmy-owls and their
offspring, have adequate habitat
connectivity to support establishment of
additional territories by dispersing
young, and supply floaters (unpaired
individuals of breeding age) within each
pygmy-owl population group to offset
loss of breeding adults and to provide
potential mates for dispersing juveniles.
Occupancy: Sufficiently resilient
pygmy-owl populations must occupy
large enough areas such that stochastic
events and environmental fluctuations
that affect individual pygmy-owls, or
population group of pygmy-owls, do not
eliminate the entire population. Pygmyowls are patchily distributed across the
landscape in population groups of
nesting owls. Each of these population
groups must be occupied by large
enough numbers of pygmy-owls to
enable the population group to persist
on the landscape over time. Enough
occupied population groups of pygmyowls must also exist on the landscape,
with interconnected habitat supporting
movement among population groups, so
that each population group can receive
or exchange individuals with any given
adjacent population group.
Pygmy-owl occupancy is an indicator
of habitat conditions as well as
demographic factors, such as
reproduction and survival. Habitats that
support large numbers of pygmy-owls
are better able to provide floaters and
available mates to dispersing pygmyowls from adjacent populations. These
floaters are able to serve as replacement
breeders if either or both members of an
existing breeding pair are lost.
Observations indicate that if a site is
occupied by a breeding pair, they will
breed. Survival of adults also affects
occupancy, as some occupied sites will
be abandoned if one of the adult
breeders perishes. These sites can be
reoccupied in the future when floaters
or dispersing birds move into the area.
Evidence of reproduction: Resilient
pygmy-owl populations must also
reproduce and produce a sufficient
number of young such that recruitment
equals or exceeds mortality. Current
population size and abundance reflects
previous influences on the population
and habitat, while reproduction and
recruitment reflect population trends
that may be stable, increasing, or
decreasing in the future. Adequately
resilient populations of the pygmy-owl
must have sufficient numbers of
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individuals to replace members of
breeding pairs that have been lost and
to support persistent population groups
of nesting pygmy-owls through
dispersal. However, the necessary
reproductive rate needed for a selfsustaining population is unknown.
Additionally, key demographic
parameters of pygmy-owl populations
(e.g., survival, life expectancy, lifespan,
productivity, etc.) are unknown
throughout most of the geographic
range. Due to the lack of information on
demographic parameters of
reproduction, recruitment, and survival,
we broadly considered evidence of
reproduction to include any evidence of
reproduction (e.g., active nests, presence
of eggs or nestlings, fledglings, etc.), as
well as persistence of occupied
territories and population groups in an
area over a sufficient amount of time to
indicate evidence of reproduction.
Thus, evidence of reproduction on a
consistent basis over time likely
indicates a sufficiently resilient
population.
Habitat intactness: Adequately
resilient pygmy-owl populations need
intact habitat that is large enough to
support year-round occupancy, as well
as connectivity between habitat patches
to enable dispersal. Pygmy-owls are
patchily distributed across much of
their geographic range. These pygmyowl population groups are dependent
on interchange of individuals in order to
maintain adequate numbers and genetic
diversity on the landscape. Habitat
connectivity is crucial to maintaining
pathways for the interchange of
individuals among pygmy-owl
population groups.
Prey availability: Adequate prey
availability is a key component for
maintaining resiliency in pygmy-owl
populations. Year-round prey
availability is essential throughout the
range of the pygmy-owl, with portions
of the geographic range characterized by
seasonal variability in available prey
resources. The abundance of many of
these prey species is influenced by
annual and seasonal precipitation
through increases and decreases in
vegetation cover and diversity, which
also influences insect abundance and
availability. Sufficiently resilient
pygmy-owl populations require
adequate precipitation to support yearround prey availability. This includes
appropriately timed precipitation to
support seasonally available prey such
as lizard, insects, and small mammals.
Vegetation cover: Sufficiently resilient
pygmy-owl populations require
adequate vegetation to provide cover for
predator avoidance, thermoregulation,
hunting, and nest cavities. Of primary
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importance for cover is the presence of
woody vegetation canopy. Maintenance
of the health and vigor of this woody
cover is a key component to maintaining
resiliency of pygmy-owl populations.
Summary of Current Condition of the
Subspecies
Currently, the cactus ferruginous
pygmy-owl occurs from southern
Arizona, south to Michoaca´n in the
western portion of its range, and from
southern Texas to Tamaulipas and
Nuevo Leon in the eastern portion of its
range. For our analysis, we divided the
pygmy-owl’s overall range into five
analysis units: Arizona, northern
Sonora, western Mexico, Texas, and
northeastern Mexico (see Figure 1,
below). The primary factors currently
affecting the condition of cactus
ferruginous pygmy-owl populations
include climate conditions, and habitat
fragmentation and loss.
Resiliency
The Arizona analysis unit currently
has the lowest pygmy-owl abundance of
all analysis units, which is estimated to
be in the low hundreds. Habitat
fragmentation and loss from
urbanization and increases in invasive
species such as buffelgrass, have
reduced the availability and
connectivity of habitat in this analysis
unit. Additionally, climate conditions
have reduced prey availability and
vegetative cover through increased
temperatures and drought. These factors
result in a reduced capacity for this
analysis unit to withstand stochastic
events and result in a low resiliency
currently.
The northern Sonora analysis unit has
an estimated pygmy-owl abundance in
the high hundreds. However, this
analysis unit is affected by habitat
fragmentation from urbanization,
agricultural development, and
associated infrastructure. These
stressors increase water use and, in
conjunction with climate conditions,
result in a reduction in the quality and
availability of pygmy-owl habitat. Due
to moderate owl abundance and some
decrease in habitat availability and
connectivity, the northern Sonora
analysis unit has a moderate level of
population resiliency.
The western Mexico analysis unit is
estimated to have tens of thousands of
pygmy-owls. This analysis unit has
some habitat fragmentation from
urbanization, agricultural development,
and deforestation of the tropical
deciduous forests. Overall, the western
Mexico analysis unit has high
population resiliency due to high
abundance of pygmy-owls and healthy
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vegetation cover, likely as a result of
high levels of precipitation in the
region.
The Texas analysis unit has an
estimated pygmy-owl abundance in the
high hundreds. Land ownership within
this analysis unit has resulted in habitat
fragmentation and, due to agricultural
development and wood harvesting
within the Rio Grande Valley, this
analysis unit is somewhat genetically
isolated from the rest of the geographic
range of the subspecies. Due to
moderate pygmy-owl abundance,
fragmentation of habitat, and some
genetic isolation, the Texas analysis unit
has a moderate level of population
resiliency.
The northeast Mexico analysis unit is
estimated to have tens of thousands of
pygmy-owls. However, this unit has
high levels of habitat fragmentation due
to urbanization and agricultural
development. Overall, the northeast
Mexico analysis unit has a moderate
level of population resiliency with some
capacity to withstand stochastic events.
Rangewide, current condition of the
pygmy-owl populations indicate that
three analysis units are maintaining a
moderate level of population resiliency,
one analysis has low resiliency, and one
analysis unit has high resiliency.
Representation
Resiliency, and the factors that drive
resiliency, also contribute to the pygmyowl’s representation on the landscape.
Pygmy-owls occupy a diversity of
habitat types throughout the geographic
range of the subspecies and maintain
substantial genetic diversity. The
subspecies’ adaptive potential
(representation) is currently high due to
genetic and ecological variability across
the range. There is substantial genetic
diversity across the range (Proudfoot et
al. 2006a, entire; 2006b, entire) due to
isolation-by-distance and geographic
barriers. Additionally, across the range,
the pygmy-owl occupies a diverse range
of ecological settings as a result of
geographic gradients of vegetation,
climate, elevation, topography, and
other landscape elements. Such
ecological diversity could help the
pygmy-owl adapt to and survive future
environmental changes, such as
warming temperatures or decreased
precipitation from climate change.
Redundancy
We assessed the number and
distribution of populations across the
pygmy-owl’s geographic range as a
measure of its redundancy. While the
numbers and densities of pygmy-owls
are lower in some analysis units, these
portions of the range still contribute in
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a meaningful way to the overall pygmyowl population. Each analysis unit
within the geographic range of the
subspecies maintains a network of
population groups that are connected
both within and between analysis units.
These population groups have the
potential to recolonize areas where
other population groups are lost to
catastrophic events. All analysis units
contribute to the total rangewide
population, and population groups
within each analysis unit provide
population support for that analysis unit
and adjacent portions of the range. If an
analysis unit is self-sustaining, it
provides redundancy across the range,
and may provide emigrants to support
adjacent analysis units. Research and
monitoring have documented exchange
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of individual cactus ferruginous pygmyowls among population groups within
the Arizona, northern Sonora, and Texas
analysis units, and between the Arizona
and northern Sonora analysis units
(Abbate et al. 2000, p. 30; Flesch and
Steidl 2007, p. 37; Proudfoot et al. 2020,
unpaginated; AGFD unpublished data).
Habitat fragmentation and reduced
vegetation health as a result of ongoing
drought have resulted in the extirpation
of population groups in Arizona and
Texas, but redundancy was exhibited in
the northern Sonora analysis unit when
drought conditions eased and
historically occupied areas were
reoccupied (Flesch et al. 2017, p. 12).
Despite existing habitat fragmentation,
research and monitoring have
documented that exchange of individual
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pygmy-owls between population groups
and between some analysis units is still
occurring. Habitat types used by pygmyowls vary across the range, with some
vegetation types being restricted to
certain portions of the geographic range.
It is important to maintain pygmy-owl
populations throughout the range to
provide redundancy to adjacent
populations in similar habitat
conditions. Due to the broad geographic
distribution and network of populations
groups that are connected within and
between some analysis units throughout
most of its range, the pygmy-owl has
some ability to recolonize following
catastrophic events and is considered to
have adequate redundancy.
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Gulf
of
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Pacific Ocean
Legend
[S:SJ Arizona
~
Texas
Northeastern Mexico
N
~ Northern Sonora.
A
[ [ ] ] Western Mexico
•
., lntema.tiona.l Boundary
0 25 50
Slate Boundary
100
150
200
■ ■
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Future Scenarios
In our SSA report, we defined
viability as the ability of a species to
sustain populations in the wild over
time. To help address uncertainty
associated with the degree and extent of
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potential future stressors and their
impacts on species’ needs, the concepts
of resiliency, redundancy, and
representation were assessed using three
plausible future scenarios. We
developed these scenarios by
identifying information on the following
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primary factors anticipated to affect the
cactus ferruginous pygmy-owl in the
future: Climate change, habitat loss and
fragmentation, and conservation
activity. The three scenarios capture the
range of uncertainty in the changing
landscape and how the pygmy-owl
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Figure 1. Cactus ferruginous pygmy-owl's range in the United States and Mexico,
including the five analysis units used in the SSA.
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would respond to the changing
conditions. We used the best available
data and models to project out 30 years
into the future (i.e., 2050).
We chose this timeframe based on the
subspecies’ life span and observed
cycles in population abundance, as well
as the time period where we could
reasonably project certain land use
changes and urbanization patterns
relevant to the pygmy-owl and its
habitat. The majority of the projections
of urbanization and population growth
within the geographic range of the
pygmy-owl extend to 2050. Since
urbanization and development are some
of the primary drivers of habitat loss
and fragmentation, we extended our
analysis only as far as we could
reasonably project these changes and
the species response to those changes.
Additionally, the average lifespan of a
pygmy-owl is 3 to 5 years. Thus, over
a 30-year timeframe, we would expect
eight to ten generations of pygmy-owls
to be produced which should be
adequate to assess the effects of both
threats and conservation actions.
Because the primary avenue through
which pygmy-owls move across the
landscape is through the dispersal of
juveniles, it can take multiple
generations to provide adequate
exchange of individuals to elicit
detectable change at the population
group and analysis unit scale. Including
multiple generations of pygmy-owls also
allows adequate time to account for lags
in demographic factors resulting from
changes in environmental conditions.
Therefore, this number of generations is
sufficient to assess the effective levels of
resiliency, redundancy and
representation. Monitoring of pygmyowl occupancy and productivity also
indicates that, at least in Arizona and
northern Sonora, 30 years was an
adequate time period to document
abundance cycles driven by climate
conditions. Monitoring in both Arizona
and northern Sonora from the mid1990s to present showed a period of
decline in occupancy and productivity,
primarily due to drought, followed by
an increase in productivity and
occupancy during years of better
precipitation such that abundance and
occupancy recovered to nearly the
original levels (Flesch et al. 2017, p. 12;
Service 2021, entire). For more
information on the models and their
projections, please see the SSA report
(Service 2021, entire).
Under Scenario 1 (continuation of
current trends), we projected there
would be no significant changes to the
rate of habitat loss and fragmentation
within the subspecies’ range. For this
scenario, we considered that climate
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change would track Representative
Concentration Pathway (RCP) 4.5,
which is one of four alternative
trajectories for carbon dioxide emissions
set forth by the International Panel on
Climate Change. Specifically, RCP4.5 is
an intermediate scenario where carbon
dioxide emissions continue to increase
through the mid-21st century, but then
decline. This scenario would result in
atmospheric carbon dioxide levels
between 580 and 720 parts per million
(ppm) between 2050 and 2100 and
would represent an approximately 2.5
°C increase in global mean temperature
relative to the period 1861–1880 (IPCC
2014, p. 9). We also considered that
conservation efforts that are currently
underway, such as captive rearing,
would continue to be limited in their
efficacy, due to limited resources and
the continued efforts to identify
appropriate and effective methodologies
and protocols. Additionally, climate
change will continue to affect the
suitability of conditions at release sites
for captive-reared pygmy-owls,
potentially limiting the effectiveness of
pygmy-owl releases.
Under these conditions, we do not
anticipate that any of the factors used to
evaluate resiliency would improve and,
in fact, vegetation intactness would be
reduced due to continued development.
Northeastern Mexico is projected to
maintain its current level of high
pygmy-owl abundance because
significant changes to habitat conditions
are not expected. Because of this, the
northeastern Mexico analysis unit is
expected to maintain a moderate level of
population resiliency under this
scenario. Conditions in the Arizona
analysis unit would continue to decline
due to continued habitat fragmentation
and climate change, and resiliency
would remain low. Resiliency in the
remaining three analysis units, northern
Sonora, western Mexico, and Texas,
would decline due to continued loss of
cactus ferruginous pygmy-owl habitat,
reduced habitat intactness, and a
reduction in cover and prey availability
for cactus ferruginous pygmy-owls.
Overall, current levels of population
redundancy and representation would
be maintained rangewide because all
analysis units would remain occupied;
however, representation within each
analysis unit would likely decline at the
population-group scale.
Under Scenario 2 (worsening or
increased effects scenario), we projected
increased rates of habitat loss and
fragmentation leading to a decline in
pygmy-owl habitat conditions. For this
scenario, we considered that climate
change would track RCP8.5, which is
the highest greenhouse gas emission
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scenario. Under this scenario,
atmospheric carbon dioxide
concentrations are projected to exceed
1,000 ppm between 2050 and 2100 and
would represent a 4.5 °C increase in
global mean temperature (IPCC 2014, p.
9). We also considered that conservation
efforts that are currently underway
would not be effective or would not be
implemented.
Increased habitat loss and
fragmentation would result in the
greatest effect to overall resiliency
through a reduction in abundance and
occupancy of pygmy-owls. Increased
development and urbanization would
result in a permanent loss of habitat.
Indirect effects to vegetation and prey
availability as a result of climate change
would also be expected. Due to
increased habitat fragmentation, such as
agricultural development, as well as a
reduction in vegetation health from
drought, resiliency in the western
Mexico analysis unit is projected to
decline. Under this scenario, climate
change and increased habitat
fragmentation from urbanization and
agricultural development lead to the
loss of some population groups within
the Texas, Arizona, and northern Sonora
analysis units. The resultant decline
would decrease representation and
redundancy within these analysis units.
In particular, the Texas and Arizona
analysis units would become more
vulnerable to extirpation because of low
pygmy-owl abundance and occupancy
driven by reduced habitat quality as a
result of drought and high levels of
habitat fragmentation from ongoing
urbanization and agricultural
development. Genetic representation
would be reduced through the loss of
population groups or analysis units and
the subsequent reduction of gene flow.
Overall, there would be a reduction in
resiliency, representation, and
redundancy within most analysis units
and the likelihood of maintaining longterm viability would be considerably
reduced.
Under Scenario 3 (improving or
reduced effects scenario), we project
that habitat loss and fragmentation
would continue, but at a reduced rate.
For this scenario, we considered that
climate change would track RCP4.5, and
conservation efforts that are currently
underway would be effective. We did
not include other planned conservation
efforts in this scenario because we are
not aware of any that would
significantly influence the viability of
the species.
Despite effective conservation actions
in portions of the range, the viability of
pygmy-owl populations would continue
to decline within all five analysis units
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due to the ongoing effects of habitat
loss, fragmentation, and climate change.
Resiliency would remain low in the
Arizona analysis unit and would
decline in both the northern Sonora and
western Mexico analysis units due to a
reduction in habitat quality as a result
of climate change. Pygmy-owl habitat
fragmentation from urbanization,
deforestation, and agricultural
development are expected to continue
under this scenario, though at a slower
rate. Resiliency would remain in
moderate condition for the Texas and
northeastern Mexico analysis units.
Although habitat conditions are
expected to continue to decline due to
drought and climate change, we do not
expect a large decline in pygmy-owl
occupancy and abundance in Texas and
northeastern Mexico. Under this
scenario, each analysis unit remains
occupied and contributes to the
representation and redundancy across
the range of the pygmy-owl. However,
within each analysis unit, threats
continue, albeit at a reduced rate, and
the resiliency of population groups
would decline in three of the five
analysis units. Thus, within analysis
units, representation and redundancy is
likely to decrease at the populationgroup scale.
factors affecting its viability, here we
will discuss regulatory mechanisms and
conservation actions that potentially
have or will influence the current and
future viability of the cactus ferruginous
pygmy-owl.
Cumulative Effects
We note that, by using the SSA
framework to guide our analysis of the
scientific information documented in
the SSA report, we have not only
analyzed individual effects on the
subspecies, but we have also analyzed
their potential cumulative effects. We
incorporate the cumulative effects into
our SSA analysis when we characterize
the current and future condition of the
subspecies. To assess the current and
future condition of the subspecies, we
undertake an iterative analysis that
encompasses and incorporates the
threats individually and then
accumulates and evaluates the effects of
all the factors that may be influencing
the subspecies, including threats and
conservation efforts. Because the SSA
framework considers not just the
presence of the factors, but to what
degree they collectively influence risk to
the entire subspecies, our assessment
integrates the cumulative effects of the
factors and replaces a standalone
cumulative effects analysis.
Federal Protections
Although the pygmy-owl in Arizona
is considered nonmigratory, it is
included on the list of birds protected
under the Migratory Bird Treaty Act
(MBTA) (16 U.S.C. 703–712). The
MBTA prohibits ‘‘take’’ of any migratory
bird. However, unlike the Endangered
Species Act, there are no provisions in
the MBTA preventing habitat
destruction unless direct mortality or
destruction of an active nest occurs.
Approximately 31 percent of the pygmyowl’s historical geographic range in the
United States is federally owned, with
Federally-owned lands making up
approximately 40 percent of pygmy-owl
habitat in Arizona. However, a
substantial extent of the known
currently occupied habitats occur on
State Trust lands in Arizona and on
private lands in Texas. Other Federal
regulations and policies such as the
Clean Water Act (33 U.S.C. 1251 et seq.),
the military’s integrated natural
resources management plans (INRMPs,
such as the one for the Barry M.
Goldwater Range) (Uken 2008, pers.
comm.), and National Park Service
policy provide varying levels of
protection, but they have not been
effective in protecting the pygmy-owl
from further decline in Arizona. As a
result of the implementation of the 2005
Real ID Act (Division B of Pub. L. 109–
13), the U.S. Department of Homeland
Security (DHS) has waived application
of the Act and other environmental laws
in the construction of border
infrastructure, including areas occupied
by the pygmy-owl (73 FR 5272; January
29, 2008). As recently as 2020, DHS
waived environmental compliance for
the construction of border walls along
the U.S.-Mexico border in Arizona and
Texas (Fischer 2019, entire; USCBP
2020, entire). Consequently, pygmy-owl
habitat has been lost and fragmented
along most of the border area in Arizona
and, to a lesser extent, Texas. Of
particular concern is the potential for
border infrastructure to reduce habitat
connectivity into occupied pygmy-owl
habitat in Mexico.
Conservation Efforts and Regulatory
Mechanisms
Because we are considering the best
available information and because the
discussion above primarily addresses
the viability of the cactus ferruginous
pygmy-owl in relation to the threats and
State Protections
The pygmy-owl is included on the
State of Arizona’s list of species of
concern (AGFD 2021, p. 16). Arizona
statute does not address the root causes
leading to destruction or alteration of
pygmy-owl habitat. The State of Texas
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lists the pygmy-owl as threatened
(Texas Administrative Code, title 31,
part 2, chapter 65, subchapter G, rule
65.175; TPWD 2009, p. 1). This
designation allows permits to be issued
for the taking, possession, propagation,
transportation, sale, importation, or
exportation of pygmy-owls if necessary
to properly manage that species, but
does not provide any habitat protections
(Texas Park and Wildlife Code, chapter
67, section 67.0041).
Protections in Mexico
Within Mexico, the distribution of
owls is large and includes multiple
States. The administration of land use in
Mexico depends on the national
government, which implements Natural
Protected Areas and other Federal
programs, and also the policies of each
State and even municipal governments
(Enrı´quez 2021, pers. comm.). This
system represents a wide range of
management, conservation, and natural
resource use approaches that affect
pygmy-owl conservation, resulting in
inconsistent policies and
implementation of conservation
activities. Similar to state laws in the
United States, there are currently no
laws or regulations in Mexico that
specifically protect pygmy-owls and
pygmy-owl habitat. As is the case
throughout the geographic range of the
pygmy-owl, with so many entities
involved in how lands in Mexico are
used and managed, it is complicated
and, sometimes, unrealistic to
implement widespread, consistent
application of regulations that promote
the conservation of pygmy-owls in
Mexico.
Conservation Efforts
Cactus ferruginous pygmy-owl
conservation activities have occurred
sporadically over the past three decades
in both the United States and in
northern Sonora in Mexico. Initial
conservation efforts developed effective
and safe protocols for studying the
cactus ferruginous pygmy-owl and on
gathering basic life-history information.
Efforts expanded in the late 1990s and
early 2000s to include important
pygmy-owl work in Arizona, Texas, and
northern Sonora. For the past two
decades, studies have been irregular and
focused on monitoring of known
territories.
Surveying and Monitoring
The Arizona Game and Fish
Department (AGFD) initiated surveys to
determine the extent of cactus
ferruginous pygmy-owl occurrences in
Arizona in 1992, when the cactus
ferruginous pygmy-owl was first
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petitioned to be listed under the Act.
Survey and monitoring work by a
variety of entities continued through
2006, when the species was delisted.
Prior to delisting, survey and
monitoring efforts were focused in Pima
and Pinal Counties to document the
occupancy pattern of cactus ferruginous
pygmy-owls in areas of land use
changes, primarily urban development.
After the pygmy-owl was delisted in
2006, a small number of monitoring
surveys continued to be conducted by
Service and AGFD biologists. In 2020,
AGFD coordinated a comprehensive
survey effort, with the help of numerous
partners, to gather data on the current
numbers and distribution of the cactus
ferruginous pygmy-owl in Arizona to
inform this listing decision.
Specifically, this effort included surveys
to document distribution, territory
occupancy monitoring, and some nest
searches to document reproduction.
This latest effort provided data on
current distribution of the pygmy-owl in
Arizona and the number of occupied
territories, as well as some information
on the number of active nesting
territories (AGFD 2020, pers. comm.).
These data are incorporated into the
SSA report. However, these efforts did
not provide any information on
productivity or survival at these sites.
Nest Box Trials
Because cactus ferruginous pygmyowls are secondary cavity nesters, the
number of available cavities may
influence the viability of cactus
ferruginous pygmy-owls on the
landscape (Proudfoot 1996, p. 68). Using
nest boxes as a management tool may
enhance the viability of cactus
ferruginous pygmy-owls by increasing
cavity availability and reducing
predation. Nest boxes also enhance
access to the owls during nesting and
facilitate our ability to conduct research.
Research in Texas demonstrated
successful use of artificial nest
structures by cactus ferruginous pygmyowls (Proudfoot et al. 1999, pp. 5–6). In
response to concerns about cavity
availability, two nest box trials were
conducted in Arizona in 1998 and 2006.
No cactus ferruginous pygmy-owls used
the nest boxes in these studies, but low
cavity availability was confirmed based
on high use of the nest boxes by other
species, including screech owls. No
additional nest box studies have been
undertaken in Arizona, and the nest box
study in Texas is no longer active.
Captive Breeding and Population
Augmentation
A pygmy-owl captive-breeding
feasibility study was initiated by the
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AGFD in partnership with the Wild at
Heart raptor care facility in Cave Creek,
Arizona, in 2006. Since then, Wild at
Heart has been researching and testing
protocols for a managed breeding
program for cactus ferruginous pygmyowls. In 2017, the Phoenix Zoo became
the second captive breeding site for
pygmy-owls in Arizona and part of the
managed breeding program when it
entered into partnership with the
Service and the AGFD. Both the AGFD
and the Service oversee this program.
The goal of the managed breeding
program for the cactus ferruginous
pygmy-owl is to develop appropriate
protocols for the husbandry and
breeding of captive pygmy-owls to
provide individuals to augment existing
population groups or establish new
population groups in areas where
suitable habitat exists in Arizona (AGFD
2015, entire). To date, these efforts have
demonstrated: (a) Successful capture
and transport of wild cactus ferruginous
pygmy-owls; (b) safe, healthy, and
stress-free captive facilities; (c) the
development of appropriate care,
feeding, and maintenance protocols; (d)
successful breeding; and (e) appropriate
care and development of young-of-theyear birds. Three pilot releases of
captive-bred pygmy-owls have been
implemented since the inception of this
program. This effort establishes the first
formal captive-breeding for the
subspecies and provides the
groundwork for evaluation of this
strategy in wild cactus ferruginous
pygmy-owl population augmentation.
These pilot releases have not resulted in
the establishment of new pygmy-owl
territories or population groups, but
have contributed valuable information
to developing appropriate release
strategies and protocols to improve the
potential for conservation benefits to the
pygmy-owl in the future.
Conservation Planning
When the pygmy-owl was listed
previously, several municipalities
located within current or historical
pygmy-owl activity areas explored or
implemented habitat conservation plans
(HCPs) under the Act to address
potential conflicts between
development projects and requirements
of the Act. These HCP plans included
the Sonoran Desert Conservation Plan
(Multi-Species Conservation Plan)
developed by Pima County (Pima
County 2016, entire), the Town of
Marana HCP (Town of Marana 2009,
entire), and the City of Tucson’s Avra
Valley (City of Tucson 2019, entire) and
Southlands HCPs (City of Tucson 2013,
entire). Each of these four HCP efforts
identified the cactus ferruginous pygmy-
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owl as one of the covered species within
their plans. However, most of these
plans have yet to be completed: To date,
only the Pima County HCP has been
completed and is being implemented.
Pima County is currently conducting
ongoing surveys and monitoring of
pygmy-owl territories on countymanaged lands and has set aside pygmyowl habitat as part of their conservation
lands system in compliance with their
HCP. The establishment of these
conservation lands is an important
contribution to pygmy-owl conservation
in Pima County, but continuing efforts
are needed to address other threats such
as habitat impacts from climate change.
Pima County’s efforts are expected to
continue for the 30-year life of their
permit (through 2046) and longer if the
County renews the permit.
Another ongoing conservation
planning effort that has the potential to
support pygmy-owl conservation in the
Altar Valley of southern Arizona is the
Altar Valley Watershed Management
Plan. This plan being developed by the
Altar Valley Conservation Alliance with
numerous partners and participants
builds upon existing efforts within the
Altar Valley to restore and enhance the
watershed. The plan will describe
stewardship practices and identify a
series of high-priority projects that
maximize positive impacts on the land.
While this planning effort has yet to be
completed, projects related to watershed
restoration have been implemented at
three ranches in the Altar Valley. These
projects have included one-rock dams
and other structures to stabilize
waterways, road grading to promote
water harvesting, and enhancement of
grasslands through invasive species
control to promote infiltration and
reduce runoff and sedimentation. These
actions improve vegetation health
through increased water infiltration and
reduce loss of soil and vegetation due to
erosion. Specific benefits occur to
riparian vegetation along drainages
enhancing pygmy-owl habitat
conditions and connectivity.
In Mexico, there are Federal, State, or
municipal protected areas which
comprise approximately 11 percent of
the historical pygmy-owl range in
Mexico. These areas can work well as
conservation strategies for the cactus
ferruginous pygmy-owl. There is now a
new option for protected areas called
´ reas
Voluntary Conservation Areas (A
Destinadas Voluntariamente a la
Conservacio´n; ADVA), which are areas
identified for conservation. These
ADVA could be a potential conservation
strategy for the pygmy-owl in the future
(Enrı´quez 2021, pers. comm.).
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Determination of Cactus Ferruginous
Pygmy-Owl’s Status
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species.’’ The
Act defines an ‘‘endangered species’’ as
a species in danger of extinction
throughout all or a significant portion of
its range, and a ‘‘threatened species’’ as
a species likely to become an
endangered species within the
foreseeable future throughout all or a
significant portion of its range. The Act
requires that we determine whether a
species meets the definition of an
‘‘endangered species’’ or a ‘‘threatened
species’’ because of any of the following
factors: (A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence.
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Status Throughout All of Its Range
We examined the following threats to
the cactus ferruginous pygmy-owl:
Climate change and climate condition
(Factor E), habitat loss and
fragmentation (Factor A), human
activities and disturbance (Factors B
and E), human-caused mortality (Factors
B and E), disease and predation (Factor
C), and small population size (Factor E),
and we determined that the primary
threats to the subspecies are climate
change and climate condition, and
habitat loss and fragmentation. Existing
regulatory mechanisms (Factor D) and
conservation efforts do not address the
threats to the cactus ferruginous pygmyowl to the extent that listing the
subspecies is not warranted.
Population resiliency is highly
variable across the range of the pygmyowl. Overall, three analysis units
maintain a moderate level of resiliency,
with western Mexico maintaining a high
level of resiliency and Arizona with a
low level of resiliency. Therefore, the
majority of the analysis units we
examined maintain some ability to
withstand stochastic events.
Additionally, the western Mexico and
northeast Mexico analysis units are
estimated to support tens of thousands
of pygmy-owls. Due to the broad
geographic distribution and network of
population groups that are connected
within and between some analysis units
throughout most of its range, the pygmy-
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owl has some ability to recolonize
following catastrophic events and is
considered to have adequate
redundancy. Additionally, the cactus
ferruginous pygmy-owl currently has
high genetic and ecological variability
across the range. This ecological
diversity provides the subspecies with
sufficient representation and may allow
the pygmy-owl to adapt to, and survive,
future environmental change.
After evaluating threats to the
subspecies and assessing the cumulative
effect of the threats under the Act’s
section 4(a)(1) factors, we conclude that
the risk factors acting on the cactus
ferruginous pygmy-owl and its habitat,
either singly or in combination, are not
of sufficient imminence, intensity, or
magnitude to indicate that the
subspecies is in danger of extinction
now (an endangered species) throughout
all of its range. Despite current stressors,
the subspecies currently maintains
adequate resiliency, redundancy, and
representation across the range such
that the subspecies is currently able to
withstand stochastic and catastrophic
events and maintain adequate genetic
and ecological variation throughout its
range.
However, our analysis of the cactus
ferruginous pygmy-owl’s future
conditions shows that the threats to the
subspecies are likely to continue into
the future, resulting in continued loss
and fragmentation of habitat putting the
species at risk of extinction within the
foreseeable future.
Under all future scenarios, we project
a continued reduction in species
viability throughout the range of the
subspecies due to climate change,
habitat loss, and habitat fragmentation.
In 30 years, even under our most
optimistic scenario, the reduced effects
scenario, there will be no analysis units
in high condition. This represents a
decrease from current conditions with
one analysis unit declining from high to
moderate condition, and one analysis
unit declining from moderate to low
condition. Additionally, despite
maintaining their current condition
categories over the next 30 years, habitat
and demographic conditions within the
other three analysis units continue to
decline. Over the next 30 years, many of
the analysis units will become
increasingly vulnerable to extirpation
through the degradation of habitat
conditions. We anticipate that
urbanization and development will
continue under all future scenarios and
in all analysis units. Invasive species
will continue to spread into pygmy-owl
habitat in most analysis units and
deforestation and wood harvesting will
continue in all three analysis units in
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Mexico. Continued loss and degradation
of pygmy-owl habitat will reduce
overall species resiliency, impeding the
ability of the subspecies to withstand
stochastic events and increasing the risk
of extirpation following such events.
The loss of population groups will lead
to a reduction in representation,
reducing the subspecies’ ability to adapt
over time to changes in the
environment, such as climate changes.
This expected reduction in both the
number and distribution of sufficiently
resilient population groups will reduce
redundancy and impede the ability of
the subspecies to recolonize following
catastrophic disturbance. Thus, after
assessing the best available information,
we conclude that the cactus ferruginous
pygmy-owl is not currently in danger of
extinction but is likely to become in
danger of extinction within the
foreseeable future throughout all of its
range.
Status Throughout a Significant Portion
of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. The court in Center
for Biological Diversity v. Everson, 2020
WL 437289 (D.D.C. Jan. 28, 2020)
(Center for Biological Diversity), vacated
the aspect of the Final Policy on
Interpretation of the Phrase ‘‘Significant
Portion of Its Range’’ in the Endangered
Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species’’ (79 FR 37578; July 1, 2014)
that provided that the Service does not
undertake an analysis of significant
portions of a species’ range if the
species warrants listing as threatened
throughout all of its range. Therefore,
we proceed to evaluating whether the
species is endangered in a significant
portion of its range—that is, whether
there is any portion of the species’ range
for which both (1) the portion is
significant; and (2) the species is in
danger of extinction in that portion.
Depending on the case, it might be more
efficient for us to address the
‘‘significance’’ question or the ‘‘status’’
question first. We can choose to address
either question first. Regardless of
which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
Following the court’s holding in
Center for Biological Diversity, we now
consider whether there are any
significant portions of the species’ range
where the species is in danger of
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extinction now (i.e., endangered). In
undertaking this analysis for cactus
ferruginous pygmy-owl, we choose to
address the status question first—we
consider information pertaining to the
geographic distribution of both the
species and the threats that the species
faces to identify any portions of the
range where the species is endangered.
The statutory difference between an
endangered species and a threatened
species is the timeframe in which the
species becomes in danger of extinction;
an endangered species is in danger of
extinction now while a threatened
species is not in danger of extinction
now but is likely to become so in the
foreseeable future. Thus, we reviewed
the best scientific and commercial data
available regarding the time horizon for
the threats that are driving the cactus
ferruginous pygmy-owl to warrant
listing as a threatened species
throughout all of its range. We
considered whether the threats are
geographically concentrated in any
portion of the species’ range in a way
that would accelerate the time horizon
for the species’ exposure or response to
the threats. We examined the following
threats: Climate change and climate
condition (Factor E) and habitat loss and
fragmentation (Factor A), including
cumulative effects.
We found a concentration of threats,
i.e., the impacts of climate change,
urbanization, and invasive species, in
the Sonoran Desert Ecoregion, which
extends from Arizona south into Sonora,
Mexico. Climate change impacts to the
pygmy-owl in the Sonoran Desert
Ecoregion are likely to include loss of
vegetation cover, reduced prey
availability, increased predation,
reduced nest site availability, and
vegetation community change. For
example, models predict that the
distribution of suitable habitat for
saguaros, the primary pygmy-owl
nesting substrate within the Sonoran
Desert Ecoregion, will substantially
decrease over the next 50 years under a
moderate climate change scenario
(Weiss and Overpeck 2005, p. 2074;
Thomas et al. 2012, p. 43).
Climate models project that, by the
end of the 21st century, the Sonoran
Desert will experience an increase in
drought conditions with a transition to
a drier and more arid climate (Seager et
al. 2007, p. 9; Cook et al. 2015, p. 6;
Pascale et al. 2017, p. 806; Williams et
al. 2020, p. 317). Given that this portion
of the pygmy-owl’s overall range is
already characterized by arid and hot
conditions and is in the midst of an
extended drought, the effects from
climate change represent a higher
concentration of effects than in other
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portions of the pygmy-owl’s range,
which generally are characterized by
higher precipitation and lower
temperatures resulting in a baseline of
higher greenness and vegetation health.
In general, annual precipitation in the
Sonoran Desert is positively correlated
to pygmy-owl productivity (Flesch et al.
2015, p. 26). Timing and quantity of
precipitation affects lizard and rodent
abundance in ways that suggest rainfall
is an important driver of prey
population and community dynamics.
In general, cool-season rainfall is
positively correlated with rodent
populations and warm-season rainfall is
positively correlated with lizard
populations. Projected increases in
variability and decreases in quantity of
precipitation will likely lead to a
decrease in prey abundance for the
pygmy-owl (Jones 1981, p. 111; Flesch
2008, p. 5; Flesch et al. 2015, p. 26).
Urban expansion and human
population growth trends are expected
to continue in the Sonoran Desert
Ecoregion. The Maricopa-Pima-Pinal
County areas of Arizona are expected to
see the population grow by as much as
132 percent between 2005 and 2050,
creating rural-urban edge effects across
thousands of acres of pygmy-owl habitat
(AECOM 2011, p. 13).
The population along the U.S.-Mexico
border region from Texas to California is
expected to double by 2025 (HHS 2017,
p. 1). In Arizona, the border counties are
projected to increase by 60 percent to
2.5 million by 2050 (OEO 2021,
unpaginated). In Sonora the population
is projected to reach 3.5 million by 2030
(CONAPO 2014, p. 25). Development is
focused along the border and this area
of northern Mexico has faster
population growth than other Mexican
states (Pineiro 2001, pp. 1–2). This
development focuses potential barriers
or impediments to pygmy-owl
movements in a region that is important
for demographic support (immigration
events and gene flow) of pygmy-owl
population groups, including
movements such as dispersal. If urban
expansion and development continues
as expected, it will encompass a
substantial portion of the current
distribution of the pygmy-owl in the
Sonoran Desert Ecoregion.
The invasion of nonnative vegetation,
particularly nonnative grasses, has
altered the natural fire regime over the
Sonoran Desert Ecoregion portion of the
pygmy-owl’s range. Buffelgrass is
prevalent and increasing throughout
much of this portion of the pygmy-owl’s
range, leading to increased fire
frequency in a system that is not
adapted to fire (Schmid and Rogers
1988, p. 442; D’Antonio and Vitousek
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1992, p. 73; Burquez and Quintana
1994, p. 23; Halverson and Guertin
2003, p. 13; Van Devender and Dimmit
2006, p. 5). While a single fire in an area
may or may not produce long-term
reductions in plant cover or biomass,
repeated wildfires in a given area are
capable of ecosystem type-conversion
from native desertscrub to nonnative
annual grassland. These repeated fires
may render the area unsuitable for
pygmy-owls and other native wildlife
due to the loss of trees and columnar
cacti, and reduced diversity of cover
and prey species (Brooks and Esque
2002, p. 336).
Despite the current concentration of
threats and their increasing effects to
pygmy-owls and pygmy-owl habitat, the
Sonoran Desert Ecoregion currently
supports an abundance of pygmy-owls
in the high hundreds and a moderate
amount of intact, suitable vegetation.
Consequently, these factors are
currently maintaining an overall
moderate level of resiliency in this
portion of the range. Additionally, there
is currently habitat connectivity with
evidence of pygmy-owl movement
among population groups, providing
redundancy throughout the Sonoran
Desert Ecoregion. Representation is also
currently being maintained through
pygmy-owl occupancy of a variety of
vegetation types throughout the Sonoran
Desert Ecoregion with gene flow among
these population groups. However,
under all three future scenarios, this
portion of the range is expected to
become less resilient due to continued
habitat fragmentation and the effects of
climate change on habitat conditions,
resulting in a reduction of pygmy-owl
abundance and occupancy. These
deteriorating conditions are also
anticipated to result in declines in
redundancy and representation through
the loss of population groups within the
Ecoregion.
Although some threats to the cactus
ferruginous pygmy-owl are concentrated
in the Sonoran Desert Ecoregion, the
best scientific and commercial data
available does not indicate that the
concentration of threats, or the species’
responses to the concentration of
threats, are likely to accelerate the time
horizon in which the species becomes
in danger of extinction in that portion
of its range. As a result, the cactus
ferruginous pygmy-owl is not in danger
of extinction now in the Sonoran Desert
Ecoregion. However, we do find that the
species is likely to become in danger of
extinction within the foreseeable future
throughout all of its range. This finding
is consistent with the courts’ holdings
in Desert Survivors v. Department of the
Interior, No. 16–cv–01165–JCS, 2018
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WL 4053447 (N.D. Cal. Aug. 24, 2018),
and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d, 946, 959 (D.
Ariz. 2017).
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Determination of Status
Our review of the best available
scientific and commercial information
indicates that the cactus ferruginous
pygmy-owl meets the Act’s definition of
a threatened species. Therefore, we
propose to list the cactus ferruginous
pygmy-owl as a threatened species in
accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to
species listed as endangered or
threatened species under the Act
include recognition, recovery actions,
requirements for Federal protection, and
prohibitions against certain practices.
Recognition through listing results in
public awareness, and conservation by
Federal, State, Tribal, and local
agencies, private organizations, and
individuals. The Act encourages
cooperation with the States and other
countries and calls for recovery actions
to be carried out for listed species. The
protection required by Federal agencies
and the prohibitions against certain
activities are discussed, in part, below.
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Section 4(f) of the
Act calls for the Service to develop and
implement recovery plans for the
conservation of endangered and
threatened species. The recovery
planning process involves the
identification of actions that are
necessary to halt or reverse the species’
decline by addressing the threats to its
survival and recovery. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
Recovery planning consists of
preparing draft and final recovery plans,
beginning with the development of a
recovery outline and making it available
to the public within 30 days of a final
listing determination. The recovery
outline guides the immediate
implementation of urgent recovery
actions and describes the process to be
used to develop a recovery plan.
Revisions of the plan may be done to
address continuing or new threats to the
species, as new substantive information
becomes available. The recovery plan
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also identifies recovery criteria for
review of when a species may be ready
for reclassification from endangered to
threatened (‘‘downlisting’’) or removal
from protected status (‘‘delisting’’) and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Recovery teams
(composed of species experts, Federal
and State agencies, nongovernmental
organizations, and stakeholders) are
often established to develop recovery
plans. If we adopt this rule as proposed,
when completed, the recovery outline,
draft recovery plan, and the final
recovery plan for the cactus ferruginous
pygmy-owl will be available on our
website (https://www.fws.gov/
endangered), or from our Arizona
Ecological Services Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
If this species is listed, funding for
recovery actions will be available from
a variety of sources, including Federal
budgets, State programs, and cost-share
grants for non-Federal landowners, the
academic community, and
nongovernmental organizations. In
addition, pursuant to section 6 of the
Act, the States of Arizona and Texas
would be eligible for Federal funds to
implement management actions that
promote the protection or recovery of
the cactus ferruginous pygmy-owl.
Information on our grant programs that
are available to aid species recovery can
be found at: https://www.fws.gov/grants.
Section 8(a) of the Act (16 U.S.C.
1537(a)) authorizes the provision of
limited financial assistance for the
development and management of
programs that the Secretary of the
Interior determines to be necessary or
useful for the conservation of
endangered or threatened species in
foreign countries. Sections 8(b) and 8(c)
of the Act (16 U.S.C. 1537(b) and (c))
authorize the Secretary to encourage
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conservation programs for foreign listed
species, and to provide assistance for
such programs, in the form of personnel
and the training of personnel.
Although the cactus ferruginous
pygmy-owl is only proposed for listing
under the Act at this time, please let us
know if you are interested in
participating in recovery efforts for this
subspecies. Additionally, we invite you
to submit any new information on this
subspecies whenever it becomes
available and any information you may
have for recovery planning purposes
(see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to any species that
is proposed or listed as an endangered
or threatened species and with respect
to its critical habitat, if any is
designated. Regulations implementing
this interagency cooperation provision
of the Act are codified at 50 CFR part
402. Section 7(a)(4) of the Act requires
Federal agencies to confer with the
Service on any action that is likely to
jeopardize the continued existence of a
species proposed for listing or result in
destruction or adverse modification of
proposed critical habitat. If a species is
listed subsequently, 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
the species or destroy or adversely
modify its critical habitat. If a Federal
action may affect a listed species or its
critical habitat, the responsible Federal
agency must enter into consultation
with the Service.
Federal agency actions within the
species’ habitat that may require
conference or consultation or both as
described in the preceding paragraph
include management and any other
landscape-altering activities on Federal
lands administered, or on private lands
seeking funding, by Federal agencies,
which may include, but are not limited
to, the Department of the Interior’s U.S.
Fish and Wildlife Service, Bureau of
Land Management, and National Park
Service (Organ Pipe Cactus National
Monument and Ironwood Forest
National Monument); the Department of
Defense’s (Barry M. Goldwater Air Force
Range) and U.S. Army Corps of
Engineers (for issuance of section 404
Clean Water permits); the U.S.
Department of Agriculture’s U.S. Forest
Service, Natural Resources Conservation
Service, and Farm Service Agency; and
construction and maintenance of roads
or highways by the Federal Highway
Administration.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
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34272), to identify to the maximum
extent practicable at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the Act. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of the species proposed for
listing. The discussion below regarding
protective regulations under section 4(d)
of the Act complies with our policy.
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II. Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the Secretary shall issue such
regulations as he [or she] deems
necessary and advisable to provide for
the conservation of species listed as
threatened. The U.S. Supreme Court has
noted that statutory language like
‘‘necessary and advisable’’ demonstrates
a large degree of deference to the agency
(see Webster v. Doe, 486 U.S. 592
(1988)). Conservation is defined in the
Act to mean the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants. Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
the Service when adopting the
prohibitions under section 9.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld rules developed under section
4(d) as a valid exercise of agency
authority where they prohibited take of
threatened wildlife, or include a limited
taking prohibition (see Alsea Valley
Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 (D. Or. 2007);
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 (W.D. Wash.
2002)). Courts have also upheld 4(d)
rules that do not address all of the
threats a species faces (see State of
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Louisiana v. Verity, 853 F.2d 322 (5th
Cir. 1988)). As noted in the legislative
history when the Act was initially
enacted, ‘‘once an animal is on the
threatened list, the Secretary has an
almost infinite number of options
available to him [or her] with regard to
the permitted activities for those
species. He [or she] may, for example,
permit taking, but not importation of
such species, or he [or she] may choose
to forbid both taking and importation
but allow the transportation of such
species’’ (H.R. Rep. No. 412, 93rd Cong.,
1st Sess. 1973).
Exercising this authority under
section 4(d), we have developed a
proposed rule that is designed to
address the cactus ferruginous pygmyowl’s conservation needs. Although the
statute does not require us to make a
‘‘necessary and advisable’’ finding with
respect to the adoption of specific
prohibitions under section 9, we find
that this proposed rule as a whole
satisfies the requirement in section 4(d)
of the Act to issue regulations deemed
necessary and advisable to provide for
the conservation of the cactus
ferruginous pygmy-owl. Because of the
large geographic range of the cactus
ferruginous pygmy-owl, different
portions of the geographic range are
affected by different types and extent of
threats and stressors. Therefore, it is
feasible that exceptions under this
proposed 4(d) rule may be different for
the different analysis units described in
the SSA report. We encourage public
comment providing support for the
potential application of different
exceptions in different portions of the
cactus ferruginous pygmy-owl’s
geographic range.
As discussed above under Summary
of Biological Status and Threats, we
have concluded that the cactus
ferruginous pygmy-owl is likely to
become in danger of extinction within
the foreseeable future primarily due to
a loss of vegetation cover, reduced prey
availability, increased predation,
reduced nest site availability, and
vegetation community change resulting
from ongoing climate change,
particularly increases in drought
conditions, as well as due to habitat loss
and fragmentation stemming from
urbanization, agriculture, deforestation,
and invasive species. This proposed
4(d) rule identifies the prohibitions
needed to conserve the cactus
ferruginous pygmy-owl.
We considered the range of potential
activities that may potentially affect the
cactus ferruginous pygmy-owl’s status
and viability. There is a very wide range
of such potential activities including,
but not limited to, commercial and
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residential development, infrastructure
development and maintenance, utility
work, activities related to border
infrastructure and enforcement, grazing
and ranching activities, activities
conducted under Clean Water Act
permits, mining, flood control activities,
recreation, and activities conducted
under land management plans. There is
also a wide range of factors that affect
the implementation of each of these
activity types resulting in unique
circumstances that we considered in
developing proposed 4(d) rule
exceptions. Ultimately, we find that it is
appropriate to extend the standard
section 9 prohibitions for endangered
species to the cactus ferruginous pygmyowl in order to conserve the subspecies.
However, while developing this
proposed 4(d) rule, the Service
considered exceptions to the standard
section 9 prohibitions for endangered
species that would facilitate essential
conservation actions needed for the
cactus ferruginous pygmy-owl. We
consider essential conservation efforts
to include facilitating surveys and
monitoring of cactus ferruginous
pygmy-owl population groups; enabling
research to better understand cactus
ferruginous pygmy-owl’s needs and
stressors (including the use of nest
boxes and captive breeding); conducting
education and outreach activities to
increase public awareness and support
of cactus ferruginous pygmy-owl
conservation and recovery; and
encouraging management of the
landscape in ways that meet both land
management considerations and the
conservation needs of the cactus
ferruginous pygmy-owl. Such land
management considerations potentially
include restoration and habitat
improvement actions (including
nonnative, invasive species
management), watershed improvements,
and grazing management that is
compatible with cactus ferruginous
pygmy-owl habitat enhancement and
restoration, provided pygmy-owl habitat
enhancement and restoration is
identified as a significant outcome of
the management actions and such
actions are coordinated with the
Service.
For the purposes of this proposed rule
and our SSA analysis, we consider
surveying and monitoring activities
necessary to understand and implement
cactus ferruginous pygmy-owl
conservation and recovery. We currently
lack data on the current numbers,
density, and distribution of the cactus
ferruginous pygmy-owl across its
defined geographic range in both the
United States and Mexico. We also lack
comprehensive data on the productivity,
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survival, mortality, and other naturalhistory characteristics of the cactus
ferruginous pygmy-owl. Such data have
been gathered historically, but only in
local areas and primarily only in the
United States and northern Sonora.
Where we have data on occurrence,
numbers, density, and natural-history
variables, they allow us to better
understand the status of the cactus
ferruginous pygmy-owl and what
actions are necessary to conserve
population groups and enhance status
and viability. Surveying and monitoring
activities can result in short-term effects
to cactus ferruginous pygmy-owls and,
potentially, in the take of individuals
and nest sites. We want to encourage
more comprehensive and widespread
surveying and monitoring activities
across the geographic range of the cactus
ferruginous pygmy-owl, and thus, we
are considering providing an exception
for this action in the 4(d) rule. This
exception could occur by recognizing
State authority to issue a permit to
conduct call broadcast surveys and
monitoring and nest monitoring for
listed species. This state permitting
would ensure oversight for surveyor and
monitor qualifications, as well as data
submission to the State agencies. Thus,
an exception to the prohibitions of take
could be granted under the 4(d) rule if
the surveyors and monitors possessed a
valid state permit, if required. If a State
permit is not required to conduct call
broadcast surveys and monitoring and
nest monitoring, such activities could
require a Federal 10(a)(1)(A) permit. We
are considering this approach to
recognize State authorities and
streamline permitting processes. This
exception would not cover any activities
that involve the handling of pygmyowls. We encourage public and agency
comments related to our consideration
of using the State permitting process in
the 4(d) rule as the basis of an exception
to the prohibitions on take related to
pygmy-owl survey and monitoring
activities.
Similar to surveying and monitoring,
research related to all aspects of cactus
ferruginous pygmy-owl natural history
are needed to fill in information gaps
and improve our understanding of the
needs and stressors of the cactus
ferruginous pygmy-owl to be able to
identify and implement effective
conservation and recovery actions. This
includes research into the effectiveness
of a managed breeding program for the
pygmy-owl.
Because research that involves the
capture, handling, marking, human care,
tissue sample collection, etc., of pygmyowls may result in the direct take of
cactus ferruginous pygmy-owls, it is
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necessary to require those implementing
these actions to have the appropriate
background, expertise, and equipment
and materials to implement these
activities. We find that these activities
are best administered through our
section 10 permitting process (under the
Act’s section 10(a)(1)(A)). This
permitting process allows us to assess
the appropriateness of the proposed
projects and activities with regard to
promoting the conservation of the
cactus ferruginous pygmy-owl; ensure
the competency of those conducting the
activities; reduce the potential for
redundancy of effort and overlapping
effects to cactus ferruginous pygmyowls; and facilitate the opportunity to
receive, analyze, and incorporate the
most current information into
conservation and recovery actions.
Restoration and habitat improvement
actions are those actions that convert
areas that are otherwise not habitat for
the cactus ferruginous pygmy-owl to
areas that are cactus ferruginous pygmyowl habitat or actions that improve
areas of lesser quality cactus ferruginous
pygmy-owl habitat to areas of higher
quality cactus ferruginous pygmy-owl
habitat. These actions are essential for
the subspecies, as this is the only way
to offset habitat loss and fragmentation.
For the cactus ferruginous pygmy-owl,
the primary restoration or habitat
improvement actions include, but are
not limited to, placement of nest boxes,
restoration of native species,
establishment or protection of nesting
substrates (large trees and columnar
cacti), invasive species control, riparian
enhancement, water developments,
watershed improvements, improved
habitat connectivity, and fire
management. Because we want to
encourage the implementation of cactus
ferruginous pygmy-owl habitat
restoration and enhancement, we are
proposing in the 4(d) rule an exemption
to the take of cactus ferruginous pygmyowls that may result from such
activities, as described below. In order
to receive this exemption, the habitat
restoration and improvement projects
must be coordinated with, and receive
approval from, the Service prior to work
commencing.
Education and outreach activities
allow cactus ferruginous pygmy-owl
conservation partners to present
information to various segments of the
public related to ongoing conservation
and management activities and
programs. Public awareness of the
cactus ferruginous pygmy-owl’s biology,
ecology, and threats helps foster support
for recovery program activities across
the geographic range of the cactus
ferruginous pygmy-owl. Increasing the
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prevailing understanding of how
recovery activities for the cactus
ferruginous pygmy-owl improve the
health, function, and quality of the
environments where they are found, as
well as the human communities located
in proximity to occupied cactus
ferruginous pygmy-owl habitat, will
strengthen support for continued
conservation of the pygmy-owl and for
the habitats upon which it depends.
Education and outreach will also serve
to counteract incorrect narratives that
conservation of the cactus ferruginous
pygmy-owl is responsible for preventing
activities and development that
positively affect the area’s social and
economic well-being. Allowing the
public to personally see pygmy-owls
through the use of educational animals
can result in take of individuals. The
potential for this type of take is already
addressed through the issuance of a
Migratory Bird Treaty Act (MBTA)
permit and we are proposing to
streamline permitting by acknowledging
the existing MBTA process in this
proposed 4(d) rule. Such education and
outreach programs can increase public
awareness, engagement, and support for
cactus ferruginous pygmy-owl
conservation and recovery. Such
benefits outweigh the effects to
individual pygmy-owls.
Finally, we considered the need for
compatibly managed grazing activities
that result in the vegetation structure
and composition needed to support the
cactus ferruginous pygmy-owl. The
habitat needs for the cactus ferruginous
pygmy-owl vary across the subspecies’
geographic range, and grazing can affect
these habitats in different ways. It is
important that grazing is managed at a
given site to account for a variety of
factors specific to the local ecological
site, including past management, soils,
precipitation, and other factors, to
ensure that the resulting vegetative
composition and structure will support
the cactus ferruginous pygmy-owl.
Grazing management that has altered
the vegetation community to a point
where the composition and structure are
no longer suitable for cactus ferruginous
pygmy-owls can contribute to habitat
loss and fragmentation within the
landscape, even though these areas may
remain as open space on the landscape.
Livestock grazing, however, is not
inherently detrimental to the cactus
ferruginous pygmy-owl, provided that
grazing management results in a plant
community with species and structural
diversity suitable for the cactus
ferruginous pygmy-owl. When livestock
grazing is managed compatibly, it can be
an invaluable tool for managing healthy
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vegetation communities benefiting the
cactus ferruginous pygmy-owl.
While developing this proposed 4(d)
rule, we determined that grazing
management has to occur on the local
level, and thus broad determinations
within this proposed 4(d) rule would
not be beneficial to the species or local
land managers. While the 4(d) rule was
one approach considered to promote
conservation of the cactus ferruginous
pygmy-owl by encouraging management
of vegetation communities in ways that
support both long-term viability of
livestock enterprises and concurrent
conservation of pygmy-owls, we
determined that other mechanisms
under our authorities would be more
appropriate to support this action.
Besides a 4(d) rule, other mechanisms
supporting conservation opportunities
exist in other portions of the Act and
our policies, including under the Act’s
section 7(a) (Federal Agency Actions
and Consultations), the Act’s section
10(a) (Permits), and our conservation
banking program. We recognize the
value of compatibly managed grazing for
the cactus ferruginous pygmy-owl, and
we look forward to working with our
partners and local land managers to
ensure there are viable conservation
options that provide regulatory coverage
for interested landowners. We
encourage public comments related to
the issue of properly managed grazing
and the appropriate best approach for
addressing livestock grazing and
management within the range of tools
available.
As indicated above, the provisions of
this proposed 4(d) rule are one of many
tools that we would use to promote the
conservation of the cactus ferruginous
pygmy-owl. This proposed 4(d) rule
would apply only if and when we make
final the listing of the cactus ferruginous
pygmy-owl as a threatened species.
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
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. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action which
is likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
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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 U.S. Army Corps of Engineers 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.
This obligation does not change in
any way for a threatened species with a
species-specific 4(d) rule. Actions that
result in a determination by a Federal
agency of ‘‘not likely to adversely
affect’’ continue to require the Service’s
written concurrence and actions that are
‘‘likely to adversely affect’’ a species
require formal consultation and the
formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would
provide for the conservation of the
cactus ferruginous pygmy-owl by
prohibiting the following activities,
except as otherwise authorized or
permitted: Importing or exporting; take;
possession and other acts with
unlawfully taken specimens; delivering,
receiving, transporting, or shipping in
interstate or foreign commerce in the
course of commercial activity; or selling
or offering for sale in interstate or
foreign commerce. In addition, anyone
taking, attempting to take, or otherwise
possessing a cactus ferruginous pygmyowl, or parts thereof, in violation of
section 9 of the Act would be subject to
a penalty under section 11 of the Act,
with certain exceptions (discussed
below).
Under the Act, ‘‘take’’ means to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
to attempt to engage in any such
conduct. Some of these provisions have
been further defined in regulations at 50
CFR 17.3. Take can result knowingly or
otherwise, by direct and indirect
impacts, intentionally or incidentally.
Regulating take that occurs incidental to
otherwise lawful activities (section 7
consultations with Federal action
agencies) would help to conserve and
recover the cactus ferruginous pygmyowl by evaluating the potential of
various activities to adversely affect or
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otherwise decrease the viability of the
cactus ferruginous pygmy-owl. As
mentioned above, a wide variety of
lawful activities and projects have the
potential to negatively affect the
viability of this subspecies: Disturbance,
loss and fragmentation of habitat,
reduction of prey species, loss of nesting
substrates, introduction of nonnative
predators and competitors, and other
similar effects. By regulating these types
of activities and projects, we can
conserve the subspecies’ remaining
habitat and populations; slow the rate of
habitat loss and fragmentation; slow the
subspecies’ rate of decline; and decrease
synergistic, negative effects from other
ongoing future threats.
Conversely, allowing incidental and
intentional take for certain activities
allow us to promote pygmy-owl
conservation and improve pygmy-owl
habitat. For example, habitat restoration
and improvement works to offset losses
and fragmentation of habitat from
factors related to climate change and
human land uses on the landscape.
Education and outreach efforts help to
increase public awareness and
understanding and to garner support for
conservation and recovery of the cactus
ferruginous pygmy-owl. Thus, benefits
to the cactus ferruginous pygmy-owl are
derived both from regulating certain
sources of potential take and by
excepting certain take for activities
where benefits outweigh the short-term
effects of the take on cactus ferruginous
pygmy-owl populations.
As discussed above under Summary
of Biological Status and Threats, the loss
of vegetation cover, reduced prey
availability, increased predation,
reduced nest site availability, and
vegetation community change resulting
from ongoing climate change,
particularly increases in drought
conditions, and habitat loss and
fragmentation stemming from
urbanization, agriculture, deforestation,
and invasive species are affecting the
status of the cactus ferruginous pygmyowl. We have identified various
activities that have the potential to help
us understand and offset the activities
affecting the cactus ferruginous pygmyowl’s viability. Therefore, a range of
conservation activities, including
education and outreach related to cactus
ferruginous pygmy-owl recovery, and
management of the landscape in ways
that meet both land management
considerations and the conservation
needs of the cactus ferruginous pygmyowl, have the potential to benefit the
cactus ferruginous pygmy-owl. Such
land management considerations
potentially include restoration and
habitat improvement actions, watershed
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improvements, and grazing management
that is compatible with cactus
ferruginous pygmy-owl habitat
enhancement and restoration, provided
such habitat enhancement and
restoration is identified as a significant
outcome of the management actions and
such actions are coordinated with the
Service and appropriate State and Tribal
agencies and landowners. Accordingly,
this proposed 4(d) rule addresses
activities to facilitate conservation and
management of the cactus ferruginous
pygmy-owl where the activities
currently occur and may occur in the
future by excepting the activities from
the Act’s take prohibition under certain
specific conditions. These activities are
intended to increase management
flexibility and encourage support for
conservation of, habitat restoration for,
and habitat improvement for the cactus
ferruginous pygmy-owl.
Under this proposed 4(d) rule, most
take would be prohibited. Exceptions to
the prohibitions on take would include
some of the general exceptions allowed
for take of endangered wildlife as set
forth is 50 CFR 17.21 (see the rule
portion of this document) and certain
other specific activities that we propose
for exception, as described below. The
excepted activities would require
approval by the Service or would have
to be conducted under an existing,
appropriate, valid permit issued under
part 21 of title 50 of the Code of Federal
Regulations, which governs species
protected under the MBTA, as described
below. These activities should be
conducted in coordination with
appropriate land management agencies;
State, Tribal, and local agencies; and
private landowners, as appropriate, and
in support of any existing or future
designated recovery programs guiding
the conservation and recovery of the
cactus ferruginous pygmy-owl. The
following activities would be excepted
from the take prohibitions for the
pygmy-owl (i.e., take would be allowed
for these activities) under this proposed
4(d) rule.
Education and Outreach
Education and outreach are a vital
part of cactus ferruginous pygmy-owl
recovery and progress towards
achieving and maintaining viable
populations of cactus ferruginous
pygmy-owls. This proposed 4(d) rule
excepts from take prohibitions those
cactus ferruginous pygmy-owl
education and outreach activities
undertaken for the purposes of
increasing public awareness of cactus
ferruginous pygmy-owl biology,
ecology, or recovery needs, as well as of
the positive effects of having pygmy-
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owls as a viable part of the local
ecosystems on the local society,
economy, and quality of life for
communities. Such educational
activities may include use of
educational captive-reared cactus
ferruginous pygmy-owls, pygmy-owl
skins, or parts of pygmy-owls. These
activities raptors are typically covered
by a permit issued under 50 CFR part
21, which governs species protected
under the MBTA. To remove redundant
permitting, this proposed 4(d) rule will
cover incidental take resulting from
educational and outreach activities,
provided the researcher already holds
an appropriate and valid MBTA permit
issued under 50 CFR part 21. These
activities can increase public awareness,
engagement, and support for cactus
ferruginous pygmy-owl conservation
and recovery.
Education and outreach activities
must be coordinated with the Service
prior to commencing work.
Coordination can occur in person, by
phone, or through written
communications. Education and
outreach activities covered by this
proposed 4(d) rule would have to be
consistent with an existing designated
recovery program, such as a final
recovery plan, and benefit cactus
ferruginous pygmy-owl conservation
through increased public awareness and
engagement, which supports cactus
ferruginous pygmy-owl recovery.
Education and outreach qualifying
under this exception would not require
a permit issued under section 10(a) of
the Act.
Habitat Restoration and Enhancement
Incidental take resulting from habitat
restoration or enhancement projects that
improve the viability of cactus
ferruginous pygmy-owl populations and
population groups, and have been
coordinated and approved by the
Service, is excepted from the take
prohibitions under this proposed 4(d)
rule. Habitat restoration and
enhancement projects are needed to
increase nest site (cavity) availability;
improve habitat connectivity among
cactus ferruginous pygmy-owl
population groups; increase prey
availability; improve vegetation
structure and health; and decrease
nonnative species, watershed
degradation and erosion, and habitat
loss or reduction due to extreme
weather events and wildfire.
This proposed 4(d) rule excepts from
take prohibitions those habitat
restoration or enhancement activities
with the primary or secondary purpose
of improving cactus ferruginous pygmyowl habitat conditions across the
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subspecies’ geographical range. Specific
habitat restoration or enhancement
actions could include nest box
installation; establishment or protection
of nesting substrates (large trees or
columnar cacti) to increase the
availability of nest cavities; restoration
or enhancement of native vegetation
structure and species; control or
eradication of invasive, nonnative
species; riparian enhancement or
restoration; water developments;
watershed improvements; improved
habitat connectivity; and fire
management.
Prescribed fire within Sonoran Desert
vegetation communities is not excepted
in the proposed 4(d) rule. Fire can be an
effective tool in maintaining ecosystem
health, which is beneficial to the cactus
ferruginous pygmy-owl, but Sonoran
Desert vegetation communities are not
fire-adapted, and use of fire in these
vegetation communities must be
carefully implemented or important
pygmy-owl habitat elements can be lost
or altered. Therefore, because of the
risks associated with the loss or
alteration of pygmy-owl habitat, the use
of fire in Sonoran Desert vegetation
communities is not excepted from the
take prohibitions under this proposed
4(d) rule.
Woody vegetation communities
provide the most important pygmy-owl
habitat factors, particularly woodland
tree canopy cover. Pygmy-owl habitat is
not typically enhanced by actions that
would remove woodland tree cover.
Such actions would normally reduce
vegetation cover diversity, pygmy-owl
prey diversity, and important predator
avoidance and thermoregulatory cover
for the pygmy-owl. Therefore, any
action that would result in more than a
minimal reduction or removal of tree
cover (as determined during
coordination with the Service) is not
included under the habitat restoration
or enhancement take exception in the
proposed 4(d) rule.
Actions that promote the use of, or
encourage the growth of, nonnative
vegetation species are not exempted in
the proposed 4(d) rule. Nonnative
vegetation species can outcompete and
replace native species that provide
important habitat factors for the pygmyowl. This outcome is particularly true
when nonnative species form
monocultures, resulting in low diversity
and dense ground cover that alters
natural fire regimes and reduces pygmyowl prey diversity and availability.
In order to fall under the activities
included under the habitat restoration
or enhancement take exception in the
proposed 4(d) rule, those persons
implementing cactus ferruginous
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pygmy-owl habitat enhancement and
restoration activities need written
approval from the Service. Prior to
approving proposed activities, the
Service will coordinate with the
appropriate entities (land management
agencies, Tribal entities, private
landowners, etc.).
For all forms of allowable take in the
proposed 4(d) rule, reasonable care will
be practiced to minimize the impacts
from the actions. Reasonable care means
limiting the impacts to cactus
ferruginous pygmy-owl individuals and
populations by complying with all
applicable Federal, State, and Tribal
regulations for the activity in question;
using methods and techniques that
result in the least harm, injury, or death,
as feasible; undertaking activities at the
least impactful times (e.g., conducting
activities that might impact nesting
cactus ferruginous pygmy-owls or
nesting habitat only after nesting is
concluded for the year) and locations, as
feasible; procuring and implementing
technical assistance from a qualified
biologist on projects regarding all
methods prior to the implementation of
those methods; minimizing the number
of individuals disturbed in the existing
wild population; implementing best
management practices to ensure no
disease or parasites are introduced or
spread in pygmy-owl populations,
including the proper use of quarantine
and health evaluations; and preserving
the genetic diversity of wild
populations.
Permitting and Other Regulations To
Cover Take
We may issue permits to carry out
otherwise prohibited activities,
including those described above,
involving threatened wildlife under
certain circumstances. Regulations
governing permits are codified at 50
CFR 17.32. With regard to threatened
wildlife, a permit may be issued for the
following purposes: For scientific
purposes, to enhance propagation or
survival, for economic hardship, for
zoological exhibition, for educational
purposes, for incidental taking, or for
special purposes consistent with the
purposes of the Act. The statute also
contains certain exemptions from the
prohibitions, which are found in
sections 9 and 10 of the Act.
We recognize the special and unique
relationship with our State natural
resource agency partners in contributing
to conservation of listed species. State
agencies often possess scientific data
and valuable expertise on the status and
distribution of endangered, threatened,
and candidate species of wildlife and
plants. State agencies, because of their
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authorities and their close working
relationships with local governments
and landowners, are in a unique
position to assist the Service in
implementing all aspects of the Act. In
this regard, section 6 of the Act provides
that the Service shall cooperate to the
maximum extent practicable with the
States in carrying out programs
authorized by the Act. Therefore, any
qualified employee or agent of a State
conservation agency that is a party to a
cooperative agreement with the Service
in accordance with section 6(c) of the
Act, who is designated by his or her
agency for such purposes, would be able
to conduct activities designed to
conserve cactus ferruginous pygmy-owl
that may result in otherwise prohibited
take without additional authorization.
As described above, take can result by
direct and indirect impacts,
intentionally or incidentally. Section 7
of the Act regulates incidental take that
occurs incidental to otherwise lawful
activities, which have a nexus to a
Federal action agency. Section 7(a)(2) of
the Act requires Federal agencies,
including the Service, to ensure that any
action they fund, 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 Section 7 process helps to
conserve and recover the cactus
ferruginous pygmy-owl by evaluating
the potential of various activities to
adversely affect the cactus ferruginous
pygmy-owl. Section 7 consultations
ensure that Federal actions do not
jeopardize the continued existence of
the pygmy-owl and that proposed
project activities include appropriate
conservation measures or that
reasonable and prudent measures are
included to minimize the impacts of
incidental take that is anticipated to
result from implementing a project.
Nothing in this proposed 4(d) rule
would change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or the ability
of the Service to enter into partnerships
for the management and protection of
the cactus ferruginous pygmy-owl.
However, interagency cooperation may
be further streamlined through planned
programmatic consultations for the
species between Federal agencies and
the Service, where appropriate. We ask
the public, particularly State agencies
and other interested stakeholders that
may be affected by the proposed 4(d)
rule, to provide comments and
suggestions regarding additional
guidance and methods that the Service
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could provide or use, respectively, to
streamline the implementation of this
proposed 4(d) rule (see Information
Requested, above).
III. Critical Habitat
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).
Additionally, our regulations at 50 CFR
424.02 define the word ‘‘habitat,’’ for
the purposes of designating critical
habitat only, as the abiotic and biotic
setting that currently or periodically
contains the resources and conditions
necessary to support one or more life
processes of a species.
Conservation, as defined under
section 3 of the Act, means to use and
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
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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 also
does not allow the government or public
to access private lands. Such
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.
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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. The implementing regulations
at 50 CFR 424.12(b)(2) further delineate
unoccupied critical habitat by setting
out three specific parameters: (1) When
designating critical habitat, the
Secretary will first evaluate areas
occupied by the species; (2) the
Secretary will consider unoccupied
areas to be essential only where a
critical habitat designation limited to
geographical areas occupied by the
species would be inadequate to ensure
the conservation of the species; and (3)
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.
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.
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As the regulatory definition of
‘‘habitat’’ (50 CFR 424.02) reflects,
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
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 the 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 those planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as
amended, and implementing regulations
(50 CFR 424.12) require that, to the
maximum extent prudent and
determinable, the Secretary shall
designate critical habitat at the time the
species is determined to be an
endangered or threatened species. Our
regulations (50 CFR 424.12(a)(1)) state
that the Secretary may, but is not
required to, determine that a
designation would not be prudent in the
following circumstances:
(i) The species is threatened by taking
or other human activity and
identification of critical habitat can be
expected to increase the degree of such
threat to the species;
(ii) The present or threatened
destruction, modification, or
curtailment of a species’ habitat or range
is not a threat to the species, or threats
to the species’ habitat stem solely from
causes that cannot be addressed through
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management actions resulting from
consultations under section 7(a)(2) of
the Act;
(iii) Areas within the jurisdiction of
the United States provide no more than
negligible conservation value, if any, for
a species occurring primarily outside
the jurisdiction of the United States;
(iv) No areas meet the definition of
critical habitat; or
(v) The Secretary otherwise
determines that designation of critical
habitat would not be prudent based on
the best scientific data available.
As discussed earlier in this document,
there is currently no imminent threat of
collection or vandalism identified under
Factor B for this species, and
identification and mapping of critical
habitat is not expected to initiate any
such threat. In our SSA report and
proposed listing determination for the
cactus ferruginous pygmy-owl, we
determined that the present or
threatened destruction, modification, or
curtailment of habitat or range is a
threat to cactus ferruginous pygmy-owl
and that those threats in some way can
be addressed by section 7(a)(2)
consultation measures. Therefore,
because none of the circumstances
enumerated in our regulations at 50 CFR
424.12(a)(1) have been met and because
the Secretary has not identified other
circumstances for which this
designation of critical habitat would be
not prudent, we have determined that
the designation of critical habitat is
prudent for the cactus ferruginous
pygmy-owl.
Critical Habitat Determinability
Having determined that designation is
prudent, under section 4(a)(3) of the Act
we must find whether critical habitat for
the cactus ferruginous pygmy-owl is
determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is
not determinable when one or both of
the following situations exist:
(i) Data sufficient to perform required
analyses are lacking, or
(ii) The biological needs of the species
are not sufficiently well known to
identify any area that meets the
definition of ‘‘critical habitat.’’
When critical habitat is not
determinable, the Act allows the Service
an additional year to publish a critical
habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available
information pertaining to the biological
needs of the species and habitat
characteristics where this species is
located. Careful assessments of the
economic and environmental impacts
that may occur due to a critical habitat
designation are not yet complete, and
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we are in the process of working with
the States and other partners in
acquiring the complex information
needed to perform those assessments.
The information sufficient to perform a
required analysis of the impacts of the
designation is lacking. Therefore, we
conclude that the designation of critical
habitat for the cactus ferruginous
pygmy-owl is not determinable at this
time. As mentioned above, the Act
allows the Service an additional year to
publish a critical habitat designation
that is not determinable at the time of
listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) in connection with regulations
adopted pursuant to section 4(a) of the
Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244). This position was upheld
by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination with Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with Tribes in developing programs for
healthy ecosystems, to acknowledge that
Tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to Tribes.
We contacted the Ak Chin Indian
Community, Apache Tribe of Oklahoma,
Cocopah Indian Tribe, Comanche
Nation, Gila River Indian Community,
Hopi Tribe, Pascua Yaqui Tribe, San
Carlos Apache Tribe, Salt River PimaMaricopa Indian Community, Tohono
O’odam Nation, Tonkawa Tribe of
Indians, White Mountain Apache Tribe,
Wichita and Affiliated Tribes, and
Yavapai Apache Nation regarding the
SSA process by mail and invited them
to provide information and comments to
inform the SSA. Our interactions with
these Tribes are part of our governmentto-government consultation with Tribes
regarding the pygmy-owl and the Act.
The Tohono O’odham Nation was
invited to participate as a member of the
SSA team because they have historically
participated on issues related to the
cactus ferruginous pygmy-owl and they
have extensive acreage of pygmy-owl
habitat. They accepted the invitation
and have participated in development of
the SSA, as well as with pygmy-owls
surveys and monitoring. We will
continue to work with Tribal entities
during the rulemaking process.
References Cited
A complete list of references cited in
this rulemaking is available on the
internet at https://www.regulations.gov
and upon request from the Arizona
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed
rule are the staff members of the Fish
and Wildlife Service’s Species
Assessment Team and the Arizona
Ecological Services Field Office.
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List of Subjects in 50 CFR Part 17
50 of the Code of Federal Regulations,
as set forth below:
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
■
Proposed Regulation Promulgation
1. The authority citation for part 17
continues to read as follows:
§ 17.11 Endangered and threatened
wildlife.
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
*
Common name
*
*
Scientific name
*
*
Pygmy-owl, cactus ferruginous.
*
*
Glaucidium brasilianum
cactorum.
*
Special rules—birds.
*
*
*
*
*
(l) Cactus ferruginous pygmy-owl
(Glaucidium brasilianum cactorum). (1)
Prohibitions. The following prohibitions
that apply to endangered wildlife also
apply to cactus ferruginous pygmy-owl.
Except as provided under paragraphs
(l)(2) and (3) of this section and §§ 17.4,
17.5, and 17.7, it is unlawful for any
person subject to the jurisdiction of the
United States to commit, to attempt to
commit, to solicit another to commit, or
cause to be committed, any of the
following acts in regard to this species:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of commercial activity, as set
forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) General exceptions from
prohibitions. In regard to this species,
you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife, and
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16:13 Dec 21, 2021
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Status
*
BIRDS
*
Wherever found ............
*
3. As proposed to be amended at 83
FR 50560 (October 9, 2018), 85 FR
63474 (October 8, 2020), 86 FR 15855
(March 25, 2021), 86 FR 31668 (June 15,
2021), and 86 FR 41917 (August 4,
2021), § 17.41 is further amended by
adding paragraph (l) to read as follows:
§ 17.41
Where listed
*
■
khammond on DSKJM1Z7X2PROD with PROPOSALS
2. Amend § 17.11(h) by adding an
entry for ‘‘Pygmy-owl, cactus
ferruginous’’ to the List of Endangered
and Threatened Wildlife, in alphabetical
order under Birds, to read as follows:
■
*
Frm 00038
Fmt 4702
*
*
T
*
*
*
*
*
[Federal Register citation when published as a
final rule]; 50 CFR 17.41(l).4d
*
Sfmt 9990
*
Listing citations and applicable rules
(c)(6) and (7) for endangered migratory
birds.
(iii) Take as set forth at § 17.31(b).
(iv) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife, and (d)(3) and (4) for
endangered migratory birds.
(3) Exceptions from prohibitions for
specific types of incidental take. You
may take cactus ferruginous pygmy-owl
while carrying out the following legally
conducted activities in accordance with
this paragraph (l)(3):
(i) Educational and outreach
activities, provided the researcher
already holds an appropriate, valid
permit issued under part 21 of this
chapter, which governs species
protected under the Migratory Bird
Treaty Act, for educational activities
involving the use of live pygmy-owls,
pygmy-owl skins, or parts of pygmyowls or other raptors.
(ii) Habitat restoration and
enhancement activities and projects that
are approved by the Service prior to
commencing work.
(A) These activities and projects may
include activities that enhance cactus
ferruginous pygmy-owl habitat
conditions; improve habitat
connectivity; increase availability of
nest cavities; increase prey availability;
reduce invasive, nonnative plant
species; and enhance native plant
communities, particularly woodland
riparian communities.
(B) These activities and projects do
not include prescribed fire within
Sonoran Desert vegetation communities,
any actions that would result in more
than a minimal reduction or removal of
tree cover (as determined by the
PO 00000
*
*
(h) * * *
*
*
Service), and actions that use or
promote nonnative vegetation species.
(iii) For all forms of allowable take,
reasonable care must be practiced to
minimize the impacts from the actions.
Reasonable care means:
(A) Limiting the impacts to cactus
ferruginous pygmy-owl individuals and
populations by complying with all
applicable Federal, State, and Tribal
regulations for the activity in question;
(B) Using methods and techniques
that result in the least harm, injury, or
death, as feasible;
(C) Undertaking activities at the least
impactful times (e.g., conducting
activities that might impact nesting
cactus ferruginous pygmy-owls or
nesting habitat only after nesting is
concluded for the year) and locations, as
feasible;
(D) Procuring and implementing
technical assistance from a qualified
biologist on projects regarding all
methods prior to the implementation of
those methods;
(E) Minimizing the number of
individuals disturbed in the existing
wild population;
(F) Implementing best management
practices to ensure no diseases or
parasites are introduced into existing
cactus ferruginous pygmy-owl
populations; and
(G) Preserving the genetic diversity of
wild populations.
Martha Williams,
Principal Deputy Director, Exercising the
Delegated Authority of the Director, U.S. Fish
and Wildlife Service.
[FR Doc. 2021–27516 Filed 12–21–21; 8:45 am]
BILLING CODE 4333–15–P
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[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72547-72573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27516]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0098; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF25
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Cactus Ferruginous Pygmy-Owl
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the cactus ferruginous pygmy-owl (Glaucidium brasilianum
cactorum), a subspecies found in Mexico, southern Arizona, and southern
Texas, as a threatened species under the Endangered Species Act of
1973, as amended (Act). This determination also serves as our 12-month
finding on a petition to list the cactus ferruginous pygmy-owl. After a
review of the best available scientific and commercial information, we
find that listing the subspecies is warranted. Accordingly, we propose
to list the cactus ferruginous pygmy-owl as a threatened species with a
rule issued under section 4(d) of the Act (``4(d) rule''). If we
finalize this rule as proposed, it would add this subspecies to the
List of Endangered and Threatened Wildlife and extend the Act's
protections to the subspecies. The finalization of this rule as
proposed would include the issuance of a 4(d) rule. Designation of
critical habitat was found to be prudent, but not determinable at this
time. We also are notifying the public that we have scheduled an
informational meeting followed by a public hearing on the proposed
rule.
DATES: We will accept comments received or postmarked on or before
February 22, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date.
Public informational meeting and public hearing: We will hold a
public informational session from 4:00 p.m. to 5:30 p.m., Mountain
Standard Time, followed by a public hearing from 6:00 p.m. to 7:30
p.m., Mountain Standard Time, on January 25, 2022.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2021-0098, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Public informational meetings and public hearings: The public
informational meetings and the public hearings will be held virtually
using the Zoom platform. See Public Hearing, below, for more
information.
FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
9828 N 31st Ave., Phoenix, AZ, 85051; telephone 602-242-0210. Persons
who use a telecommunications device for the deaf (TDD) may call the
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the cactus ferruginous pygmy-owl meets the definition
of a threatened species; therefore, we are proposing to list it as
such. To the maximum extent prudent and determinable, we must designate
critical habitat for any species that we determine to be an endangered
or threatened species under the Act. Listing a species as an endangered
or threatened species and designation of critical habitat can be
completed only by issuing a rule.
[[Page 72548]]
What this document does. We propose to list the cactus ferruginous
pygmy-owl as a threatened species under the Act with a rule issued
under section 4(d) of the Act. As explained in this document, we find
that the designation of critical habitat for the cactus ferruginous
pygmy-owl is not determinable at this time.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
We have determined that threats to the cactus ferruginous pygmy-owl
include: (1) Habitat loss and fragmentation from urbanization, invasive
species, and agricultural or forest production; and (2) climate change
(effects from future changes in climate) and climate conditions
(effects from current and past climate), resulting in hotter, more arid
conditions throughout much of the subspecies' geographic range. The
proposed 4(d) rule would generally prohibit the same activities as
prohibited for an endangered species but would allow exemptions for
specific types of education and outreach activities already permitted
under a Migratory Bird Treaty Act permit and habitat restoration and
enhancement activities that improve habitat conditions for the cactus
ferruginous pygmy-owl.
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. As explained later in this
proposed rule, we find that the designation of critical habitat for the
cactus ferruginous pygmy-owl is not determinable at this time.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The subspecies' biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the subspecies, its
habitat, or both, and the effectiveness of such measures.
(2) Factors that may affect the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors. We are also
seeking information indicating where threats are disproportionately
affecting the cactus ferruginous pygmy-owl within specific portions of
its geographical range.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this subspecies and existing
regulations that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this subspecies,
including the locations of any additional populations of this
subspecies.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the cactus ferruginous pygmy-owl and
that the Service can consider in developing a 4(d) rule for the
subspecies. In particular, we are seeking information concerning the
extent to which we should include any of the section 9 prohibitions in
the 4(d) rule or whether we should consider any additional exceptions
from the prohibitions in the 4(d) rule. We encourage public and agency
comments related to our consideration of using the State permitting
process, if required, in the 4(d) rule as the basis of an exception to
the prohibitions on take related to certain pygmy-owl survey and
monitoring activities. We are also specifically seeking documentation
of the effects and benefits of properly managed grazing on cactus
ferruginous pygmy-owl habitat, as well as the threat of current and
historical improper grazing in both the United States and Mexico.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) Demographic information for the cactus ferruginous pygmy-owl,
including dispersal patterns, prey relationships, survival,
reproduction, sources of mortality, updated occurrence records, and
population trends;
(b) The amount and distribution of cactus ferruginous pygmy-owl
habitat, including habitat connectivity, patch size, geographic range,
and future climate change effects on the subspecies' habitat;
(c) Which areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the subspecies, should be included in the designation
and why;
(d) Any additional areas occurring within the range of the species,
[i.e., Yuma, Maricopa, Pinal, Pima, Santa Cruz, Cochise, Graham, Gila
counties in Arizona and Kleberg, Kenedy, Willacy, Cameron, Hidalgo,
Brooks, Jim Wells, Duval, Jim Hogg, Starr, Zapata, and Webb counties in
Texas], that should be included in the designation because they (1) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and may
require special management considerations, or (2) are unoccupied at the
time of listing and are essential for the conservation of the species;
(e) Special management considerations or protection that may be
needed in critical habitat areas, including managing for the potential
effects of climate change; and
(f) Which areas, not occupied at the time of listing, are essential
for the
[[Page 72549]]
conservation of the subspecies. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the subspecies; and
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the subspecies and contain at least one physical or
biological feature essential to the conservation of the species; and
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
Please include sufficient information with your submission (such as
scientific journal articles, research reports, survey results, maps, or
other publications) to allow us to verify any scientific or commercial
information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on any new information we receive (and any
comments on that new information), we may conclude that the subspecies
is endangered instead of threatened, or we may conclude that the
subspecies does not warrant listing as either an endangered species or
a threatened species. We may also conclude that the subspecies is not
warranted for listing rangewide, but is warranted in one of the
petitioned Distinct Population Segments (DPSs) (see Previous Federal
Actions, below). In addition, we may change the parameters of the
prohibitions or the exceptions to those prohibitions in the 4(d) rule
if we conclude it is appropriate in light of comments and new
information received. For example, we may expand the prohibitions to
include prohibiting additional activities if we conclude that those
additional activities are not compatible with conservation of the
species. Conversely, we may establish additional exceptions to the
prohibitions in the final rule if we conclude that the activities would
facilitate or are compatible with the conservation and recovery of the
species.
Public Hearing
We have scheduled a public informational meeting and public hearing
on this proposed rule to list the cactus ferruginous pygmy-owl as a
threatened species. We will hold the public informational meeting and
public hearing on the date and at the times listed above under Public
informational meeting and public hearing in DATES. We are holding the
public informational meeting and public hearing via the Zoom online
video platform and via teleconference so that participants can attend
remotely. For security purposes, registration is required. To listen
and view the meeting and hearing via Zoom, listen to the meeting and
hearing by telephone, or provide oral public comments at the public
hearing by Zoom or telephone, you must register. For information on how
to register, or if you encounter problems joining Zoom the day of the
meeting, visit https://www.fws.gov/southwest/. Registrants will receive
the Zoom link and the telephone number for the public informational
meeting and public hearing. If applicable, interested members of the
public not familiar with the Zoom platform should view the Zoom video
tutorials (https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational meeting and public
hearing. The public hearing will provide interested parties an
opportunity to present verbal testimony (formal, oral comments)
regarding this proposed rule. The public informational meeting will be
an opportunity for dialogue with the Service. The public hearing is a
forum for accepting formal verbal testimony. In the event there is a
large attendance, the time allotted for oral statements may be limited.
Therefore, anyone wishing to make an oral statement at the public
hearing for the record is encouraged to provide a prepared written copy
of their statement to us through the Federal eRulemaking Portal, or
U.S. mail (see ADDRESSES, above). There are no limits on the length of
written comments submitted to us. Anyone wishing to make an oral
statement at the public hearings must register before the hearing
(https://www.fws.gov/southwest/). The use of a virtual public hearing
is consistent with our regulations at 50 CFR 424.16(c)(3).
Reasonable Accommodation
The Service is committed to providing access to the public
informational meeting and public hearing for all participants. Closed
captioning will be available during the public informational meeting
and public hearing. Further, a full audio and video recording and
transcript of the public hearing will be posted online at https://www.fws.gov/southwest/ after the hearing. Participants will also have
access to live audio during the public informational meeting and public
hearing via their telephone or computer speakers. Persons with
disabilities requiring reasonable accommodations to participate in the
meeting and/or hearing should contact the person listed under FOR
FURTHER INFORMATION CONTACT at least 5 business days prior to the date
of the meeting and hearing to help ensure availability. An accessible
version of the Service's public informational meeting presentation will
also be posted online at https://www.fws.gov/southwest/ prior to the
meeting and hearing (see DATES, above). See https://www.fws.gov/southwest/ for more information about reasonable accommodation.
Previous Federal Actions
A thorough summary of previous Federal actions related to the
pygmy-owl can be found in the March 10, 1997, final rule (62 FR 10730)
to list the cactus ferruginous pygmy-owl in Arizona as endangered; the
April 14, 2006, final rule (71 FR 19452) removing the listing
promulgated in the March 10, 1997, final rule; the June 2, 2008, 90-day
finding (73 FR 31418); and the October 5, 2011, 12-month finding on a
petition to list (76 FR 61856).
On March 20, 2007, we received a petition dated March 15, 2007,
from the Center for Biological Diversity and Defenders of Wildlife
(CBD, DOW; petitioners) requesting that we list the cactus ferruginous
pygmy-owl (Glaucidium brasilianum cactorum) (pygmy-owl) as an
endangered or
[[Page 72550]]
threatened species under the Act (CBD and DOW 2007, entire). The
petitioners described three potentially listable entities of the pygmy-
owl: (1) An Arizona DPS of the pygmy-owl; (2) a Sonoran Desert DPS of
the pygmy-owl; and (3) the western subspecies of the pygmy-owl, which
they identified as Glaucidium ridgwayi cactorum. On October 5, 2011, we
published in the Federal Register (76 FR 61856) a 12-month finding on
the petition to list the pygmy-owl as endangered or threatened. We
found that Glaucidium ridgwayi cactorum was not a valid taxon and,
therefore, not a listable entity under the Act. Additionally, using the
currently accepted taxonomic classification of the pygmy-owl
(Glaucidium brasilianum cactorum), we found that listing the pygmy-owl
was not warranted throughout all or a significant portion of its range,
including the petitioned and other potential DPS configurations.
In 2014, the Center for Biological Diversity and Defenders of
Wildlife challenged our determination that listing the pygmy-owl was
not warranted under the Act (Ctr. For Biological Diversity v. Jewell,
248 F. Supp. 3d 946). The challenge centered on whether we had
correctly defined language in the Act authorizing listing of a species
that is endangered or threatened in either ``all or a significant
portion of its range'' (SPR). The plaintiffs challenged our final
policy interpreting this SPR language (SPR Policy) and how it was
applied in listing determinations. In its decision on March 28, 2017,
the court reasoned that ``if a portion of a species' range is
'significant' only 'if its contribution to the viability of the species
is so important that, without that portion, the species would be in
danger of extinction,' and the species is endangered or threatened in
that portion (as would be required for listing), then the species is
necessarily endangered or threatened overall'' (248 F.Supp.3d at 959).
The court thus found the SPR Policy invalid because it defined
``significant'' in such a way as to limit the SPR language to
situations in which it is unnecessary. The court vacated and remanded
the definition of ``significant'' in the SPR Policy. The not-warranted
finding for the cactus ferruginous pygmy-owl relied on a draft of this
SPR Policy, which was slightly different than the final policy. The
draft SPR Policy interpretation defined a range portion as
``significant'' ``if its contribution to the viability of the species
is so important that, without that portion, the species would be in
danger of extinction [i.e., endangered]'' (76 FR 76987, December 9,
2011; p. 77002). The court also found this interpretation of SPR
impermissible by limiting the SPR language to situations in which it is
unnecessary, and the court vacated our not-warranted finding for the
pygmy-owl. On November 14, 2019, the parties to the lawsuit agreed that
the Service would submit a 12-month finding to the Federal Register no
later than August 5, 2021. On July 6, 2021, the court granted an
extension to allow additional time to review new data provided by the
Arizona Game and Fish Department. The new deadline requires that the
Service submit the 12-month finding to the Federal Register no later
than December 16, 2021. This document complies with the court's
deadline.
Distinct Population Segment Analysis
Regarding the petitioned DPSs in Arizona and the Sonoran Desert
included in the 2007 petition, we reaffirm our October 5, 2011, 12-
month finding (76 FR 61856). Specifically, we considered a DPS for the
Sonoran Desert population of the pygmy-owl and concluded that this
population does not meet the discreteness conditions of the Service's
policy regarding the Recognition of Distinct Vertebrate Population
Segments Under the Endangered Species Act (61 FR 4722, February 7,
1996). We also considered a DPS for the Arizona population of the
pygmy-owl and concluded that, while the discreteness criteria for the
DPS were met, we could not show that this DPS was significant to the
taxon as a whole. For information regarding our rationale, please see
Analysis of Potential Distinct Population Segments in our previous 12-
month finding (76 FR 61856, October 5, 2011, pp. 61885-61889). We will
accept comments related to these DPS decisions during the public
comment period on this proposed rule (see DATES, above).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the cactus ferruginous pygmy-owl. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the subspecies, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the subspecies. In accordance with our joint
policy on peer review published in the Federal Register on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
sought the expert opinions of five appropriate specialists regarding
the SSA report. We received three responses. We also sent the SSA
report to 13 partners, including Tribes and scientists with expertise
in land management, pygmy-owl and raptor ecology, and climate science,
for review. We received review from 11 partners, including State and
Federal agencies, universities, and nonprofit organizations.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
cactus ferruginous pygmy-owl is presented in the SSA report. We
summarize this information here.
The cactus ferruginous pygmy-owl is a diurnal, nonmigratory
subspecies of ferruginous pygmy-owl (Glaucidium brasilianum) and is
found from central Arizona south to Michoac[aacute]n, Mexico, in the
west and from south Texas to Tamaulipas and Nuevo Leon, Mexico, in the
east. Pygmy-owls eat a variety of prey including birds, insects,
lizards, and small mammals, with the relative importance of prey type
varying throughout the year.
The pygmy-owl is a small bird, approximately 17 centimeters (cm)
(6.7 inches (in)) long. Generally, male pygmy-owls average 58 grams (g)
to 66 g (2.0 to 2.3 ounces (oz)) and females average 70 g to 75 g (2.4
to 2.6 oz). The pygmy-owl is reddish brown overall, with a cream-
colored belly streaked with reddish brown. The crown is lightly
streaked, and a pair of dark brown or black spots outlined in white
occurs on the nape, suggesting eyes (Oberholser 1974, p. 451). The
species lacks obvious ear tufts (Santillan et al. 2008, p. 154), and
the eyes are yellow. The tail is relatively long for an owl and is
reddish brown in color, with darker brown bars. Males have pale bands
between the dark bars on the tail, while females have darker reddish
bands between the dark bars.
Cactus ferruginous pygmy-owls are secondary cavity nesters, nesting
in cavities of trees and columnar cacti, with nesting substrate varying
throughout its range. Pygmy-owls can breed in their first year and
typically mate for life, with both sexes breeding annually. Clutch size
can vary from two to seven eggs with the female incubating the eggs for
28 days (Johnsgard 1988, p. 162; Proudfoot and Johnson 2000, p. 11).
Fledglings disperse from their natal sites about 8 weeks after they
fledge (Flesch and Steidl 2007, p. 36). Pygmy-owls live on average 3 to
5 years, but
[[Page 72551]]
have been documented to live 7 to 9 years in the wild (Proudfoot 2009,
pers. comm.) and 10 years in captivity (AGFD 2009, pers. comm.).
Pygmy-owls are found in a variety of vegetation communities,
including Sonoran desertscrub and semidesert grasslands in Arizona and
northern Sonora, thornscrub and dry deciduous forests in southern
Sonora south to Michoac[aacute]n, Tamaulipan brushland in northeastern
Mexico, and live oak forest in Texas. At a finer scale, the pygmy-owl
is a creature of edges found in semi-open areas of thorny scrub and
woodlands in association with giant cacti and in scattered patches of
woodlands in open landscapes, such as dry deciduous forests and
riparian communities along ephemeral, intermittent, and perennial
drainages (K[ouml]nig et al. 1999, p. 373). It is often found at the
edges of riparian and xeroriparian drainages and even habitat edges
created by villages, towns, and cities (Abbate et al. 1999, pp. 14-23;
Proudfoot and Johnson 2000, p. 5).
The taxonomy of Glaucidium is complicated and has been the subject
of much discussion and investigation. Following delisting of the pygmy-
owl in 2006 (71 FR 19452; April 14, 2006), the Service was petitioned
to relist the pygmy-owl (CBD and DOW 2007, entire). The petitioners
requested a revised taxonomic consideration for the pygmy-owl based on
Proudfoot et al. (2006a, p. 9; 2006b, p. 946) and K[ouml]nig et al.
(1999, pp. 160, 370-373), classifying the northern portion of
Glaucidium brasilianum's range as an entirely separate species, G.
ridgwayi and recognizing two subspecies of G. ridgwayi: G. r. cactorum
in western Mexico and Arizona and G. r. ridgwayi in eastern Mexico and
Texas. Other recent studies proposing or supporting the change to G.
ridgwayi for the northern portion of G. brasilianum's range have been
published in the past 20 years (Navarro-Sig[uuml]enza and Peterson
2004, p. 5; Wink et al. 2008, pp. 42-63; Enr[iacute]quez et al. 2017,
p. 15).
As we evaluated the cactus ferruginous pygmy-owl's current status,
we found that, although there is genetic differentiation at the far
ends of the pygmy-owl's distribution represented by Arizona and Texas,
there continues to be uncertainty in the southern portion of the range.
This area represents the boundary between the two proposed subspecies,
which raises the question of whether there is adequate data to support
a change in species classification and define the eastern and western
distributions as separate subspecies. While future work and studies may
clarify and resolve these issues, we will continue to use the currently
accepted distribution of G. brasilianum cactorum as described in the
1957 American Ornithologists' Union (now the American Ornithological
Society) checklist and various other publications (Friedmann et al.
1950, p. 145; Oberholser 1974, p. 452; Johnsgard 1988, p. 159; Millsap
and Johnson 1988, p. 137).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial
[[Page 72552]]
data regarding the status of the cactus ferruginous pygmy-owl,
including an assessment of the potential threats to the subspecies. The
SSA report does not represent a decision by the Service on whether the
subspecies should be proposed for listing as an endangered or
threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found under Docket No. FWS-R2-ES-2021-0098 at https://www.regulations.gov and at https://www.fws.gov/southwest/es/arizona/.
To assess the cactus ferruginous pygmy-owl's viability, we used the
three conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluate the individual species' life-
history needs. The next stage involves an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involves making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we use the best available information to characterize viability
as the ability of a species to sustain populations in the wild over
time. We use this information to inform our regulatory decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
cactus ferruginous pygmy-owl and its resources, and the threats that
influence the subspecies' current and future condition, in order to
assess the subspecies' overall viability and the risks to that
viability. The overall geographic range of the pygmy-owl is very large
(approximately 140,625 square miles [364,217 square kilometers]) and
covers two countries, the United States and Mexico. To assist in our
analysis, we divided the overall geographic range of the pygmy-owl into
five analysis units based upon biological, vegetative, political,
climatic, geographical, and conservation differences. The five analysis
units are: Arizona, northern Sonora, western Mexico, Texas, and
northeastern Mexico. We analyzed each of these analysis units
individually and looked at a combined outcome across the entire range
of the subspecies.
Threats
We reviewed the potential risk factors that could be affecting the
pygmy-owl now and in the future including: Climate change and climate
condition (Factor E), habitat loss and fragmentation (Factor A), human
activities and disturbance (Factors B and E), human-caused mortality
(Factors B and E), disease and predation (Factor C), and small
population size (Factor E). In this proposed rule, we will discuss only
those factors in detail that could meaningfully impact the status of
the subspecies. Those risks that are not known to have effects on
pygmy-owl populations, such as disease, are not discussed here but are
evaluated in the SSA report. The primary risk factors affecting the
current and future status of the pygmy-owl are: (1) Habitat loss and
fragmentation (Factor A), and (2) climate change and climate conditions
(Factor E). For a detailed description of the threats analysis, please
refer to the Species Status Assessment report (USFWS 2021, entire).
Habitat Loss and Fragmentation
Pygmy-owls require habitat elements, such as mature woodlands, that
include appropriate cavities for nest sites, adequate structural
diversity and cover, and a diverse prey base. Urbanization, invasive
species, and agricultural or forest production are all leading to a
reduction in the extent of habitat and an increase in habitat
fragmentation throughout the geographic range of the subspecies.
Urbanization
Urbanization causes permanent impacts on the landscape that
potentially result in the loss and alteration of pygmy-owl habitat.
Residential, commercial, and infrastructure development replace and
fragment areas of native vegetation resulting in the loss of available
pygmy-owl habitat and habitat connectivity needed to support pygmy-owl
dispersal and demographic support (exchange of individuals and rescue
effect) of population groups.
Urbanization can also have detrimental effects on wildlife habitat
by increasing the channelization or disruption of riverine corridors,
the proliferation of exotic species, and the fragmentation of remaining
patches of natural vegetation into smaller and smaller pieces that are
unable to support viable populations of native plants or animals (Ewing
et al. 2005, pp. 1-2; Nabhan and Holdsworth 1998, p. 2). Human-related
mortality (e.g., shooting, collisions, and predation by pets) also
increases as urbanization increases (Banks 1979, pp. 1-2; Churcher and
Lawton 1987, p. 439). Development of roadways and their contribution to
habitat loss and fragmentation is a particularly widespread impact of
urbanization (Nickens 1991, p. 1). Data from Arizona and Mexico
indicate that roadways and other open areas lacking cover affect pygmy-
owl dispersal (Flesch and Steidl 2007, pp. 6-7; Abbate et al. 1999, p.
54). Nest success and juvenile survival were also lower at pygmy-owl
nest sites closer to large roadways, suggesting that habitat quality
may be reduced in those areas (Flesch and Steidl 2007, pp. 6-7).
From 2010 to 2020, population growth rates increased in all Arizona
counties where the pygmy-owl occurs: Pima (9.3 percent); Pinal (25.7
percent); and Santa Cruz (13 percent) (OEO 2021, unpaginated). Many
cities and towns within the historical distribution of the pygmy-owl in
Arizona experienced substantial growth between April 2010 and July
2019: Casa Grande (20.7 percent); City of Eloy (17.8 percent); City of
Florence (7.7 percent); Town of Marana (41.9 percent); Town of Oro
Valley (12.2 percent); and the Town of Sahuarita (20.9 percent) (U.S.
Census Bureau 2021, unpaginated).Urban expansion and human population
growth trends in Arizona are expected to continue into the future. The
Maricopa-Pima-Pinal County areas of Arizona are expected to grow by as
much as 132 percent between 2005 and 2050, creating rural-urban edge
effects across thousands of acres of pygmy-owl
[[Page 72553]]
habitat (AECOM 2011, p. 13). Additionally, a wide area from the
international border in Nogales, through Tucson, Phoenix, and north
into Yavapai County (called the Sun Corridor ``Megapolitan'' Area) is
projected to have 11,297,000 people by 2050, a 132 percent increase
from 2005 (AECOM 2011, p. 13). If build-out occurs as expected, it will
encompass a substantial portion of the current and historical
distribution of the pygmy-owl in Arizona.
In Texas, the pygmy-owl occurred in good numbers until
approximately 90 percent of the mesquite-ebony woodlands of the Rio
Grande delta were cleared in 1910-1950 (Oberholser 1974, p. 452).
Currently, most of the pygmy-owl habitat occurs on private ranch lands
and therefore the threat of habitat loss and fragmentation of the
remaining pygmy-owl habitat due to urbanization is reduced. However,
urbanization and agriculture along the United State-Mexico border are
likely to continue to isolate the Texas population of pygmy-owls by
restricting movements between Texas and northeastern Mexico.
The United States-Mexico border region has a distinct demographic
pattern of permanent and temporary development related to warehouses,
exports, and other border-related activities, and patterns of
population growth in this area of northern Mexico has accelerated
relative to other Mexican States (Pineiro 2001, pp. 1-2). The Sonoran
border population has been increasing faster than that State's average
and faster than Arizona's border population; between 1990 and 2000, the
population in the Sonoran border municipios increased by 33.4 percent,
compared to Sonora's average (21.6 percent) and the average increase of
Arizona's border counties (27.8 percent). Urbanization has increased
habitat conversion and fragmentation, which, along with immigration,
population growth, and resource consumption, were ranked as the highest
threats to the Sonoran Desert Ecoregion (Nabhan and Holdsworth 1998, p.
1). This pattern focuses development, and potential barriers or
impediments to pygmy-owl movements, in a region that is important for
demographic support (immigration events and gene flow) of pygmy-owl
population groups, including movements such as dispersal. When looking
specifically at the United States-Mexico border region extending from
Texas to California, the human population is approximately 15 million
inhabitants and this population is expected to double by 2025 (HHS
2017, p. 1).
Significant human population expansion and urbanization in the
Sierra Madre foothill corridor may represent a long-term risk to pygmy-
owls in northeastern Mexico. From 2010 to 2015 the population in
Tamaulipas increased by 8 percent to 3,527,735 and the population in
Nuevo Le[oacute]n increased by 24 percent to 5,784,442 (DataMexico
2021, unpaginated). Such increasing urbanization results in the
permanent removal of pygmy-owl habitat reducing habitat availability
and, more significantly, increases habitat fragmentation affecting the
opportunity for pygmy-owl movements within northeastern Mexico and
between Mexico and Texas. Habitat removal in northeastern Mexico is
widespread and nearly complete in northern Tamaulipas (Hunter 1988, p.
8). Demographic support (rescue effect) of pygmy-owl population groups
is threatened by ongoing loss and fragmentation of habitat in this
area. Urbanization has the potential to permanently alter the last
major landscape linkage between the pygmy-owl population in Texas and
those in northeastern Mexico (Tewes 1993, pp. 28-29).
Human population growth in Sinaloa, Nayarit, Colima, and Jalisco,
Mexico are relatively slow compared to Sonora and northeastern Mexico.
From 2010 to 2015, the population in Sinaloa grew at a rate of 9.3
percent, Nayarit grew at a rate of 13.9 percent, Jalisco grew at a rate
of 13.6 percent, and Colima grew at a rate of 12.4 percent (DataMexico
2021, unpaginated). These areas of Mexico are not experiencing the very
high growth rates of Sonora and other border regions of Mexico, but
will likely have some concurrent spread of urbanization. In addition,
most of the growth is taking place in the large cities, and rather than
in the rural areas that likely support pygmy-owl habitat (Brinkhoff
2016, unpaginated). However, these Mexican states have other threats to
pygmy-owl habitat occurring such as agricultural development and
deforestation that, in combination with habitat lost to urbanization,
represent threats to the continued viability of the pygmy-owl in this
area.
Invasive Species
The invasion of nonnative vegetation, particularly nonnative
grasses, has altered the natural fire regime over the Sonoran Desert
ecoregion of the pygmy-owl range (Esque and Schwalbe 2002, p. 165). In
areas comprised entirely of native species, ground vegetation density
is mediated by barren spaces that do not allow fire to carry across the
landscape. However, in areas where nonnative species have become
established, the fine fuel load is continuous, and fire is capable of
spreading quickly and efficiently (Esque and Schwalbe 2002, p. 175). As
a result, fire has become a significant threat to the native vegetation
of the Sonoran Desert.
Nonnative annual plants prevalent within the Sonoran range of the
pygmy-owl include Bromus rubens and B. tectorum (brome grasses),
Schismus spp. (Mediterranean grasses), and Sahara mustard (Brassica
tournefortii) (Esque and Schwalbe 2002, p. 165; ASDM 2021, entire).
However, the nonnative species that is currently the greatest threat to
vegetation communities in Arizona and northern Sonora, Mexico is the
perennial Cenchrus ciliaris (buffelgrass), which is prevalent and
increasing throughout much of the Sonoran range of the pygmy-owl
(Burquez and Quintana 1994, p. 23; Van Devender and Dimmit 2006, p. 5).
Buffelgrass is not only fire-tolerant (unlike native Sonoran Desert
plant species), but is actually fire-promoting (Halverson and Guertin
2003, p. 13). Invasion sets in motion a grass-fire cycle where
nonnative grass provides the fuel necessary to initiate and promote
fire. Nonnative grasses recover more quickly than native grass, tree,
and cacti species and cause a further susceptibility to fire (D'Antonio
and Vitousek 1992, p. 73; Schmid and Rogers 1988, p. 442). While a
single fire in an area may or may not produce long-term reductions in
plant cover or biomass, repeated wildfires in a given area, due to the
establishment of nonnative grasses, are capable of ecosystem type-
conversion from native desertscrub to nonnative annual grassland. These
repeated fires may render the area unsuitable for pygmy-owls and other
native wildlife due to the loss of trees and columnar cacti, and
reduced diversity of cover and prey species (Brooks and Esque 2002, p.
336).
The distribution of buffelgrass has been supported and promoted by
governments on both sides of the United States-Mexico border as a
resource to increase range productivity and forage production. A 2006
publication estimates that 1.8 million ha (4.5 million ac) have been
converted to buffelgrass in Sonora, and that between 1990 and 2000,
there was an 82 percent increase in buffelgrass coverage (Franklin et
al. 2006, pp. 62, 66). Following establishment, buffelgrass fuels fires
that destroy Sonoran desertscrub, thornscrub, and, to a lesser extent,
tropical deciduous forest; the disturbed areas are quickly converted to
open savannas composed entirely of buffelgrass which removes pygmy-owl
nest substrates and generally renders
[[Page 72554]]
areas unsuitable for future occupancy by pygmy-owls. Buffelgrass is now
fully naturalized in most of Sonora, southern Arizona, and some areas
in central and southern Baja California (Burquez-Montijo et al. 2002,
p. 131), and now commonly spreads without human cultivation (Arriaga et
al. 2004, pp. 1509-1511; Perramond 2000, p. 131; Burquez et al. 1998,
p. 26).
Similar issues occur in Texas. Buffelgrass is now one of the most
abundant nonnative grasses in South Texas, and a prevalent invasive
grass within the range of the pygmy-owl. During the 1950's, federal and
state land management agencies promoted buffelgrass as a forage grass
in South Texas (Smith 2010, p. 113). Buffelgrass is very well adapted
to the hot, semi-arid climate of South Texas due to its drought
resistance and ability to aggressively establish in heavily grazed
landscapes (Smith 2010, p. 113). Despite increasing awareness of the
ecological damage caused by nonnative grasses, buffelgrass is still
planted in areas affected by drought and overgrazing to stabilize soils
and to increase rangeland productivity. Prescribed burning used for
brush control typically promotes buffelgrass forage production in South
Texas (Hamilton and Scifres 1982, p. 11). Buffelgrass often creates
homogeneous monocultures by out-competing native plants for essential
resources (Lyons et al. 2013, p. 8). Furthermore, buffelgrass produces
phytotoxins in the soil that inhibit the growth of neighboring native
plants (Vo 2013, unpaginated). With regard to pygmy-owl habitat, the
loss of trees and canopy cover and the creation of dense ground cover
resulting from buffelgrass conversion reduces nest cavity availability,
cover for predator avoidance and thermoregulation, and prey
availability. Overall, buffelgrass is the dominant herbaceous cover on
10 million ha in southern Texas and northeastern Mexico (Wied et al.
2020, p. 47).
The impacts of buffelgrass establishment and invasion are
substantial for the pygmy-owl in the United States and Mexico because
conversion results in the loss of important habitat features,
particularly columnar cacti and trees that provide nest sites.
Buffelgrass invasion and the subsequent fires eliminate most columnar
cacti, trees, and shrubs of the desert (Burquez-Montijo et al. 2002, p.
138). This elimination of trees, shrubs, and columnar cacti from these
areas is a potential threat to the survival of the pygmy-owl in the
northern part of its range, as these vegetation components are
necessary for roosting, nesting, protection from predators, and thermal
regulation. Invasion and conversion to buffelgrass also negatively
affect the diversity and availability of prey species in these areas
(Franklin et al. 2006, p. 69; Avila-Jimenez 2004, p. 18; Burquez-
Montijo et al. 2002, pp. 130, 135).
Buffelgrass is adapted to dry, arid conditions and does not grow in
areas with high rates of precipitation or high humidity, above
elevations of 1,265 m (4,150 ft), or in areas with freezing
temperatures. Areas that support pygmy-owls south of Sonora and
northern Sinaloa typically are wetter and more humid, and the best
available information does not indicate that buffelgrass is invading
the southern portion of the pygmy-owl's range. Surveys completed in
Sonora and Sinaloa in 2006 noted buffelgrass was present in Sonora and
northern Sinaloa, but the more southerly locations were noted as sparse
or moderate (Van Devender and Dimmitt 2006, p. 7). As such, this
nonnative species only affects the northern parts of the pygmy-owl's
range.
Agricultural Production and Wood Harvesting
Agricultural development and wood harvesting can result in
substantial impacts to the availability and connectivity of pygmy-owl
habitat. Conversion of native vegetation communities to agricultural
fields or pastures for grazing has occurred within historical pygmy-owl
habitat in both the United States and Mexico, and not only removes
existing pygmy-owl habitat elements, but also can affect the long-term
ability of these areas to return to native vegetation communities once
agricultural activities cease. Wood harvesting has a direct effect on
the amount of available cover and nest sites for pygmy-owls and is
often associated with agricultural development. Wood harvesting also
occurs to supply firewood and charcoal, and to provide material for
cultural and decorative wood carvings.
In Arizona, although new agricultural development is limited, the
effects to historical habitat are still evident. Many areas that
historically supported meso- and xeri-riparian habitat have been
converted to agricultural lands and associated groundwater pumping has
affected the hydrology of these valleys (Jackson and Comus 1999, pp.
233, 249). These riparian areas are important pygmy-owl habitat,
especially within drier upland vegetation communities like Sonoran
desertscrub and semi-desert grasslands.
Habitat fragmentation as a result of agricultural development has
also occurred within Texas. Brush clearing, pesticide use, and
irrigation practices associated with agriculture have had detrimental
effects on the Lower Rio Grande Valley (Jahrsdoerfer and Leslie 1988,
p. 1). From the 1920's until the early 1970's, over 90 percent of
pygmy-owl habitat in the Lower Rio Grande Valley of Texas was cleared
for agricultural and urban expansion (Oberholser 1974, p. 452). The
Norias Division of the King Ranch in southern Texas has been isolated
by agricultural expansion, which has restricted pygmy-owl dispersal
(Oberholser 1974). This has resulted in loss of pygmy-owl habitat
connectivity between pygmy-owl population groups in Texas and in
Mexico. Historically, agriculture in Sonora, Mexico, was restricted to
small areas with shallow water tables, but it had, nonetheless,
seriously affected riparian areas by the end of the nineteenth century.
For example, in the Rio Mayo and Rio Yaqui coastal plains, nearly one
million ha (2.5 million ac) of mesquite, cottonwood, and willow
riparian forests and coastal thornscrub disappeared after dams upriver
started to operate (Burquez and Martinez-Yrizar 2007, p. 543).
Other Mexican states within the range of the pygmy-owl show similar
potential for habitat loss. For example, in Tamaulipas, area under
irrigation increased from 174,400 to 494,472 ha (431,000 to 1.22
million ac) between 1998 and 2004, with an area of 668,872 ha (1.65
million ac) equipped for irrigation. However, agricultural development
in the States of Colima, Jalisco, Nayarit, and Nuevo Leon had
substantial decreases in the amount of irrigated lands over the same
period (FAO 2007, unpaginated). Although land continues to be converted
to agriculture within the geographic range of the pygmy-owl, we do not
know if the areas being converted currently support pygmy-owl habitat.
Continuing destruction of pygmy-owl habitat for agricultural production
is not occurring with the same intensity throughout the range of the
pygmy-owl, and the area in agricultural production may be declining in
some parts of its southern range.
Wood harvesting is also a potential threat to pygmy-owl habitat.
Ironwood (Olneya tesota) and mesquite (Prosopis spp.) are harvested
throughout the Sonoran Desert for use as charcoal, fuelwood, and
carving (Burquez and Martinez Yrizar 2007, p. 545). For instance, by
1994, 202,000 ha (500,000 ac) of mesquite had been cleared in northern
Mexico to meet the growing demand for mesquite charcoal (Haller 1994,
p. 1). Unfortunately, woodcutters
[[Page 72555]]
and charcoal makers utilize large, mature mesquite and ironwood trees
growing in riparian areas (Taylor 2006, p. 12), which is the tree class
that is of most value as pygmy-owl habitat. Loss of leguminous trees
results in long-term effects to the soil as they add organic matter,
fix nitrogen, and add sulfur and soluble salts, affecting overall
habitat quality and quantity (Rodriguez Franco and Aguirre 1996, p. 6-
47). Ironwood and mesquite trees are important nurse species for
saguaros, the primary nesting substrate for pygmy-owls in the northern
portion of their range (Burquez and Quintana 1994, p. 11). Declining
tree populations in the Sonoran Desert as a result of commercial uses
and land conversion threatens other plant species and may alter the
structure and composition of the vertebrate and invertebrate
communities as well (Bestelmeyer and Schooley 1999, p. 644). This has
implications for pygmy-owl prey availability because pygmy-owls rely on
a seasonal diversity of vertebrate and invertebrate prey species; loss
of tree structure and diversity reduces prey diversity and
availability.
Once common in areas of the Rio Grande delta, significant habitat
loss and fragmentation due to woodcutting have now caused the pygmy-owl
to be a rare occurrence in this area of Texas. Oberholser (1974, p.
452) concluded that agricultural expansion and subsequent loss of
native woodland and thornscrub habitat, begun in the 1920's, preceded
the rapid demise of pygmy-owl populations in the Lower Rio Grande
Valley of southern Texas. Because much of the suitable pygmy-owl
habitat in Texas occurs on private ranches, habitat areas are subject
to potential impacts that are associated with ongoing ranch activities
such as grazing, herd management, fencing, pasture improvements,
construction of cattle pens and waters, road construction, and
development of hunting facilities. Brush clearing, in particular, has
been identified as a potential factor in present and future declines in
the pygmy-owl population in Texas (Oberholser 1974, p. 452). However,
relatively speaking, the current loss of habitat is much reduced in
comparison to the historical loss of habitat in Texas. Conversely,
ranch practices that enhance or increase pygmy-owl habitat to support
ecotourism can contribute to conservation of the pygmy-owl in Texas
(Wauer et al. 1993, p. 1076). The best available information does not
indicate that current ranching practices are significantly affecting
pygmy-owl habitat in Texas.
Habitat fragmentation in northeastern Mexico is extensive, with
only about two percent of the ecoregion remaining intact, and no
habitat blocks larger than 250 square km (96.5 square mi), and no
significant protected areas (Cook et al. 2000, p. 4). Fire is often
used to clear woodlands for agriculture in this area of Mexico, and
many of these fires are not adequately controlled. There may be fire-
extensive related effects to native plant communities (Cook et al.
2000, p. 4); however, there is no available information of how much
area may be affected by this activity.
Areas of dry subtropical forests, important habitat for pygmy-owls
in southwestern Mexico, have been used by humans through time for
settlement and various other activities (Trejo and Dirzo 2000, p. 133).
The long-term impact of this settlement has converted these dry
subtropical forests into shrublands and savannas lacking large trees,
columnar cacti, and cover and prey diversity that are important pygmy-
owl habitat elements. In Mexico, dry tropical forest is the major type
of tropical vegetation in the country, covering over 60 percent of the
total area of tropical vegetation. About 8 percent (approximately
160,000 square km (61,776 square mi)) of this forest remained intact by
the late 1970s, and an assessment made at the beginning of the present
decade suggested that 30 percent of these tropical forests have been
altered and converted to agricultural lands and cattle grasslands
(Trejo and Drizo 2000, p. 134). However, the best available information
indicates that there are still expanses of dry tropical forest along
the Pacific coast in Mexico, including some areas below 1,200 m (4,000
ft) where pygmy-owls are found.
Summary of Habitat Loss and Fragmentation
In summary, pygmy-owls require habitat elements such as mature
woodlands that include appropriate cavities for nest sites, adequate
structural diversity and cover, and a diverse prey base. These habitat
elements need to be available across the geographic range of the pygmy-
owl and spatially arranged to allow connectivity between habitat
patches. Pygmy-owl habitat loss and fragmentation are affecting pygmy-
owl viability throughout its range. These threats vary in scope and
intensity throughout the pygmy-owl's geographic range and specific
threats are a more significant issue in certain parts of the range than
in others. For example, in Arizona and Northern Sonoran, pygmy-owl
habitat loss and fragmentation resulting from urbanization, changing
fire regimes due to the invasion of buffelgrass, and agricultural
development and woodcutting are significant threats that have
negatively affected pygmy-owl habitat. In Texas, historical loss of
habitat has reduced the pygmy-owl range, but current impacts are
reduced from historical levels in their magnitude and severity.
However, in Texas and other areas of the pygmy-owl's range, these past
impacts continue to affect the current extent of available pygmy-owl
habitat, because of the extended time it takes for these lands to
recover. Therefore, even if habitat destruction ceases, the negative
effects of past land use are expected to continue in many of these
areas into the future.
For the remainder of the pygmy-owl's range and habitat in Mexico
(northeastern Mexico and south of Sonora), data available for our
analysis were limited. The rate of growth in these southern Mexican
States appears to be lower than in Sonora and the Arizona border
region. Historical loss of pygmy-owl habitat in northeastern Mexico has
occurred, but the extent to which significant habitat destruction is
currently taking place is not available. In addition, pygmy-owls are
still considered common in the southern part of their range (Enriquez-
Rocha et al. 1993, p. 154; Cartron et al. 2000, p. 5; GBIF 2020).
This information indicates that the impacts to pygmy-owl habitat
discussed herein may be having different levels of effects on the
populations of pygmy-owls throughout their range, and habitat effects
may not have the impacts to pygmy-owl population groups in the southern
portion of the pygmy-owl's range due to increased pygmy-owl numbers.
Nonetheless, Enr[iacute]quez and Vazquez-Perez (2017, p. 546) indicate
that during the last 50 years, Mexico has seen drastic changes in land
uses due to rapid urbanization and industrialization, which has been
poorly planned. The result has been impacts to the natural environment,
including the degradation and loss of biological diversity in Mexico.
There has been limited work in Mexico, however, to understand what the
direct impacts of these threats are on owl population losses and
changes in distribution and abundance of subspecies in long term
(Enr[iacute]quez and Vazquez-Perez 2017, p. 546).
Climate Change and Climate Conditions
Climate change projections within the geographic range of the
pygmy-owl show that increasing temperatures, decreasing precipitation,
and increase intensity of weather events are likely
[[Page 72556]]
(Karmalkar et al. 2011, entire; Bagne and Finch 2012, entire; Coe et
al. 2012, entire; and Jiang and Yang 2012, entire). Climate influences
pygmy-owl habitat conditions and availability through the loss of
vegetation cover, reduced prey availability, increased predation,
reduced nest site availability, and vegetation community change. The
majority of the current range of the pygmy-owl occurs in tropical or
subtropical vegetation communities, which may be reduced in coverage if
climate change results in hotter, more arid conditions. Additionally,
models predict that the distribution of suitable habitat for saguaros,
the primary pygmy-owl nesting substrate within the Sonoran Desert
ecoregion, will substantially decrease over the next 50 years under a
moderate climate change scenario (Weiss and Overpeck 2005, p. 2074;
Thomas et al. 2012, p. 43). Climate change scenarios project that
drought will occur more frequently and increase in severity, with a
decrease in the frequency and increase in severity of precipitation
events (Seager et al. 2007, p. 9; Cook et al. 2015, p. 6; Pascale et
al. 2017, p. 806; Williams et al. 2020, p. 317). Drought and changes to
the timing and intensity of precipitation events may reduce available
cover and prey for pygmy-owls adjacent to riparian areas through
scouring flood events and reduced moisture retention. Although the
extent to which changing climatic patterns will affect the pygmy-owl is
better understood following the past decade of observations in the
field, there remains uncertainty with regard to the overall extent and
timing of impacts.
Synergistic interactions are likely to occur between the effects of
climate change and habitat fragmentation and loss. Climate change
projections indicate that conditions will likely favor increased
occurrence and distribution of nonnative, invasive species and
alteration of historical fire regimes. Climate change may also affect
the viability of the pygmy-owl through precipitation-driven changes in
plant and insect biomass, which in turn influence abundance of lizards,
small mammals, and birds (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch
et al. 2015, p. 26). Decreased precipitation generally reduces plant
cover and insect productivity, which in turn reduce the abundance and
availability of pygmy-owl prey species. Similarly, increased
temperatures reduce pygmy-owl prey activity due to increased energetic
demands of thermoregulation and a decreased availability of prey and
cover (Flesch et al. 2015, p. 26). These indirect effects on prey
availability and direct effects on prey activity affect nestling
growth, development, and survival. When decreased precipitation affects
food supply and increased temperature affects prey activity, reduced
pygmy-owl productivity is likely to result in reduced pygmy-owl
resiliency (Flesch et al. 2015, p. 26). Climate change can also
influence natural events, such as hurricanes and tropical storms, which
can modify and fragment habitats, primarily through loss of woody
cover. Historical and ongoing threats to the pygmy-owl from habitat
loss and fragmentation as well as from climate change and climate
conditions, have shaped the current habitat and population conditions
of the subspecies throughout its range.
Current Condition
To assess resiliency, we evaluated six components that broadly
related to the subspecies' population demography or physical
environment and for which we had data sufficient to conduct the
analysis. We assessed each analysis unit's physical environment by
examining three components determined to have the most influence on the
subspecies: Habitat intactness, prey availability, and vegetation
health and cover. We also assessed each analysis unit's demography
through abundance, occupancy, and evidence of reproduction. We
established parameters for each component by evaluating the range of
existing data and separating those data into categories based on our
understanding of the subspecies' demographics and habitat. Using the
demographic and habitat parameters, we then categorized the overall
condition of each analysis unit. We provide a summary of each of the
six factors below and describe them in detail in the SSA report
(Service 2021, entire).
Demographic Factors
Abundance: Larger populations have a lower risk of extinction than
smaller populations (Pimm et al. 1988, pp. 773-775; Trombulak et al.
2004, p. 1183). In contrast, small populations are less resilient and
more vulnerable to the effects of demographic, environmental, and
genetic stochasticity, and have a higher risk of extinction than larger
populations (Trombulak et al. 2004, p. 1183). Small populations may
experience increased inbreeding, loss of genetic variation, and
ultimately a decreased potential to adapt to environmental change
(Trombulak et al. 2004, p. 1183; Harmon and Braude 2010, p. 125; Benson
et al. 2016, pp. 1-2). The abundance of pygmy-owls within each analysis
unit must be high enough to support persistence of pygmy-owl population
groups (multiple breeding pairs of pygmy-owls within relatively
discrete geographic areas) within the analysis unit. This is
accomplished by having adequate patches of habitat to support multiple
nesting pairs of pygmy-owls and their offspring, have adequate habitat
connectivity to support establishment of additional territories by
dispersing young, and supply floaters (unpaired individuals of breeding
age) within each pygmy-owl population group to offset loss of breeding
adults and to provide potential mates for dispersing juveniles.
Occupancy: Sufficiently resilient pygmy-owl populations must occupy
large enough areas such that stochastic events and environmental
fluctuations that affect individual pygmy-owls, or population group of
pygmy-owls, do not eliminate the entire population. Pygmy-owls are
patchily distributed across the landscape in population groups of
nesting owls. Each of these population groups must be occupied by large
enough numbers of pygmy-owls to enable the population group to persist
on the landscape over time. Enough occupied population groups of pygmy-
owls must also exist on the landscape, with interconnected habitat
supporting movement among population groups, so that each population
group can receive or exchange individuals with any given adjacent
population group.
Pygmy-owl occupancy is an indicator of habitat conditions as well
as demographic factors, such as reproduction and survival. Habitats
that support large numbers of pygmy-owls are better able to provide
floaters and available mates to dispersing pygmy-owls from adjacent
populations. These floaters are able to serve as replacement breeders
if either or both members of an existing breeding pair are lost.
Observations indicate that if a site is occupied by a breeding pair,
they will breed. Survival of adults also affects occupancy, as some
occupied sites will be abandoned if one of the adult breeders perishes.
These sites can be reoccupied in the future when floaters or dispersing
birds move into the area.
Evidence of reproduction: Resilient pygmy-owl populations must also
reproduce and produce a sufficient number of young such that
recruitment equals or exceeds mortality. Current population size and
abundance reflects previous influences on the population and habitat,
while reproduction and recruitment reflect population trends that may
be stable, increasing, or decreasing in the future. Adequately
resilient populations of the pygmy-owl must have sufficient numbers of
[[Page 72557]]
individuals to replace members of breeding pairs that have been lost
and to support persistent population groups of nesting pygmy-owls
through dispersal. However, the necessary reproductive rate needed for
a self-sustaining population is unknown. Additionally, key demographic
parameters of pygmy-owl populations (e.g., survival, life expectancy,
lifespan, productivity, etc.) are unknown throughout most of the
geographic range. Due to the lack of information on demographic
parameters of reproduction, recruitment, and survival, we broadly
considered evidence of reproduction to include any evidence of
reproduction (e.g., active nests, presence of eggs or nestlings,
fledglings, etc.), as well as persistence of occupied territories and
population groups in an area over a sufficient amount of time to
indicate evidence of reproduction. Thus, evidence of reproduction on a
consistent basis over time likely indicates a sufficiently resilient
population.
Habitat intactness: Adequately resilient pygmy-owl populations need
intact habitat that is large enough to support year-round occupancy, as
well as connectivity between habitat patches to enable dispersal.
Pygmy-owls are patchily distributed across much of their geographic
range. These pygmy-owl population groups are dependent on interchange
of individuals in order to maintain adequate numbers and genetic
diversity on the landscape. Habitat connectivity is crucial to
maintaining pathways for the interchange of individuals among pygmy-owl
population groups.
Prey availability: Adequate prey availability is a key component
for maintaining resiliency in pygmy-owl populations. Year-round prey
availability is essential throughout the range of the pygmy-owl, with
portions of the geographic range characterized by seasonal variability
in available prey resources. The abundance of many of these prey
species is influenced by annual and seasonal precipitation through
increases and decreases in vegetation cover and diversity, which also
influences insect abundance and availability. Sufficiently resilient
pygmy-owl populations require adequate precipitation to support year-
round prey availability. This includes appropriately timed
precipitation to support seasonally available prey such as lizard,
insects, and small mammals.
Vegetation cover: Sufficiently resilient pygmy-owl populations
require adequate vegetation to provide cover for predator avoidance,
thermoregulation, hunting, and nest cavities. Of primary importance for
cover is the presence of woody vegetation canopy. Maintenance of the
health and vigor of this woody cover is a key component to maintaining
resiliency of pygmy-owl populations.
Summary of Current Condition of the Subspecies
Currently, the cactus ferruginous pygmy-owl occurs from southern
Arizona, south to Michoac[aacute]n in the western portion of its range,
and from southern Texas to Tamaulipas and Nuevo Leon in the eastern
portion of its range. For our analysis, we divided the pygmy-owl's
overall range into five analysis units: Arizona, northern Sonora,
western Mexico, Texas, and northeastern Mexico (see Figure 1, below).
The primary factors currently affecting the condition of cactus
ferruginous pygmy-owl populations include climate conditions, and
habitat fragmentation and loss.
Resiliency
The Arizona analysis unit currently has the lowest pygmy-owl
abundance of all analysis units, which is estimated to be in the low
hundreds. Habitat fragmentation and loss from urbanization and
increases in invasive species such as buffelgrass, have reduced the
availability and connectivity of habitat in this analysis unit.
Additionally, climate conditions have reduced prey availability and
vegetative cover through increased temperatures and drought. These
factors result in a reduced capacity for this analysis unit to
withstand stochastic events and result in a low resiliency currently.
The northern Sonora analysis unit has an estimated pygmy-owl
abundance in the high hundreds. However, this analysis unit is affected
by habitat fragmentation from urbanization, agricultural development,
and associated infrastructure. These stressors increase water use and,
in conjunction with climate conditions, result in a reduction in the
quality and availability of pygmy-owl habitat. Due to moderate owl
abundance and some decrease in habitat availability and connectivity,
the northern Sonora analysis unit has a moderate level of population
resiliency.
The western Mexico analysis unit is estimated to have tens of
thousands of pygmy-owls. This analysis unit has some habitat
fragmentation from urbanization, agricultural development, and
deforestation of the tropical deciduous forests. Overall, the western
Mexico analysis unit has high population resiliency due to high
abundance of pygmy-owls and healthy vegetation cover, likely as a
result of high levels of precipitation in the region.
The Texas analysis unit has an estimated pygmy-owl abundance in the
high hundreds. Land ownership within this analysis unit has resulted in
habitat fragmentation and, due to agricultural development and wood
harvesting within the Rio Grande Valley, this analysis unit is somewhat
genetically isolated from the rest of the geographic range of the
subspecies. Due to moderate pygmy-owl abundance, fragmentation of
habitat, and some genetic isolation, the Texas analysis unit has a
moderate level of population resiliency.
The northeast Mexico analysis unit is estimated to have tens of
thousands of pygmy-owls. However, this unit has high levels of habitat
fragmentation due to urbanization and agricultural development.
Overall, the northeast Mexico analysis unit has a moderate level of
population resiliency with some capacity to withstand stochastic
events. Rangewide, current condition of the pygmy-owl populations
indicate that three analysis units are maintaining a moderate level of
population resiliency, one analysis has low resiliency, and one
analysis unit has high resiliency.
Representation
Resiliency, and the factors that drive resiliency, also contribute
to the pygmy-owl's representation on the landscape. Pygmy-owls occupy a
diversity of habitat types throughout the geographic range of the
subspecies and maintain substantial genetic diversity. The subspecies'
adaptive potential (representation) is currently high due to genetic
and ecological variability across the range. There is substantial
genetic diversity across the range (Proudfoot et al. 2006a, entire;
2006b, entire) due to isolation-by-distance and geographic barriers.
Additionally, across the range, the pygmy-owl occupies a diverse range
of ecological settings as a result of geographic gradients of
vegetation, climate, elevation, topography, and other landscape
elements. Such ecological diversity could help the pygmy-owl adapt to
and survive future environmental changes, such as warming temperatures
or decreased precipitation from climate change.
Redundancy
We assessed the number and distribution of populations across the
pygmy-owl's geographic range as a measure of its redundancy. While the
numbers and densities of pygmy-owls are lower in some analysis units,
these portions of the range still contribute in
[[Page 72558]]
a meaningful way to the overall pygmy-owl population. Each analysis
unit within the geographic range of the subspecies maintains a network
of population groups that are connected both within and between
analysis units. These population groups have the potential to
recolonize areas where other population groups are lost to catastrophic
events. All analysis units contribute to the total rangewide
population, and population groups within each analysis unit provide
population support for that analysis unit and adjacent portions of the
range. If an analysis unit is self-sustaining, it provides redundancy
across the range, and may provide emigrants to support adjacent
analysis units. Research and monitoring have documented exchange of
individual cactus ferruginous pygmy-owls among population groups within
the Arizona, northern Sonora, and Texas analysis units, and between the
Arizona and northern Sonora analysis units (Abbate et al. 2000, p. 30;
Flesch and Steidl 2007, p. 37; Proudfoot et al. 2020, unpaginated; AGFD
unpublished data). Habitat fragmentation and reduced vegetation health
as a result of ongoing drought have resulted in the extirpation of
population groups in Arizona and Texas, but redundancy was exhibited in
the northern Sonora analysis unit when drought conditions eased and
historically occupied areas were reoccupied (Flesch et al. 2017, p.
12). Despite existing habitat fragmentation, research and monitoring
have documented that exchange of individual pygmy-owls between
population groups and between some analysis units is still occurring.
Habitat types used by pygmy-owls vary across the range, with some
vegetation types being restricted to certain portions of the geographic
range. It is important to maintain pygmy-owl populations throughout the
range to provide redundancy to adjacent populations in similar habitat
conditions. Due to the broad geographic distribution and network of
populations groups that are connected within and between some analysis
units throughout most of its range, the pygmy-owl has some ability to
recolonize following catastrophic events and is considered to have
adequate redundancy.
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Future Scenarios
In our SSA report, we defined viability as the ability of a species
to sustain populations in the wild over time. To help address
uncertainty associated with the degree and extent of potential future
stressors and their impacts on species' needs, the concepts of
resiliency, redundancy, and representation were assessed using three
plausible future scenarios. We developed these scenarios by identifying
information on the following primary factors anticipated to affect the
cactus ferruginous pygmy-owl in the future: Climate change, habitat
loss and fragmentation, and conservation activity. The three scenarios
capture the range of uncertainty in the changing landscape and how the
pygmy-owl
[[Page 72560]]
would respond to the changing conditions. We used the best available
data and models to project out 30 years into the future (i.e., 2050).
We chose this timeframe based on the subspecies' life span and
observed cycles in population abundance, as well as the time period
where we could reasonably project certain land use changes and
urbanization patterns relevant to the pygmy-owl and its habitat. The
majority of the projections of urbanization and population growth
within the geographic range of the pygmy-owl extend to 2050. Since
urbanization and development are some of the primary drivers of habitat
loss and fragmentation, we extended our analysis only as far as we
could reasonably project these changes and the species response to
those changes. Additionally, the average lifespan of a pygmy-owl is 3
to 5 years. Thus, over a 30-year timeframe, we would expect eight to
ten generations of pygmy-owls to be produced which should be adequate
to assess the effects of both threats and conservation actions. Because
the primary avenue through which pygmy-owls move across the landscape
is through the dispersal of juveniles, it can take multiple generations
to provide adequate exchange of individuals to elicit detectable change
at the population group and analysis unit scale. Including multiple
generations of pygmy-owls also allows adequate time to account for lags
in demographic factors resulting from changes in environmental
conditions. Therefore, this number of generations is sufficient to
assess the effective levels of resiliency, redundancy and
representation. Monitoring of pygmy-owl occupancy and productivity also
indicates that, at least in Arizona and northern Sonora, 30 years was
an adequate time period to document abundance cycles driven by climate
conditions. Monitoring in both Arizona and northern Sonora from the
mid-1990s to present showed a period of decline in occupancy and
productivity, primarily due to drought, followed by an increase in
productivity and occupancy during years of better precipitation such
that abundance and occupancy recovered to nearly the original levels
(Flesch et al. 2017, p. 12; Service 2021, entire). For more information
on the models and their projections, please see the SSA report (Service
2021, entire).
Under Scenario 1 (continuation of current trends), we projected
there would be no significant changes to the rate of habitat loss and
fragmentation within the subspecies' range. For this scenario, we
considered that climate change would track Representative Concentration
Pathway (RCP) 4.5, which is one of four alternative trajectories for
carbon dioxide emissions set forth by the International Panel on
Climate Change. Specifically, RCP4.5 is an intermediate scenario where
carbon dioxide emissions continue to increase through the mid-21st
century, but then decline. This scenario would result in atmospheric
carbon dioxide levels between 580 and 720 parts per million (ppm)
between 2050 and 2100 and would represent an approximately 2.5 [deg]C
increase in global mean temperature relative to the period 1861-1880
(IPCC 2014, p. 9). We also considered that conservation efforts that
are currently underway, such as captive rearing, would continue to be
limited in their efficacy, due to limited resources and the continued
efforts to identify appropriate and effective methodologies and
protocols. Additionally, climate change will continue to affect the
suitability of conditions at release sites for captive-reared pygmy-
owls, potentially limiting the effectiveness of pygmy-owl releases.
Under these conditions, we do not anticipate that any of the
factors used to evaluate resiliency would improve and, in fact,
vegetation intactness would be reduced due to continued development.
Northeastern Mexico is projected to maintain its current level of high
pygmy-owl abundance because significant changes to habitat conditions
are not expected. Because of this, the northeastern Mexico analysis
unit is expected to maintain a moderate level of population resiliency
under this scenario. Conditions in the Arizona analysis unit would
continue to decline due to continued habitat fragmentation and climate
change, and resiliency would remain low. Resiliency in the remaining
three analysis units, northern Sonora, western Mexico, and Texas, would
decline due to continued loss of cactus ferruginous pygmy-owl habitat,
reduced habitat intactness, and a reduction in cover and prey
availability for cactus ferruginous pygmy-owls. Overall, current levels
of population redundancy and representation would be maintained
rangewide because all analysis units would remain occupied; however,
representation within each analysis unit would likely decline at the
population-group scale.
Under Scenario 2 (worsening or increased effects scenario), we
projected increased rates of habitat loss and fragmentation leading to
a decline in pygmy-owl habitat conditions. For this scenario, we
considered that climate change would track RCP8.5, which is the highest
greenhouse gas emission scenario. Under this scenario, atmospheric
carbon dioxide concentrations are projected to exceed 1,000 ppm between
2050 and 2100 and would represent a 4.5 [deg]C increase in global mean
temperature (IPCC 2014, p. 9). We also considered that conservation
efforts that are currently underway would not be effective or would not
be implemented.
Increased habitat loss and fragmentation would result in the
greatest effect to overall resiliency through a reduction in abundance
and occupancy of pygmy-owls. Increased development and urbanization
would result in a permanent loss of habitat. Indirect effects to
vegetation and prey availability as a result of climate change would
also be expected. Due to increased habitat fragmentation, such as
agricultural development, as well as a reduction in vegetation health
from drought, resiliency in the western Mexico analysis unit is
projected to decline. Under this scenario, climate change and increased
habitat fragmentation from urbanization and agricultural development
lead to the loss of some population groups within the Texas, Arizona,
and northern Sonora analysis units. The resultant decline would
decrease representation and redundancy within these analysis units. In
particular, the Texas and Arizona analysis units would become more
vulnerable to extirpation because of low pygmy-owl abundance and
occupancy driven by reduced habitat quality as a result of drought and
high levels of habitat fragmentation from ongoing urbanization and
agricultural development. Genetic representation would be reduced
through the loss of population groups or analysis units and the
subsequent reduction of gene flow. Overall, there would be a reduction
in resiliency, representation, and redundancy within most analysis
units and the likelihood of maintaining long-term viability would be
considerably reduced.
Under Scenario 3 (improving or reduced effects scenario), we
project that habitat loss and fragmentation would continue, but at a
reduced rate. For this scenario, we considered that climate change
would track RCP4.5, and conservation efforts that are currently
underway would be effective. We did not include other planned
conservation efforts in this scenario because we are not aware of any
that would significantly influence the viability of the species.
Despite effective conservation actions in portions of the range,
the viability of pygmy-owl populations would continue to decline within
all five analysis units
[[Page 72561]]
due to the ongoing effects of habitat loss, fragmentation, and climate
change. Resiliency would remain low in the Arizona analysis unit and
would decline in both the northern Sonora and western Mexico analysis
units due to a reduction in habitat quality as a result of climate
change. Pygmy-owl habitat fragmentation from urbanization,
deforestation, and agricultural development are expected to continue
under this scenario, though at a slower rate. Resiliency would remain
in moderate condition for the Texas and northeastern Mexico analysis
units. Although habitat conditions are expected to continue to decline
due to drought and climate change, we do not expect a large decline in
pygmy-owl occupancy and abundance in Texas and northeastern Mexico.
Under this scenario, each analysis unit remains occupied and
contributes to the representation and redundancy across the range of
the pygmy-owl. However, within each analysis unit, threats continue,
albeit at a reduced rate, and the resiliency of population groups would
decline in three of the five analysis units. Thus, within analysis
units, representation and redundancy is likely to decrease at the
population-group scale.
Cumulative Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the subspecies, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the subspecies. To assess the current
and future condition of the subspecies, we undertake an iterative
analysis that encompasses and incorporates the threats individually and
then accumulates and evaluates the effects of all the factors that may
be influencing the subspecies, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire subspecies, our assessment integrates the cumulative effects of
the factors and replaces a standalone cumulative effects analysis.
Conservation Efforts and Regulatory Mechanisms
Because we are considering the best available information and
because the discussion above primarily addresses the viability of the
cactus ferruginous pygmy-owl in relation to the threats and factors
affecting its viability, here we will discuss regulatory mechanisms and
conservation actions that potentially have or will influence the
current and future viability of the cactus ferruginous pygmy-owl.
Federal Protections
Although the pygmy-owl in Arizona is considered nonmigratory, it is
included on the list of birds protected under the Migratory Bird Treaty
Act (MBTA) (16 U.S.C. 703-712). The MBTA prohibits ``take'' of any
migratory bird. However, unlike the Endangered Species Act, there are
no provisions in the MBTA preventing habitat destruction unless direct
mortality or destruction of an active nest occurs. Approximately 31
percent of the pygmy-owl's historical geographic range in the United
States is federally owned, with Federally-owned lands making up
approximately 40 percent of pygmy-owl habitat in Arizona. However, a
substantial extent of the known currently occupied habitats occur on
State Trust lands in Arizona and on private lands in Texas. Other
Federal regulations and policies such as the Clean Water Act (33 U.S.C.
1251 et seq.), the military's integrated natural resources management
plans (INRMPs, such as the one for the Barry M. Goldwater Range) (Uken
2008, pers. comm.), and National Park Service policy provide varying
levels of protection, but they have not been effective in protecting
the pygmy-owl from further decline in Arizona. As a result of the
implementation of the 2005 Real ID Act (Division B of Pub. L. 109-13),
the U.S. Department of Homeland Security (DHS) has waived application
of the Act and other environmental laws in the construction of border
infrastructure, including areas occupied by the pygmy-owl (73 FR 5272;
January 29, 2008). As recently as 2020, DHS waived environmental
compliance for the construction of border walls along the U.S.-Mexico
border in Arizona and Texas (Fischer 2019, entire; USCBP 2020, entire).
Consequently, pygmy-owl habitat has been lost and fragmented along most
of the border area in Arizona and, to a lesser extent, Texas. Of
particular concern is the potential for border infrastructure to reduce
habitat connectivity into occupied pygmy-owl habitat in Mexico.
State Protections
The pygmy-owl is included on the State of Arizona's list of species
of concern (AGFD 2021, p. 16). Arizona statute does not address the
root causes leading to destruction or alteration of pygmy-owl habitat.
The State of Texas lists the pygmy-owl as threatened (Texas
Administrative Code, title 31, part 2, chapter 65, subchapter G, rule
65.175; TPWD 2009, p. 1). This designation allows permits to be issued
for the taking, possession, propagation, transportation, sale,
importation, or exportation of pygmy-owls if necessary to properly
manage that species, but does not provide any habitat protections
(Texas Park and Wildlife Code, chapter 67, section 67.0041).
Protections in Mexico
Within Mexico, the distribution of owls is large and includes
multiple States. The administration of land use in Mexico depends on
the national government, which implements Natural Protected Areas and
other Federal programs, and also the policies of each State and even
municipal governments (Enr[iacute]quez 2021, pers. comm.). This system
represents a wide range of management, conservation, and natural
resource use approaches that affect pygmy-owl conservation, resulting
in inconsistent policies and implementation of conservation activities.
Similar to state laws in the United States, there are currently no laws
or regulations in Mexico that specifically protect pygmy-owls and
pygmy-owl habitat. As is the case throughout the geographic range of
the pygmy-owl, with so many entities involved in how lands in Mexico
are used and managed, it is complicated and, sometimes, unrealistic to
implement widespread, consistent application of regulations that
promote the conservation of pygmy-owls in Mexico.
Conservation Efforts
Cactus ferruginous pygmy-owl conservation activities have occurred
sporadically over the past three decades in both the United States and
in northern Sonora in Mexico. Initial conservation efforts developed
effective and safe protocols for studying the cactus ferruginous pygmy-
owl and on gathering basic life-history information. Efforts expanded
in the late 1990s and early 2000s to include important pygmy-owl work
in Arizona, Texas, and northern Sonora. For the past two decades,
studies have been irregular and focused on monitoring of known
territories.
Surveying and Monitoring
The Arizona Game and Fish Department (AGFD) initiated surveys to
determine the extent of cactus ferruginous pygmy-owl occurrences in
Arizona in 1992, when the cactus ferruginous pygmy-owl was first
[[Page 72562]]
petitioned to be listed under the Act. Survey and monitoring work by a
variety of entities continued through 2006, when the species was
delisted. Prior to delisting, survey and monitoring efforts were
focused in Pima and Pinal Counties to document the occupancy pattern of
cactus ferruginous pygmy-owls in areas of land use changes, primarily
urban development. After the pygmy-owl was delisted in 2006, a small
number of monitoring surveys continued to be conducted by Service and
AGFD biologists. In 2020, AGFD coordinated a comprehensive survey
effort, with the help of numerous partners, to gather data on the
current numbers and distribution of the cactus ferruginous pygmy-owl in
Arizona to inform this listing decision. Specifically, this effort
included surveys to document distribution, territory occupancy
monitoring, and some nest searches to document reproduction. This
latest effort provided data on current distribution of the pygmy-owl in
Arizona and the number of occupied territories, as well as some
information on the number of active nesting territories (AGFD 2020,
pers. comm.). These data are incorporated into the SSA report. However,
these efforts did not provide any information on productivity or
survival at these sites.
Nest Box Trials
Because cactus ferruginous pygmy-owls are secondary cavity nesters,
the number of available cavities may influence the viability of cactus
ferruginous pygmy-owls on the landscape (Proudfoot 1996, p. 68). Using
nest boxes as a management tool may enhance the viability of cactus
ferruginous pygmy-owls by increasing cavity availability and reducing
predation. Nest boxes also enhance access to the owls during nesting
and facilitate our ability to conduct research. Research in Texas
demonstrated successful use of artificial nest structures by cactus
ferruginous pygmy-owls (Proudfoot et al. 1999, pp. 5-6). In response to
concerns about cavity availability, two nest box trials were conducted
in Arizona in 1998 and 2006. No cactus ferruginous pygmy-owls used the
nest boxes in these studies, but low cavity availability was confirmed
based on high use of the nest boxes by other species, including screech
owls. No additional nest box studies have been undertaken in Arizona,
and the nest box study in Texas is no longer active.
Captive Breeding and Population Augmentation
A pygmy-owl captive-breeding feasibility study was initiated by the
AGFD in partnership with the Wild at Heart raptor care facility in Cave
Creek, Arizona, in 2006. Since then, Wild at Heart has been researching
and testing protocols for a managed breeding program for cactus
ferruginous pygmy-owls. In 2017, the Phoenix Zoo became the second
captive breeding site for pygmy-owls in Arizona and part of the managed
breeding program when it entered into partnership with the Service and
the AGFD. Both the AGFD and the Service oversee this program.
The goal of the managed breeding program for the cactus ferruginous
pygmy-owl is to develop appropriate protocols for the husbandry and
breeding of captive pygmy-owls to provide individuals to augment
existing population groups or establish new population groups in areas
where suitable habitat exists in Arizona (AGFD 2015, entire). To date,
these efforts have demonstrated: (a) Successful capture and transport
of wild cactus ferruginous pygmy-owls; (b) safe, healthy, and stress-
free captive facilities; (c) the development of appropriate care,
feeding, and maintenance protocols; (d) successful breeding; and (e)
appropriate care and development of young-of-the-year birds. Three
pilot releases of captive-bred pygmy-owls have been implemented since
the inception of this program. This effort establishes the first formal
captive-breeding for the subspecies and provides the groundwork for
evaluation of this strategy in wild cactus ferruginous pygmy-owl
population augmentation. These pilot releases have not resulted in the
establishment of new pygmy-owl territories or population groups, but
have contributed valuable information to developing appropriate release
strategies and protocols to improve the potential for conservation
benefits to the pygmy-owl in the future.
Conservation Planning
When the pygmy-owl was listed previously, several municipalities
located within current or historical pygmy-owl activity areas explored
or implemented habitat conservation plans (HCPs) under the Act to
address potential conflicts between development projects and
requirements of the Act. These HCP plans included the Sonoran Desert
Conservation Plan (Multi-Species Conservation Plan) developed by Pima
County (Pima County 2016, entire), the Town of Marana HCP (Town of
Marana 2009, entire), and the City of Tucson's Avra Valley (City of
Tucson 2019, entire) and Southlands HCPs (City of Tucson 2013, entire).
Each of these four HCP efforts identified the cactus ferruginous pygmy-
owl as one of the covered species within their plans. However, most of
these plans have yet to be completed: To date, only the Pima County HCP
has been completed and is being implemented. Pima County is currently
conducting ongoing surveys and monitoring of pygmy-owl territories on
county-managed lands and has set aside pygmy-owl habitat as part of
their conservation lands system in compliance with their HCP. The
establishment of these conservation lands is an important contribution
to pygmy-owl conservation in Pima County, but continuing efforts are
needed to address other threats such as habitat impacts from climate
change. Pima County's efforts are expected to continue for the 30-year
life of their permit (through 2046) and longer if the County renews the
permit.
Another ongoing conservation planning effort that has the potential
to support pygmy-owl conservation in the Altar Valley of southern
Arizona is the Altar Valley Watershed Management Plan. This plan being
developed by the Altar Valley Conservation Alliance with numerous
partners and participants builds upon existing efforts within the Altar
Valley to restore and enhance the watershed. The plan will describe
stewardship practices and identify a series of high-priority projects
that maximize positive impacts on the land. While this planning effort
has yet to be completed, projects related to watershed restoration have
been implemented at three ranches in the Altar Valley. These projects
have included one-rock dams and other structures to stabilize
waterways, road grading to promote water harvesting, and enhancement of
grasslands through invasive species control to promote infiltration and
reduce runoff and sedimentation. These actions improve vegetation
health through increased water infiltration and reduce loss of soil and
vegetation due to erosion. Specific benefits occur to riparian
vegetation along drainages enhancing pygmy-owl habitat conditions and
connectivity.
In Mexico, there are Federal, State, or municipal protected areas
which comprise approximately 11 percent of the historical pygmy-owl
range in Mexico. These areas can work well as conservation strategies
for the cactus ferruginous pygmy-owl. There is now a new option for
protected areas called Voluntary Conservation Areas ([Aacute]reas
Destinadas Voluntariamente a la Conservaci[oacute]n; ADVA), which are
areas identified for conservation. These ADVA could be a potential
conservation strategy for the pygmy-owl in the future (Enr[iacute]quez
2021, pers. comm.).
[[Page 72563]]
Determination of Cactus Ferruginous Pygmy-Owl's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
a ``threatened species.'' The Act defines an ``endangered species'' as
a species in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
``endangered species'' or a ``threatened species'' because of any of
the following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We examined the following threats to the cactus ferruginous pygmy-
owl: Climate change and climate condition (Factor E), habitat loss and
fragmentation (Factor A), human activities and disturbance (Factors B
and E), human-caused mortality (Factors B and E), disease and predation
(Factor C), and small population size (Factor E), and we determined
that the primary threats to the subspecies are climate change and
climate condition, and habitat loss and fragmentation. Existing
regulatory mechanisms (Factor D) and conservation efforts do not
address the threats to the cactus ferruginous pygmy-owl to the extent
that listing the subspecies is not warranted.
Population resiliency is highly variable across the range of the
pygmy-owl. Overall, three analysis units maintain a moderate level of
resiliency, with western Mexico maintaining a high level of resiliency
and Arizona with a low level of resiliency. Therefore, the majority of
the analysis units we examined maintain some ability to withstand
stochastic events. Additionally, the western Mexico and northeast
Mexico analysis units are estimated to support tens of thousands of
pygmy-owls. Due to the broad geographic distribution and network of
population groups that are connected within and between some analysis
units throughout most of its range, the pygmy-owl has some ability to
recolonize following catastrophic events and is considered to have
adequate redundancy. Additionally, the cactus ferruginous pygmy-owl
currently has high genetic and ecological variability across the range.
This ecological diversity provides the subspecies with sufficient
representation and may allow the pygmy-owl to adapt to, and survive,
future environmental change.
After evaluating threats to the subspecies and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we conclude that the risk factors acting on the cactus
ferruginous pygmy-owl and its habitat, either singly or in combination,
are not of sufficient imminence, intensity, or magnitude to indicate
that the subspecies is in danger of extinction now (an endangered
species) throughout all of its range. Despite current stressors, the
subspecies currently maintains adequate resiliency, redundancy, and
representation across the range such that the subspecies is currently
able to withstand stochastic and catastrophic events and maintain
adequate genetic and ecological variation throughout its range.
However, our analysis of the cactus ferruginous pygmy-owl's future
conditions shows that the threats to the subspecies are likely to
continue into the future, resulting in continued loss and fragmentation
of habitat putting the species at risk of extinction within the
foreseeable future.
Under all future scenarios, we project a continued reduction in
species viability throughout the range of the subspecies due to climate
change, habitat loss, and habitat fragmentation. In 30 years, even
under our most optimistic scenario, the reduced effects scenario, there
will be no analysis units in high condition. This represents a decrease
from current conditions with one analysis unit declining from high to
moderate condition, and one analysis unit declining from moderate to
low condition. Additionally, despite maintaining their current
condition categories over the next 30 years, habitat and demographic
conditions within the other three analysis units continue to decline.
Over the next 30 years, many of the analysis units will become
increasingly vulnerable to extirpation through the degradation of
habitat conditions. We anticipate that urbanization and development
will continue under all future scenarios and in all analysis units.
Invasive species will continue to spread into pygmy-owl habitat in most
analysis units and deforestation and wood harvesting will continue in
all three analysis units in Mexico. Continued loss and degradation of
pygmy-owl habitat will reduce overall species resiliency, impeding the
ability of the subspecies to withstand stochastic events and increasing
the risk of extirpation following such events. The loss of population
groups will lead to a reduction in representation, reducing the
subspecies' ability to adapt over time to changes in the environment,
such as climate changes. This expected reduction in both the number and
distribution of sufficiently resilient population groups will reduce
redundancy and impede the ability of the subspecies to recolonize
following catastrophic disturbance. Thus, after assessing the best
available information, we conclude that the cactus ferruginous pygmy-
owl is not currently in danger of extinction but is likely to become in
danger of extinction within the foreseeable future throughout all of
its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of
[[Page 72564]]
extinction now (i.e., endangered). In undertaking this analysis for
cactus ferruginous pygmy-owl, we choose to address the status question
first--we consider information pertaining to the geographic
distribution of both the species and the threats that the species faces
to identify any portions of the range where the species is endangered.
The statutory difference between an endangered species and a
threatened species is the timeframe in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we reviewed the
best scientific and commercial data available regarding the time
horizon for the threats that are driving the cactus ferruginous pygmy-
owl to warrant listing as a threatened species throughout all of its
range. We considered whether the threats are geographically
concentrated in any portion of the species' range in a way that would
accelerate the time horizon for the species' exposure or response to
the threats. We examined the following threats: Climate change and
climate condition (Factor E) and habitat loss and fragmentation (Factor
A), including cumulative effects.
We found a concentration of threats, i.e., the impacts of climate
change, urbanization, and invasive species, in the Sonoran Desert
Ecoregion, which extends from Arizona south into Sonora, Mexico.
Climate change impacts to the pygmy-owl in the Sonoran Desert Ecoregion
are likely to include loss of vegetation cover, reduced prey
availability, increased predation, reduced nest site availability, and
vegetation community change. For example, models predict that the
distribution of suitable habitat for saguaros, the primary pygmy-owl
nesting substrate within the Sonoran Desert Ecoregion, will
substantially decrease over the next 50 years under a moderate climate
change scenario (Weiss and Overpeck 2005, p. 2074; Thomas et al. 2012,
p. 43).
Climate models project that, by the end of the 21st century, the
Sonoran Desert will experience an increase in drought conditions with a
transition to a drier and more arid climate (Seager et al. 2007, p. 9;
Cook et al. 2015, p. 6; Pascale et al. 2017, p. 806; Williams et al.
2020, p. 317). Given that this portion of the pygmy-owl's overall range
is already characterized by arid and hot conditions and is in the midst
of an extended drought, the effects from climate change represent a
higher concentration of effects than in other portions of the pygmy-
owl's range, which generally are characterized by higher precipitation
and lower temperatures resulting in a baseline of higher greenness and
vegetation health. In general, annual precipitation in the Sonoran
Desert is positively correlated to pygmy-owl productivity (Flesch et
al. 2015, p. 26). Timing and quantity of precipitation affects lizard
and rodent abundance in ways that suggest rainfall is an important
driver of prey population and community dynamics. In general, cool-
season rainfall is positively correlated with rodent populations and
warm-season rainfall is positively correlated with lizard populations.
Projected increases in variability and decreases in quantity of
precipitation will likely lead to a decrease in prey abundance for the
pygmy-owl (Jones 1981, p. 111; Flesch 2008, p. 5; Flesch et al. 2015,
p. 26).
Urban expansion and human population growth trends are expected to
continue in the Sonoran Desert Ecoregion. The Maricopa-Pima-Pinal
County areas of Arizona are expected to see the population grow by as
much as 132 percent between 2005 and 2050, creating rural-urban edge
effects across thousands of acres of pygmy-owl habitat (AECOM 2011, p.
13).
The population along the U.S.-Mexico border region from Texas to
California is expected to double by 2025 (HHS 2017, p. 1). In Arizona,
the border counties are projected to increase by 60 percent to 2.5
million by 2050 (OEO 2021, unpaginated). In Sonora the population is
projected to reach 3.5 million by 2030 (CONAPO 2014, p. 25).
Development is focused along the border and this area of northern
Mexico has faster population growth than other Mexican states (Pineiro
2001, pp. 1-2). This development focuses potential barriers or
impediments to pygmy-owl movements in a region that is important for
demographic support (immigration events and gene flow) of pygmy-owl
population groups, including movements such as dispersal. If urban
expansion and development continues as expected, it will encompass a
substantial portion of the current distribution of the pygmy-owl in the
Sonoran Desert Ecoregion.
The invasion of nonnative vegetation, particularly nonnative
grasses, has altered the natural fire regime over the Sonoran Desert
Ecoregion portion of the pygmy-owl's range. Buffelgrass is prevalent
and increasing throughout much of this portion of the pygmy-owl's
range, leading to increased fire frequency in a system that is not
adapted to fire (Schmid and Rogers 1988, p. 442; D'Antonio and Vitousek
1992, p. 73; Burquez and Quintana 1994, p. 23; Halverson and Guertin
2003, p. 13; Van Devender and Dimmit 2006, p. 5). While a single fire
in an area may or may not produce long-term reductions in plant cover
or biomass, repeated wildfires in a given area are capable of ecosystem
type-conversion from native desertscrub to nonnative annual grassland.
These repeated fires may render the area unsuitable for pygmy-owls and
other native wildlife due to the loss of trees and columnar cacti, and
reduced diversity of cover and prey species (Brooks and Esque 2002, p.
336).
Despite the current concentration of threats and their increasing
effects to pygmy-owls and pygmy-owl habitat, the Sonoran Desert
Ecoregion currently supports an abundance of pygmy-owls in the high
hundreds and a moderate amount of intact, suitable vegetation.
Consequently, these factors are currently maintaining an overall
moderate level of resiliency in this portion of the range.
Additionally, there is currently habitat connectivity with evidence of
pygmy-owl movement among population groups, providing redundancy
throughout the Sonoran Desert Ecoregion. Representation is also
currently being maintained through pygmy-owl occupancy of a variety of
vegetation types throughout the Sonoran Desert Ecoregion with gene flow
among these population groups. However, under all three future
scenarios, this portion of the range is expected to become less
resilient due to continued habitat fragmentation and the effects of
climate change on habitat conditions, resulting in a reduction of
pygmy-owl abundance and occupancy. These deteriorating conditions are
also anticipated to result in declines in redundancy and representation
through the loss of population groups within the Ecoregion.
Although some threats to the cactus ferruginous pygmy-owl are
concentrated in the Sonoran Desert Ecoregion, the best scientific and
commercial data available does not indicate that the concentration of
threats, or the species' responses to the concentration of threats, are
likely to accelerate the time horizon in which the species becomes in
danger of extinction in that portion of its range. As a result, the
cactus ferruginous pygmy-owl is not in danger of extinction now in the
Sonoran Desert Ecoregion. However, we do find that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This finding is consistent with the
courts' holdings in Desert Survivors v. Department of the Interior, No.
16-cv-01165-JCS, 2018
[[Page 72565]]
WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the cactus ferruginous pygmy-owl meets the
Act's definition of a threatened species. Therefore, we propose to list
the cactus ferruginous pygmy-owl as a threatened species in accordance
with sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting'') and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. If we adopt this rule as proposed, when completed, the
recovery outline, draft recovery plan, and the final recovery plan for
the cactus ferruginous pygmy-owl will be available on our website
(https://www.fws.gov/endangered), or from our Arizona Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Arizona and Texas would
be eligible for Federal funds to implement management actions that
promote the protection or recovery of the cactus ferruginous pygmy-owl.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/grants.
Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary of the Interior determines to
be necessary or useful for the conservation of endangered or threatened
species in foreign countries. Sections 8(b) and 8(c) of the Act (16
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage
conservation programs for foreign listed species, and to provide
assistance for such programs, in the form of personnel and the training
of personnel.
Although the cactus ferruginous pygmy-owl is only proposed for
listing under the Act at this time, please let us know if you are
interested in participating in recovery efforts for this subspecies.
Additionally, we invite you to submit any new information on this
subspecies whenever it becomes available and any information you may
have for recovery planning purposes (see FOR FURTHER INFORMATION
CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, 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 the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered, or on private lands seeking
funding, by Federal agencies, which may include, but are not limited
to, the Department of the Interior's U.S. Fish and Wildlife Service,
Bureau of Land Management, and National Park Service (Organ Pipe Cactus
National Monument and Ironwood Forest National Monument); the
Department of Defense's (Barry M. Goldwater Air Force Range) and U.S.
Army Corps of Engineers (for issuance of section 404 Clean Water
permits); the U.S. Department of Agriculture's U.S. Forest Service,
Natural Resources Conservation Service, and Farm Service Agency; and
construction and maintenance of roads or highways by the Federal
Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR
[[Page 72566]]
34272), to identify to the maximum extent practicable at the time a
species is listed, those activities that would or would not constitute
a violation of section 9 of the Act. The intent of this policy is to
increase public awareness of the effect of a proposed listing on
proposed and ongoing activities within the range of the species
proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as he [or she]
deems necessary and advisable to provide for the conservation of
species listed as threatened. The U.S. Supreme Court has noted that
statutory language like ``necessary and advisable'' demonstrates a
large degree of deference to the agency (see Webster v. Doe, 486 U.S.
592 (1988)). Conservation is defined in the Act to mean the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Additionally, the
second sentence of section 4(d) of the Act states that the Secretary
may by regulation prohibit with respect to any threatened species any
act prohibited under section 9(a)(1), in the case of fish or wildlife,
or section 9(a)(2), in the case of plants. Thus, the combination of the
two sentences of section 4(d) provides the Secretary with wide latitude
of discretion to select and promulgate appropriate regulations tailored
to the specific conservation needs of the threatened species. The
second sentence grants particularly broad discretion to the Service
when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him [or her] with regard to the permitted activities for those
species. He [or she] may, for example, permit taking, but not
importation of such species, or he [or she] may choose to forbid both
taking and importation but allow the transportation of such species''
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the cactus ferruginous pygmy-
owl's conservation needs. Although the statute does not require us to
make a ``necessary and advisable'' finding with respect to the adoption
of specific prohibitions under section 9, we find that this proposed
rule as a whole satisfies the requirement in section 4(d) of the Act to
issue regulations deemed necessary and advisable to provide for the
conservation of the cactus ferruginous pygmy-owl. Because of the large
geographic range of the cactus ferruginous pygmy-owl, different
portions of the geographic range are affected by different types and
extent of threats and stressors. Therefore, it is feasible that
exceptions under this proposed 4(d) rule may be different for the
different analysis units described in the SSA report. We encourage
public comment providing support for the potential application of
different exceptions in different portions of the cactus ferruginous
pygmy-owl's geographic range.
As discussed above under Summary of Biological Status and Threats,
we have concluded that the cactus ferruginous pygmy-owl is likely to
become in danger of extinction within the foreseeable future primarily
due to a loss of vegetation cover, reduced prey availability, increased
predation, reduced nest site availability, and vegetation community
change resulting from ongoing climate change, particularly increases in
drought conditions, as well as due to habitat loss and fragmentation
stemming from urbanization, agriculture, deforestation, and invasive
species. This proposed 4(d) rule identifies the prohibitions needed to
conserve the cactus ferruginous pygmy-owl.
We considered the range of potential activities that may
potentially affect the cactus ferruginous pygmy-owl's status and
viability. There is a very wide range of such potential activities
including, but not limited to, commercial and residential development,
infrastructure development and maintenance, utility work, activities
related to border infrastructure and enforcement, grazing and ranching
activities, activities conducted under Clean Water Act permits, mining,
flood control activities, recreation, and activities conducted under
land management plans. There is also a wide range of factors that
affect the implementation of each of these activity types resulting in
unique circumstances that we considered in developing proposed 4(d)
rule exceptions. Ultimately, we find that it is appropriate to extend
the standard section 9 prohibitions for endangered species to the
cactus ferruginous pygmy-owl in order to conserve the subspecies.
However, while developing this proposed 4(d) rule, the Service
considered exceptions to the standard section 9 prohibitions for
endangered species that would facilitate essential conservation actions
needed for the cactus ferruginous pygmy-owl. We consider essential
conservation efforts to include facilitating surveys and monitoring of
cactus ferruginous pygmy-owl population groups; enabling research to
better understand cactus ferruginous pygmy-owl's needs and stressors
(including the use of nest boxes and captive breeding); conducting
education and outreach activities to increase public awareness and
support of cactus ferruginous pygmy-owl conservation and recovery; and
encouraging management of the landscape in ways that meet both land
management considerations and the conservation needs of the cactus
ferruginous pygmy-owl. Such land management considerations potentially
include restoration and habitat improvement actions (including
nonnative, invasive species management), watershed improvements, and
grazing management that is compatible with cactus ferruginous pygmy-owl
habitat enhancement and restoration, provided pygmy-owl habitat
enhancement and restoration is identified as a significant outcome of
the management actions and such actions are coordinated with the
Service.
For the purposes of this proposed rule and our SSA analysis, we
consider surveying and monitoring activities necessary to understand
and implement cactus ferruginous pygmy-owl conservation and recovery.
We currently lack data on the current numbers, density, and
distribution of the cactus ferruginous pygmy-owl across its defined
geographic range in both the United States and Mexico. We also lack
comprehensive data on the productivity,
[[Page 72567]]
survival, mortality, and other natural-history characteristics of the
cactus ferruginous pygmy-owl. Such data have been gathered
historically, but only in local areas and primarily only in the United
States and northern Sonora. Where we have data on occurrence, numbers,
density, and natural-history variables, they allow us to better
understand the status of the cactus ferruginous pygmy-owl and what
actions are necessary to conserve population groups and enhance status
and viability. Surveying and monitoring activities can result in short-
term effects to cactus ferruginous pygmy-owls and, potentially, in the
take of individuals and nest sites. We want to encourage more
comprehensive and widespread surveying and monitoring activities across
the geographic range of the cactus ferruginous pygmy-owl, and thus, we
are considering providing an exception for this action in the 4(d)
rule. This exception could occur by recognizing State authority to
issue a permit to conduct call broadcast surveys and monitoring and
nest monitoring for listed species. This state permitting would ensure
oversight for surveyor and monitor qualifications, as well as data
submission to the State agencies. Thus, an exception to the
prohibitions of take could be granted under the 4(d) rule if the
surveyors and monitors possessed a valid state permit, if required. If
a State permit is not required to conduct call broadcast surveys and
monitoring and nest monitoring, such activities could require a Federal
10(a)(1)(A) permit. We are considering this approach to recognize State
authorities and streamline permitting processes. This exception would
not cover any activities that involve the handling of pygmy-owls. We
encourage public and agency comments related to our consideration of
using the State permitting process in the 4(d) rule as the basis of an
exception to the prohibitions on take related to pygmy-owl survey and
monitoring activities.
Similar to surveying and monitoring, research related to all
aspects of cactus ferruginous pygmy-owl natural history are needed to
fill in information gaps and improve our understanding of the needs and
stressors of the cactus ferruginous pygmy-owl to be able to identify
and implement effective conservation and recovery actions. This
includes research into the effectiveness of a managed breeding program
for the pygmy-owl.
Because research that involves the capture, handling, marking,
human care, tissue sample collection, etc., of pygmy-owls may result in
the direct take of cactus ferruginous pygmy-owls, it is necessary to
require those implementing these actions to have the appropriate
background, expertise, and equipment and materials to implement these
activities. We find that these activities are best administered through
our section 10 permitting process (under the Act's section
10(a)(1)(A)). This permitting process allows us to assess the
appropriateness of the proposed projects and activities with regard to
promoting the conservation of the cactus ferruginous pygmy-owl; ensure
the competency of those conducting the activities; reduce the potential
for redundancy of effort and overlapping effects to cactus ferruginous
pygmy-owls; and facilitate the opportunity to receive, analyze, and
incorporate the most current information into conservation and recovery
actions.
Restoration and habitat improvement actions are those actions that
convert areas that are otherwise not habitat for the cactus ferruginous
pygmy-owl to areas that are cactus ferruginous pygmy-owl habitat or
actions that improve areas of lesser quality cactus ferruginous pygmy-
owl habitat to areas of higher quality cactus ferruginous pygmy-owl
habitat. These actions are essential for the subspecies, as this is the
only way to offset habitat loss and fragmentation. For the cactus
ferruginous pygmy-owl, the primary restoration or habitat improvement
actions include, but are not limited to, placement of nest boxes,
restoration of native species, establishment or protection of nesting
substrates (large trees and columnar cacti), invasive species control,
riparian enhancement, water developments, watershed improvements,
improved habitat connectivity, and fire management. Because we want to
encourage the implementation of cactus ferruginous pygmy-owl habitat
restoration and enhancement, we are proposing in the 4(d) rule an
exemption to the take of cactus ferruginous pygmy-owls that may result
from such activities, as described below. In order to receive this
exemption, the habitat restoration and improvement projects must be
coordinated with, and receive approval from, the Service prior to work
commencing.
Education and outreach activities allow cactus ferruginous pygmy-
owl conservation partners to present information to various segments of
the public related to ongoing conservation and management activities
and programs. Public awareness of the cactus ferruginous pygmy-owl's
biology, ecology, and threats helps foster support for recovery program
activities across the geographic range of the cactus ferruginous pygmy-
owl. Increasing the prevailing understanding of how recovery activities
for the cactus ferruginous pygmy-owl improve the health, function, and
quality of the environments where they are found, as well as the human
communities located in proximity to occupied cactus ferruginous pygmy-
owl habitat, will strengthen support for continued conservation of the
pygmy-owl and for the habitats upon which it depends. Education and
outreach will also serve to counteract incorrect narratives that
conservation of the cactus ferruginous pygmy-owl is responsible for
preventing activities and development that positively affect the area's
social and economic well-being. Allowing the public to personally see
pygmy-owls through the use of educational animals can result in take of
individuals. The potential for this type of take is already addressed
through the issuance of a Migratory Bird Treaty Act (MBTA) permit and
we are proposing to streamline permitting by acknowledging the existing
MBTA process in this proposed 4(d) rule. Such education and outreach
programs can increase public awareness, engagement, and support for
cactus ferruginous pygmy-owl conservation and recovery. Such benefits
outweigh the effects to individual pygmy-owls.
Finally, we considered the need for compatibly managed grazing
activities that result in the vegetation structure and composition
needed to support the cactus ferruginous pygmy-owl. The habitat needs
for the cactus ferruginous pygmy-owl vary across the subspecies'
geographic range, and grazing can affect these habitats in different
ways. It is important that grazing is managed at a given site to
account for a variety of factors specific to the local ecological site,
including past management, soils, precipitation, and other factors, to
ensure that the resulting vegetative composition and structure will
support the cactus ferruginous pygmy-owl. Grazing management that has
altered the vegetation community to a point where the composition and
structure are no longer suitable for cactus ferruginous pygmy-owls can
contribute to habitat loss and fragmentation within the landscape, even
though these areas may remain as open space on the landscape. Livestock
grazing, however, is not inherently detrimental to the cactus
ferruginous pygmy-owl, provided that grazing management results in a
plant community with species and structural diversity suitable for the
cactus ferruginous pygmy-owl. When livestock grazing is managed
compatibly, it can be an invaluable tool for managing healthy
[[Page 72568]]
vegetation communities benefiting the cactus ferruginous pygmy-owl.
While developing this proposed 4(d) rule, we determined that
grazing management has to occur on the local level, and thus broad
determinations within this proposed 4(d) rule would not be beneficial
to the species or local land managers. While the 4(d) rule was one
approach considered to promote conservation of the cactus ferruginous
pygmy-owl by encouraging management of vegetation communities in ways
that support both long-term viability of livestock enterprises and
concurrent conservation of pygmy-owls, we determined that other
mechanisms under our authorities would be more appropriate to support
this action. Besides a 4(d) rule, other mechanisms supporting
conservation opportunities exist in other portions of the Act and our
policies, including under the Act's section 7(a) (Federal Agency
Actions and Consultations), the Act's section 10(a) (Permits), and our
conservation banking program. We recognize the value of compatibly
managed grazing for the cactus ferruginous pygmy-owl, and we look
forward to working with our partners and local land managers to ensure
there are viable conservation options that provide regulatory coverage
for interested landowners. We encourage public comments related to the
issue of properly managed grazing and the appropriate best approach for
addressing livestock grazing and management within the range of tools
available.
As indicated above, the provisions of this proposed 4(d) rule are
one of many tools that we would use to promote the conservation of the
cactus ferruginous pygmy-owl. This proposed 4(d) rule would apply only
if and when we make final the listing of the cactus ferruginous pygmy-
owl as a threatened species.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, 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. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. 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
U.S. Army Corps of Engineers 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.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
cactus ferruginous pygmy-owl by prohibiting the following activities,
except as otherwise authorized or permitted: Importing or exporting;
take; possession and other acts with unlawfully taken specimens;
delivering, receiving, transporting, or shipping in interstate or
foreign commerce in the course of commercial activity; or selling or
offering for sale in interstate or foreign commerce. In addition,
anyone taking, attempting to take, or otherwise possessing a cactus
ferruginous pygmy-owl, or parts thereof, in violation of section 9 of
the Act would be subject to a penalty under section 11 of the Act, with
certain exceptions (discussed below).
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take that occurs incidental to otherwise lawful activities (section 7
consultations with Federal action agencies) would help to conserve and
recover the cactus ferruginous pygmy-owl by evaluating the potential of
various activities to adversely affect or otherwise decrease the
viability of the cactus ferruginous pygmy-owl. As mentioned above, a
wide variety of lawful activities and projects have the potential to
negatively affect the viability of this subspecies: Disturbance, loss
and fragmentation of habitat, reduction of prey species, loss of
nesting substrates, introduction of nonnative predators and
competitors, and other similar effects. By regulating these types of
activities and projects, we can conserve the subspecies' remaining
habitat and populations; slow the rate of habitat loss and
fragmentation; slow the subspecies' rate of decline; and decrease
synergistic, negative effects from other ongoing future threats.
Conversely, allowing incidental and intentional take for certain
activities allow us to promote pygmy-owl conservation and improve
pygmy-owl habitat. For example, habitat restoration and improvement
works to offset losses and fragmentation of habitat from factors
related to climate change and human land uses on the landscape.
Education and outreach efforts help to increase public awareness and
understanding and to garner support for conservation and recovery of
the cactus ferruginous pygmy-owl. Thus, benefits to the cactus
ferruginous pygmy-owl are derived both from regulating certain sources
of potential take and by excepting certain take for activities where
benefits outweigh the short-term effects of the take on cactus
ferruginous pygmy-owl populations.
As discussed above under Summary of Biological Status and Threats,
the loss of vegetation cover, reduced prey availability, increased
predation, reduced nest site availability, and vegetation community
change resulting from ongoing climate change, particularly increases in
drought conditions, and habitat loss and fragmentation stemming from
urbanization, agriculture, deforestation, and invasive species are
affecting the status of the cactus ferruginous pygmy-owl. We have
identified various activities that have the potential to help us
understand and offset the activities affecting the cactus ferruginous
pygmy-owl's viability. Therefore, a range of conservation activities,
including education and outreach related to cactus ferruginous pygmy-
owl recovery, and management of the landscape in ways that meet both
land management considerations and the conservation needs of the cactus
ferruginous pygmy-owl, have the potential to benefit the cactus
ferruginous pygmy-owl. Such land management considerations potentially
include restoration and habitat improvement actions, watershed
[[Page 72569]]
improvements, and grazing management that is compatible with cactus
ferruginous pygmy-owl habitat enhancement and restoration, provided
such habitat enhancement and restoration is identified as a significant
outcome of the management actions and such actions are coordinated with
the Service and appropriate State and Tribal agencies and landowners.
Accordingly, this proposed 4(d) rule addresses activities to facilitate
conservation and management of the cactus ferruginous pygmy-owl where
the activities currently occur and may occur in the future by excepting
the activities from the Act's take prohibition under certain specific
conditions. These activities are intended to increase management
flexibility and encourage support for conservation of, habitat
restoration for, and habitat improvement for the cactus ferruginous
pygmy-owl.
Under this proposed 4(d) rule, most take would be prohibited.
Exceptions to the prohibitions on take would include some of the
general exceptions allowed for take of endangered wildlife as set forth
is 50 CFR 17.21 (see the rule portion of this document) and certain
other specific activities that we propose for exception, as described
below. The excepted activities would require approval by the Service or
would have to be conducted under an existing, appropriate, valid permit
issued under part 21 of title 50 of the Code of Federal Regulations,
which governs species protected under the MBTA, as described below.
These activities should be conducted in coordination with appropriate
land management agencies; State, Tribal, and local agencies; and
private landowners, as appropriate, and in support of any existing or
future designated recovery programs guiding the conservation and
recovery of the cactus ferruginous pygmy-owl. The following activities
would be excepted from the take prohibitions for the pygmy-owl (i.e.,
take would be allowed for these activities) under this proposed 4(d)
rule.
Education and Outreach
Education and outreach are a vital part of cactus ferruginous
pygmy-owl recovery and progress towards achieving and maintaining
viable populations of cactus ferruginous pygmy-owls. This proposed 4(d)
rule excepts from take prohibitions those cactus ferruginous pygmy-owl
education and outreach activities undertaken for the purposes of
increasing public awareness of cactus ferruginous pygmy-owl biology,
ecology, or recovery needs, as well as of the positive effects of
having pygmy-owls as a viable part of the local ecosystems on the local
society, economy, and quality of life for communities. Such educational
activities may include use of educational captive-reared cactus
ferruginous pygmy-owls, pygmy-owl skins, or parts of pygmy-owls. These
activities raptors are typically covered by a permit issued under 50
CFR part 21, which governs species protected under the MBTA. To remove
redundant permitting, this proposed 4(d) rule will cover incidental
take resulting from educational and outreach activities, provided the
researcher already holds an appropriate and valid MBTA permit issued
under 50 CFR part 21. These activities can increase public awareness,
engagement, and support for cactus ferruginous pygmy-owl conservation
and recovery.
Education and outreach activities must be coordinated with the
Service prior to commencing work. Coordination can occur in person, by
phone, or through written communications. Education and outreach
activities covered by this proposed 4(d) rule would have to be
consistent with an existing designated recovery program, such as a
final recovery plan, and benefit cactus ferruginous pygmy-owl
conservation through increased public awareness and engagement, which
supports cactus ferruginous pygmy-owl recovery. Education and outreach
qualifying under this exception would not require a permit issued under
section 10(a) of the Act.
Habitat Restoration and Enhancement
Incidental take resulting from habitat restoration or enhancement
projects that improve the viability of cactus ferruginous pygmy-owl
populations and population groups, and have been coordinated and
approved by the Service, is excepted from the take prohibitions under
this proposed 4(d) rule. Habitat restoration and enhancement projects
are needed to increase nest site (cavity) availability; improve habitat
connectivity among cactus ferruginous pygmy-owl population groups;
increase prey availability; improve vegetation structure and health;
and decrease nonnative species, watershed degradation and erosion, and
habitat loss or reduction due to extreme weather events and wildfire.
This proposed 4(d) rule excepts from take prohibitions those
habitat restoration or enhancement activities with the primary or
secondary purpose of improving cactus ferruginous pygmy-owl habitat
conditions across the subspecies' geographical range. Specific habitat
restoration or enhancement actions could include nest box installation;
establishment or protection of nesting substrates (large trees or
columnar cacti) to increase the availability of nest cavities;
restoration or enhancement of native vegetation structure and species;
control or eradication of invasive, nonnative species; riparian
enhancement or restoration; water developments; watershed improvements;
improved habitat connectivity; and fire management.
Prescribed fire within Sonoran Desert vegetation communities is not
excepted in the proposed 4(d) rule. Fire can be an effective tool in
maintaining ecosystem health, which is beneficial to the cactus
ferruginous pygmy-owl, but Sonoran Desert vegetation communities are
not fire-adapted, and use of fire in these vegetation communities must
be carefully implemented or important pygmy-owl habitat elements can be
lost or altered. Therefore, because of the risks associated with the
loss or alteration of pygmy-owl habitat, the use of fire in Sonoran
Desert vegetation communities is not excepted from the take
prohibitions under this proposed 4(d) rule.
Woody vegetation communities provide the most important pygmy-owl
habitat factors, particularly woodland tree canopy cover. Pygmy-owl
habitat is not typically enhanced by actions that would remove woodland
tree cover. Such actions would normally reduce vegetation cover
diversity, pygmy-owl prey diversity, and important predator avoidance
and thermoregulatory cover for the pygmy-owl. Therefore, any action
that would result in more than a minimal reduction or removal of tree
cover (as determined during coordination with the Service) is not
included under the habitat restoration or enhancement take exception in
the proposed 4(d) rule.
Actions that promote the use of, or encourage the growth of,
nonnative vegetation species are not exempted in the proposed 4(d)
rule. Nonnative vegetation species can outcompete and replace native
species that provide important habitat factors for the pygmy-owl. This
outcome is particularly true when nonnative species form monocultures,
resulting in low diversity and dense ground cover that alters natural
fire regimes and reduces pygmy-owl prey diversity and availability.
In order to fall under the activities included under the habitat
restoration or enhancement take exception in the proposed 4(d) rule,
those persons implementing cactus ferruginous
[[Page 72570]]
pygmy-owl habitat enhancement and restoration activities need written
approval from the Service. Prior to approving proposed activities, the
Service will coordinate with the appropriate entities (land management
agencies, Tribal entities, private landowners, etc.).
For all forms of allowable take in the proposed 4(d) rule,
reasonable care will be practiced to minimize the impacts from the
actions. Reasonable care means limiting the impacts to cactus
ferruginous pygmy-owl individuals and populations by complying with all
applicable Federal, State, and Tribal regulations for the activity in
question; using methods and techniques that result in the least harm,
injury, or death, as feasible; undertaking activities at the least
impactful times (e.g., conducting activities that might impact nesting
cactus ferruginous pygmy-owls or nesting habitat only after nesting is
concluded for the year) and locations, as feasible; procuring and
implementing technical assistance from a qualified biologist on
projects regarding all methods prior to the implementation of those
methods; minimizing the number of individuals disturbed in the existing
wild population; implementing best management practices to ensure no
disease or parasites are introduced or spread in pygmy-owl populations,
including the proper use of quarantine and health evaluations; and
preserving the genetic diversity of wild populations.
Permitting and Other Regulations To Cover Take
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: For scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve cactus
ferruginous pygmy-owl that may result in otherwise prohibited take
without additional authorization.
As described above, take can result by direct and indirect impacts,
intentionally or incidentally. Section 7 of the Act regulates
incidental take that occurs incidental to otherwise lawful activities,
which have a nexus to a Federal action agency. Section 7(a)(2) of the
Act requires Federal agencies, including the Service, to ensure that
any action they fund, 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 Section 7 process
helps to conserve and recover the cactus ferruginous pygmy-owl by
evaluating the potential of various activities to adversely affect the
cactus ferruginous pygmy-owl. Section 7 consultations ensure that
Federal actions do not jeopardize the continued existence of the pygmy-
owl and that proposed project activities include appropriate
conservation measures or that reasonable and prudent measures are
included to minimize the impacts of incidental take that is anticipated
to result from implementing a project.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the cactus ferruginous pygmy-owl. However, interagency
cooperation may be further streamlined through planned programmatic
consultations for the species between Federal agencies and the Service,
where appropriate. We ask the public, particularly State agencies and
other interested stakeholders that may be affected by the proposed 4(d)
rule, to provide comments and suggestions regarding additional guidance
and methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
III. Critical Habitat
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). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of
designating critical habitat only, as the abiotic and biotic setting
that currently or periodically contains the resources and conditions
necessary to support one or more life processes of a species.
Conservation, as defined under section 3 of the Act, means to use
and 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
[[Page 72571]]
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 also does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal 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. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
consider unoccupied areas to be essential only where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) 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.
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.
As the regulatory definition of ``habitat'' (50 CFR 424.02)
reflects, 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 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 the 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 those planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through
[[Page 72572]]
management actions resulting from consultations under section 7(a)(2)
of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for the cactus ferruginous pygmy-owl, we
determined that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to cactus ferruginous
pygmy-owl and that those threats in some way can be addressed by
section 7(a)(2) consultation measures. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have
been met and because the Secretary has not identified other
circumstances for which this designation of critical habitat would be
not prudent, we have determined that the designation of critical
habitat is prudent for the cactus ferruginous pygmy-owl.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the cactus
ferruginous pygmy-owl is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. Careful assessments of the economic and environmental impacts
that may occur due to a critical habitat designation are not yet
complete, and we are in the process of working with the States and
other partners in acquiring the complex information needed to perform
those assessments. The information sufficient to perform a required
analysis of the impacts of the designation is lacking. Therefore, we
conclude that the designation of critical habitat for the cactus
ferruginous pygmy-owl is not determinable at this time. As mentioned
above, the Act allows the Service an additional year to publish a
critical habitat designation that is not determinable at the time of
listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We contacted the Ak Chin Indian Community, Apache Tribe of
Oklahoma, Cocopah Indian Tribe, Comanche Nation, Gila River Indian
Community, Hopi Tribe, Pascua Yaqui Tribe, San Carlos Apache Tribe,
Salt River Pima-Maricopa Indian Community, Tohono O'odam Nation,
Tonkawa Tribe of Indians, White Mountain Apache Tribe, Wichita and
Affiliated Tribes, and Yavapai Apache Nation regarding the SSA process
by mail and invited them to provide information and comments to inform
the SSA. Our interactions with these Tribes are part of our government-
to-government consultation with Tribes regarding the pygmy-owl and the
Act. The Tohono O'odham Nation was invited to participate as a member
of the SSA team because they have historically participated on issues
related to the cactus ferruginous pygmy-owl and they have extensive
acreage of pygmy-owl habitat. They accepted the invitation and have
participated in development of the SSA, as well as with pygmy-owls
surveys and monitoring. We will continue to work with Tribal entities
during the rulemaking process.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from the
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Arizona
Ecological Services Field Office.
[[Page 72573]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Pygmy-owl, cactus
ferruginous'' to the List of Endangered and Threatened Wildlife, in
alphabetical order under Birds, to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Pygmy-owl, cactus ferruginous... Glaucidium Wherever found.... T [Federal Register
brasilianum citation when
cactorum. published as a final
rule]; 50 CFR
17.41(l).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. As proposed to be amended at 83 FR 50560 (October 9, 2018), 85 FR
63474 (October 8, 2020), 86 FR 15855 (March 25, 2021), 86 FR 31668
(June 15, 2021), and 86 FR 41917 (August 4, 2021), Sec. 17.41 is
further amended by adding paragraph (l) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(l) Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum).
(1) Prohibitions. The following prohibitions that apply to endangered
wildlife also apply to cactus ferruginous pygmy-owl. Except as provided
under paragraphs (l)(2) and (3) of this section and Sec. Sec. 17.4,
17.5, and 17.7, it is unlawful for any person subject to the
jurisdiction of the United States to commit, to attempt to commit, to
solicit another to commit, or cause to be committed, any of the
following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) General exceptions from prohibitions. In regard to this
species, you may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife,
and (d)(3) and (4) for endangered migratory birds.
(3) Exceptions from prohibitions for specific types of incidental
take. You may take cactus ferruginous pygmy-owl while carrying out the
following legally conducted activities in accordance with this
paragraph (l)(3):
(i) Educational and outreach activities, provided the researcher
already holds an appropriate, valid permit issued under part 21 of this
chapter, which governs species protected under the Migratory Bird
Treaty Act, for educational activities involving the use of live pygmy-
owls, pygmy-owl skins, or parts of pygmy-owls or other raptors.
(ii) Habitat restoration and enhancement activities and projects
that are approved by the Service prior to commencing work.
(A) These activities and projects may include activities that
enhance cactus ferruginous pygmy-owl habitat conditions; improve
habitat connectivity; increase availability of nest cavities; increase
prey availability; reduce invasive, nonnative plant species; and
enhance native plant communities, particularly woodland riparian
communities.
(B) These activities and projects do not include prescribed fire
within Sonoran Desert vegetation communities, any actions that would
result in more than a minimal reduction or removal of tree cover (as
determined by the Service), and actions that use or promote nonnative
vegetation species.
(iii) For all forms of allowable take, reasonable care must be
practiced to minimize the impacts from the actions. Reasonable care
means:
(A) Limiting the impacts to cactus ferruginous pygmy-owl
individuals and populations by complying with all applicable Federal,
State, and Tribal regulations for the activity in question;
(B) Using methods and techniques that result in the least harm,
injury, or death, as feasible;
(C) Undertaking activities at the least impactful times (e.g.,
conducting activities that might impact nesting cactus ferruginous
pygmy-owls or nesting habitat only after nesting is concluded for the
year) and locations, as feasible;
(D) Procuring and implementing technical assistance from a
qualified biologist on projects regarding all methods prior to the
implementation of those methods;
(E) Minimizing the number of individuals disturbed in the existing
wild population;
(F) Implementing best management practices to ensure no diseases or
parasites are introduced into existing cactus ferruginous pygmy-owl
populations; and
(G) Preserving the genetic diversity of wild populations.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-27516 Filed 12-21-21; 8:45 am]
BILLING CODE 4333-15-P