Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Western Distinct Population Segment of the Yellow-Billed Cuckoo
| Published date | 21 April 2021 |
| Citation | 86 FR 20798 |
| Record Number | 2021-07402 |
| Section | Rules and Regulations |
| Court | Fish And Wildlife Service |
Federal Register, Volume 86 Issue 75 (Wednesday, April 21, 2021)
[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Rules and Regulations]
[Pages 20798-21005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07402]
[[Page 20797]]
Vol. 86
Wednesday,
No. 75
April 21, 2021
Part IIDepartment of the Interior-----------------------------------------------------------------------Fish and Wildlife Service-----------------------------------------------------------------------50 CFR Part 17Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Western Distinct Population Segment of the Yellow-
Billed Cuckoo; Final Rule
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 /
Rules and Regulations
[[Page 20798]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2013-0011; FF09E21000 FXES11110900000 212]
RIN 1018-BE29
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Western Distinct Population Segment of the
Yellow-Billed Cuckoo
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the western distinct population segment of the
yellow-billed cuckoo (western yellow-billed cuckoo) (Coccyzus
americanus) under the Endangered Species Act. In total, approximately
298,845 acres (120,939 hectares) are now being designated as critical
habitat in Arizona, California, Colorado, Idaho, New Mexico, Texas, and
Utah. This rule extends the Act's protections to critical habitat for
this species.
DATES: This rule is effective May 21, 2021.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov, and the Sacramento Fish and Wildlife Office
website at http://www.fws.gov/sacramento. Comments and materials we
received, as well as supporting documentation we used or developed in
preparing this rule, are available for public inspection at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.
The coordinates or plot points or both from which the maps are
generated are included in the decisional record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R8-ES-2013-0011 and on the Service's website at http://www.fws.gov/sacramento.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Room W-2605, Sacramento, California 95825; or by telephone
916-414-6600. If you use a telecommunications device for the deaf
(TDD), call the Federal Relay Service (FRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Scope of this rule. The information presented in this final rule
pertains only to the western distinct population segment of the yellow-
billed cuckoo (western yellow-billed cuckoo) (DPS). Any reference to
the ``species'' or to the western yellow-billed cuckoo within this
document only applies to the DPS and not to the yellow-billed cuckoo as
a whole unless specifically expressed. A complete description of the
DPS and area associated with the DPS is contained in the proposed and
final listing rules for the western yellow-billed cuckoo published in
the Federal Register (78 FR 61621, October 3, 2013, and 79 FR 59992,
October 3, 2014).
Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.; hereafter ``Act'' or
``ESA''), any species that is determined to be an endangered or
threatened species requires critical habitat to be designated, to the
maximum extent prudent and determinable. Designations and revisions of
critical habitat can only be completed by issuing a rule.
What this document does. This is a final rule to designate critical
habitat for the western yellow-billed cuckoo. This final designation of
critical habitat identifies areas that we have determined, based on the
best scientific and commercial information available, are essential to
the conservation of the species or otherwise essential for its
conservation. After exclusions of areas under section 4(b)(2) of the
Act, the final critical habitat comprises 63 units and is located in
the States of Arizona, California, Colorado, Idaho, New Mexico, Texas,
and Utah. The total change in area as a result of exclusions or changes
from the revised proposed designation is a reduction of approximately
194,820 acres (ac) (78,840 hectares (ha)). In addition, some of the
areas removed did not contain the physical or biological features or
meet our criteria for critical habitat for the western yellow-billed
cuckoo and were identified based on comments or additional review. The
total area excluded is approximately 172,490 ac (69,808 ha).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat. Section 4(b)(2) also authorizes the Secretary
to exclude areas from the critical habitat if the benefits of excluding
the areas outweigh the benefits of including the areas, unless
exclusion would result in extinction of the species.
Peer review and public comment. We sought comments from six
independent specialists to ensure that our designation is based on
scientifically sound data and analyses. In 2014, we obtained opinions
from four knowledgeable individuals with scientific expertise to review
our technical assumptions, analysis, and whether or not we had used the
best scientific data available. These peer reviewers generally
concurred with our methods and conclusions and provided additional
information, clarifications, and suggestions to improve this final
rule. Information we received from peer review is incorporated in this
final designation of critical habitat. We also received comments from
one of the peer reviewers on our 2020 revised proposed rule. We
considered all comments and information received from the peer
reviewer, species experts, and the public during the comment period for
the 2014 proposed and the 2020 revised proposed designation of critical
habitat.
Previous Federal Actions
On October 3, 2013 (78 FR 61621), we published a proposed rule to
list the western distinct population segment (DPS) of the yellow-billed
cuckoo as threatened. On August 15, 2014 (79 FR 48547), we published a
proposed rule to designate critical habitat for the DPS. On October 3,
2014 (79 FR 59992), we published the final listing rule, which added
the western yellow-billed cuckoo to the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations at
50 CFR 17.11(h) as a threatened species. On February 27, 2020 (85 FR
11458), we published a revised proposed critical habitat designation
and opened a public
[[Page 20799]]
comment period that closed on April 27, 2020. On September 16, 2020 (85
FR 57816), we published a not-warranted 12-month finding on a petition
to delist the western yellow-billed cuckoo. Please refer to the
proposed and final listing and revised proposed critical habitat rules
for the western yellow-billed cuckoo published in the Federal Register
for a detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Revised Proposed Rule
We reviewed the site-specific comments related to critical habitat
for the western yellow-billed cuckoo (see Summary of Comments and
Recommendations), completed our analysis of areas considered for
exclusion under section 4(b)(2) of the Act, reviewed our analysis of
the Physical or biological features (PBFs) essential to the long-term
conservation of the western yellow-billed cuckoo, reviewed the
application of our conservation strategy and criteria for identifying
critical habitat across the range of the western yellow-billed cuckoo
to refine our designation, and completed the economic analysis of the
designation. This final rule incorporates changes to our 2020 revised
proposed critical habitat rule based on the comments that we received,
and have responded to in this document, and considers efforts to
conserve the western yellow-billed cuckoo.
As a result, our final designation of critical habitat reflects the
following changes from the February 27, 2020, revised proposed rule (85
FR 11458):
(1) We revised unit areas based on comments received regarding
areas that did or did not contain the physical or biological features
essential to the conservation of the species.
(2) We revised Federal, Tribal, and private land ownership
information regarding Unit 70 (UT-1) based on information received from
Duchesne County, Utah.
(3) We excluded approximately 172,490 ac (69,808 ha) from entire or
portions of Units as identified in Table 3, Areas Excluded by Critical
Habitat Unit.
(4) In the revised proposed rule, we misidentified the acreage of
off-site restoration areas identified in the Lower Colorado River
Multi-Species Conservation Program Habitat Conservation Plan (LCR MSCP
HCP). We now acknowledge this miscalculation and as a result of the HCP
providing conservation for the western yellow-billed cuckoo and its
habitat, we are excluding from this designation all lands that were
identified as proposed critical habitat within the planning area.
(5) The U.S. Forest Service (USFS) suggested that the Tucson
Audubon Society (MacFarland and Horst 2015) did not survey Unit 44 (AZ-
32, California Gulch). We corrected the unit description with survey
information used to determine occupancy for this unit.
(6) We updated the climate change information with new references
based on comments.
(7) We corrected a number of errors in unit length, acreage, and
descriptions.
(8) We clarified that Rockhouse Demonstration Site on the Salt
River inflow to Roosevelt Lake was not included as critical habitat.
(9) In the revised proposed rule, we failed to identify potential
exclusions for San Carlos Apache parcels on the lower San Pedro River
and Aravaipa Creek and for Eagle Creek on the San Carlos Apache Tribal
lands. These Tribal lands have been excluded. We corrected ownership
and operation of San Carlos Apache Reservoir and Coolidge Dam.
Supporting Documents
In the revised proposed critical habitat rule, we stated that a
draft analysis document under the National Environmental Policy Act
(NEPA) for the designation of critical habitat was made available to
the public for comment. We have now finalized an environmental
assessment with a finding of no significance under NEPA. The document
and finding of no significance is available at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 and from the
Sacramento Fish and Wildlife Office at http://www.fws.gov/sacramento.
See Required Determinations section below for a discussion of our NEPA
obligations for this designation.
We also finalized our information pertaining to our economic
analysis after considering public comment on the draft document. The
final document (IEc 2020, entire) is available at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.
Species Information
The western yellow-billed cuckoo is a migratory bird species,
traveling between its wintering grounds in Central and South America
and its breeding grounds in North America (Continental United States
and Mexico) each spring and fall often using river corridors as travel
routes. Habitat conditions through most of the western yellow-billed
cuckoo's range are often dynamic and may change condition or location
within or between years depending on environmental conditions,
vegetation growth, tree regeneration, plant maturity, stream dynamics,
and sediment movement and deposition. The species' major food resources
(insects) are also similarly variable in abundance and distribution. As
a result, the western yellow-billed cuckoo's use of an area is tied to
the area's habitat condition and food resources, which as stated, can
be variable between and within years. This variability in resources may
cause the western yellow-billed cuckoo to move between areas in its
wintering or breeding grounds to take advantage of habitat conditions
and food availability. For a thorough discussion of the western yellow-
billed cuckoo's biology and natural history, including limiting factors
and species resource needs, please refer to the proposed and final
rules to list this species as threatened published in the Federal
Register on October 3, 2013 (78 FR 61621), and October 3, 2014 (79 FR
59992), (available at http://www.regulations.gov at Docket No. FWS-R8-
ES-2013-0104), and the proposed critical habitat rule, which published
August 15, 2014 (79 FR 48548) (available at http://www.regulations.gov
at Docket No. FWS-R8-ES-2013-0011).
Summary of Comments and Recommendations
We requested written comments from the public on the initial
proposed (2014) and revised proposed (2020) designation of critical
habitat for the western yellow-billed cuckoo during multiple comment
periods. The first comment period opened on August 15, 2014, and closed
on October 14, 2014 (79 FR 48548). The comment period was reopened from
November 12, 2014, to January 12, 2015 (79 FR 67154). On December 2,
2014, we announced a public hearing which was held in Sacramento,
California, on December 18, 2014 (79 FR 71373). On February 27, 2020,
we opened a comment period on the revised proposed critical habitat (85
FR 11458). The comment period closed on April 27, 2020.
In our 2014 proposed rule designating critical habitat, we
contacted appropriate Federal, State, Tribal governments, and local
agencies; scientific organizations; and other interested parties, and
invited them to comment on the proposed critical habitat designation
and 2014 draft economic analysis. We also held a public hearing in
December 2014 in Sacramento, California, and received comments from
scientific experts,
[[Page 20800]]
landowners, and other stakeholders regarding the proposed designation.
On February 27, 2020, with the publication of the revised proposed rule
(85 FR 11458), we again contacted all interested parties including
appropriate Federal and State agencies, Tribal governments, scientific
experts and organizations, and other interested parties and invited
them to submit written comments on the revised proposal by April 27,
2020. We stated that any comments received as a result of the 2014
proposed rule need not be resubmitted and that they would be addressed
in this final rule. Newspaper notices inviting general public comment
were published in numerous locations throughout the range of the
critical habitat designation for both the original and revised proposed
rules.
During the comment period on the 2014 proposed rule, we received
nearly 1,200 written comments as well as over 87,000 form letters on
the proposed critical habitat designation or the draft economic
analysis (IEc 2013, entire). During the comment period on the revised
proposed rule, we received an additional 99 comment letters and over
6,000 form letters on the revised proposed critical habitat designation
or the draft economic analysis (IEc 2019, entire; IEc 2020, entire). We
also received from several parties additional requests for exclusion of
areas that were not identified in the revised proposed rule. We
reviewed each exclusion request and whether the requester provided
information or a reasoned rationale to initiate an analysis or support
an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act: 81 FR 7226; February 11, 2016). All
substantive information provided during each comment period has either
been incorporated directly into this final determination or addressed
in our responses below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review actions under the Act, we solicited
expert opinion on the 2014 proposed critical habitat from six
knowledgeable individuals with scientific expertise that includes
familiarity with the western yellow-billed cuckoo and its habitat,
biological needs, and threats. We received responses from four of the
peer reviewers. In 2020, during the public comment period, we received
comments from one of the peer reviewers regarding our revised proposed
rule. We addressed the 2014 and 2020 peer reviewer comments in this
final rule as appropriate.
We reviewed all the comments we received from the peer reviewers
for substantive issues and new information regarding the western
yellow-billed cuckoo and its habitat use and needs. The peer reviewers
generally concurred with the information regarding the western yellow-
billed cuckoo and its habitat. In some cases, they provided additional
information, clarifications, and suggestions to improve the
designation. Our revised designation was developed in part to address
some of the concerns and information raised by the 2014 peer reviewers.
The reviewers also provided or corrected references we cited in the
proposed rule. The additional details and information have been
incorporated into this final listing rule as appropriate. Substantive
comments we received from peer reviewers as well as Federal, State,
Tribal, and local governments, nongovernmental organizations, and the
public are outlined below.
Comment 1: One peer reviewer recommended discussion of the role
nonnative plant species other than tamarisk (salt cedar) (Tamarix spp.)
play in supporting western yellow-billed cuckoo. The peer reviewer
noted that particularly in western Colorado, Russian olive (Elaeagnus
angustifolia) forms dense stands dominating the understory of the
largest cottonwood galleries along areas identified as critical
habitat. The peer reviewer provided information on a confirmed nest on
July 21, 2008, in Russian olive in revised proposed Unit 69 (CO-2)
along the North Fork of the Gunnison River near the town of Hotchkiss.
The peer reviewer commented that the possible effects to western
yellow-billed cuckoo and its habitat should be considered during
widespread removal of Russian olive and the reviewer recommended rapid
replacement with native shrubs.
Our Response: In response to this comment, in the 2020 revised
proposed critical habitat, we included discussion of the presence and
use of nonnative plant species, including Russian olive, in western
yellow-billed cuckoo habitat (85 FR 11458, at pp. 11466, 11469, 11473).
Comment 2: One peer reviewer suggested adding additional areas
along the Sacramento River, California, based on future plans for
restoration of those sites.
Our Response: We based our designation of areas by selecting
occupied breeding habitat for the western yellow-billed cuckoo. Our
conservation strategy and criteria for identifying occupied areas is
supported by existing information on species' abundance and
distribution. In our analysis, we found that existing habitat
availability along the Sacramento River is sufficient to support a
larger number of breeding birds. As a result, in this final rule, we do
not include additional unoccupied areas, especially if those areas have
not been restored to contain the habitat features necessary for the
species.
Comment 3: One peer reviewer suggested including areas along river
segments to allow for natural stream processes such as bank cutting and
deposition to occur, especially when hardened banks limit this natural
process, thereby limiting the establishment of riparian vegetation.
Our Response: In determining boundaries for the critical habitat
along river segments, we evaluated aerial imagery to map those
vegetated areas along the river segments that we determined contain the
physical or biological features (PBFs) essential to the conservation of
the species and which may require special management considerations or
protection. In most cases, we included areas along rivers and streams
that would allow for natural stream processes such as cutting and
deposition that would allow for such meandering of the river to take
place.
Federal Agency Comments
Comment 4: USFS stated that the critical habitat designation in
Unit 64 CA-2 at Lake Isabella, California, could affect recreation and
grazing opportunities on USFS lands. The U.S. Army Corps of Engineers
(Corps) also commented that designating areas within the floodplain
would disrupt flood control operations and that portions of the unit
within the floodplain of Lake Isabella under conservation easement
should be removed or excluded.
Our Response: As a result of the Federal agency and other public
comments (Kern County and Kern River Watermaster) on the 2014 proposed
designation and discussions with the Corps since the publication of the
2020 revised proposed designation, we revised the extent of the
critical habitat within Unit 64 at Lake Isabella to avoid those areas
typically inundated by the lake or areas within the floodplain.
Although the western yellow-billed cuckoo may use these areas during
periods of drought or other times when the lake is drawn down, these
areas are temporary and extremely variable and may not contain the
physical or
[[Page 20801]]
biological features on a long-term basis. We also identified and
excluded portions of the unit under conservation easement under section
4(b)(2) of the Act. Our rationale for excluding certain portions of the
unit is outlined below. See Exclusions, Private or Other Non-Federal
Conservation Plans or Agreements and Partnerships, in General.
Comment 5: The Corps requested exclusion of Unit 4 (AZ-2) and the
portion of Unit 31 (AZ-29) for operation and maintenance of Alamo Dam
and Lake in Arizona.
Our Response: We identified the entire Unit 4 (AZ-2) at Alamo Lake
and a portion of Unit 31 (AZ-29) upstream of the lake on Big Sandy
River for possible exclusion in our proposed rule and have excluded
these areas based on the Arizona Game and Fish Department (AGFD) Alamo
Lake State Wildlife Area management plan. We also acknowledge the
multi-year process underway among the Corps and partners to develop a
long-term operation plan for Alamo Dam and Lake that benefits
environmental resources while meeting the dam's maintenance needs
(USACE 2020, entire). Although the original authority for the Corps'
Alamo Dam and Lake was for flood control, the Water Resources
Development Act of 1996 (Pub. L. 104-303) authorized the operation of
the dam to provide fish and wildlife benefits both upstream and
downstream of the dam as long as these actions do not reduce flood
control and recreation benefits. The revised operations are designed to
improve the currently degraded riparian western yellow-billed cuckoo
and southwestern willow flycatcher habitat (Empidonax traillii extimus)
by providing the magnitude, timing, and duration of flow that
encourages regeneration and maintenance of riparian vegetation (USACE
2020, pp. 14-16). Benefits are expected both upstream and downstream of
Alamo Dam (see Exclusions, Private or Other Non-Federal Conservation
Plans or Agreements and Partnerships, in General).
Comment 6: The USFS reiterated that overgrazing does not occur on
most of the 20 units in the Coronado National Forest that were proposed
as critical habitat. The USFS requested removal of the statement
regarding overgrazing from the final rule.
Our Response: Our discussion of overgrazing is in reference to the
special management and protections that may be required in areas
identified as critical habitat. Grazing operations that are properly
managed, such as USFS lands under management under the Coronado
National Forest Land Management Plan and Allotment Management Plans,
may be in compliance with grazing standards but may still result in
reduced riparian habitat quality and quantity over time for western
yellow-billed cuckoos.
Comment 7: The Department of Energy (DOE) through the Western Area
Power Administration (WAPA) and two local private energy companies
requested information on how maintaining rights-of-way for electrical
power transmission lines would be treated in areas of critical habitat
and requested that these areas be excluded from the designation. The
commenters stated that the designation would limit maintenance of the
rights-of-way and potentially cause increased risk of wildfires, power
outages, or injury to human life and property.
Our Response: With respect to rights-of-way maintenance activities
in areas of critical habitat, Federal agencies that authorize, carry
out, or fund actions that may affect listed species or designated
critical habitat are required to consult with us to ensure the action
is not likely to jeopardize listed species or destroy or adversely
modify designated critical habitat. This consultation requirement under
section 7 of the Act is not a prohibition of Federal agency actions;
rather, it is a means by which they may proceed in a manner that avoids
jeopardy or adverse modification. Even in areas absent designated
critical habitat, if the Federal agency action may affect a listed
species, consultation is still required to ensure the action is not
likely to jeopardize the species. Because the areas designated as
critical habitat are occupied and consultation will be required to meet
the jeopardy standard, the impact of the critical habitat designation
should be minimal and administrative in nature. In some instances, we
have worked with entities with on-going maintenance requirements such
as in rights-of-way to develop programmatic consultations that help to
conserve habitat while still meeting an entity's operational
responsibilities, and we are willing to meet with DOE and WAPA to
discuss potential programmatic consultation activities. In addition,
existing consultation processes also allow for emergency actions for
wildfire and other risks to human life and property; critical habitat
would not prevent the commenters from fulfilling those obligations.
Lastly, we note that actions of private entities for which there is no
Federal nexus (i.e., undertaken with no Federal agency involvement) do
not trigger any requirement for consultation.
In regard to the commenter's request to exclude their rights-of-way
areas from the critical habitat designation, the commenters provided
general statements of their desire to be excluded but no information or
reasoned rationale as described in our preamble discussion in our
policy on exclusions (see Policy Regarding Implementation of Section
4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016)
(Policy on Exclusions) or as described in our 2020 revised proposed
rule (85 FR 11502). For the Service to properly evaluate an exclusion
request, the commenter must provide information concerning how their
rights-of-way maintenance activities would be limited or curtailed by
the designation, and hence the need for exclusion. In addition, as
noted above, the requirement to consult with us on Federal actions that
may affect designated critical habitat is designed to allow actions to
proceed while avoiding destruction or adverse modification of critical
habitat.
In the Policy on Exclusions, we outline the procedures we undertake
when determining if an area should or should not be excluded. In
determining whether or not to exclude an area, the Secretary is given a
great deal of discretion for undertaking an exclusion analysis or
determining to exclude an area. In our review of their request of
exclusion, we determined that the effect of having critical habitat
designated in their rights-of-way would be to require consultation with
us for those Federal agency actions that may affect such designated
critical habitat. In addition, we determined that this consultation
requirement would not preclude these rights-of-way maintenance
activities from occurring, and subsequently would not result in a
potential for increased risk of wildfires, power outages, or injury to
human life and property.
Comment 8: The U.S. Bureau of Reclamation (Reclamation) requested
that the full pools of Elephant Butte and Caballo Reservoirs be
excluded from critical habitat designation based on a precedent set by
the Rio Grande silvery minnow (Hybognathus amarus) designated critical
habitat, a variety of commitments associated with section 7
consultations and their Southwestern Willow Flycatcher and Yellow-
billed Cuckoo Management Plan. The full pool of Elephant Butte
Reservoir is considered to be River Mile (RM) 62 by Reclamation.
Our Response: The Service commends Reclamation on their decision to
allow for the temporary habitat to develop within Elephant Butte and
Caballo Reservoirs and other commitments identified in their
Southwestern Willow Flycatcher and Yellow-billed Cuckoo
[[Page 20802]]
Management Plan. We have reviewed the information presented by
Reclamation for Elephant Butte Reservoir and information on the species
use and habitat conditions for the western yellow-billed cuckoo and
determined that an exclusion for Elephant Butte Reservoir (Unit 37, NM-
6B) to RM 54 is appropriate for exclusion.
We also reviewed Reclamation's request for excluding the two areas
associated with Caballo Reservoir (Unit 39, NM-8A and NM-8B) and
determined that exclusion of these areas is appropriate. See Exclusions
(Federal Lands) for our description and analysis for excluding Elephant
Butte and Caballo Reservoirs under section 4(b)(2) of the Act from the
final designation.
Comment 9: Reclamation is concerned that critical habitat could
impose unnecessary burdens on water storage and delivery operations in
Arizona for Reclamation and its partners. The areas of concern include:
Habitat downstream of Horseshoe Dam (Unit 11, AZ-9A); the eastern part
of Unit 17 (AZ-15) on the Lower San Pedro and Gila Rivers upstream of
Dripping Springs Wash to San Carlos Reservoir on the Gila River because
this reach cuts through a narrow canyon, is devoid of vegetation, and
surveys have not detected western yellow-billed cuckoos; the 2020
proposed Unit 11 (AZ-9B Horseshoe Dam) extension from the south end of
Horseshoe Reservoir to below Horseshoe Dam because the additional area
downstream to Sheep Creek is canyon-bound with narrow stringers of
trees and does not currently support suitable breeding or foraging
habitat and because the lower segment occurs within the Bartlett
Reservoir operating space that precludes establishment and persistence
of suitable nesting and foraging habitat.
Our Response: Habitat for many species, including the western
yellow-billed cuckoo, along rivers, dams, and reservoirs fluctuates
over time as habitat transitions due to natural or human-induced
succession. At any given time across the range, habitat may be
regenerating, growing into suitability, growing out of suitability,
desiccated from drought, or killed from scouring floods or fire. These
processes are expected to occur over time in critical habitat. We agree
that proposed critical habitat should not have been identified in the
steeper and narrower portions of Unit 17 (AZ-15) on the Gila River and
have removed these areas from the final designation. Although some
breeding and foraging habitat exists in this upper reach, it is of
lesser quality than habitat farther downstream. We also agree that the
southern boundary of the additional Unit 11 (AZ-9B Horseshoe Dam)
segment where PBFs are lacking does not constitute critical habitat.
The southern terminus of this extension is now the same as the terminus
of the critical habitat for the southwestern willow flycatcher. In the
revised proposed rule, we identified portions of Unit 11 (AZ-9A and AZ-
9B) for consideration to be excluded under the Salt River Project's
(SRP's) Horseshoe and Bartlett Reservoir HCP and excluded these areas
from the final designation (see Private or Other Non-Federal
Conservation Plans Related to Permits Under Section 10 of the Act).
Comment 10: Reclamation requested a correction to our description
of how western yellow-billed cuckoo habitat is maintained in Unit 1
(CA/AZ-1) and Unit 2 (CA/AZ-2) as a result of the LCR MSCP. Reclamation
points out the inaccuracy of the statement that the hydrologic
processes needed to regenerate and maintain breeding habitat occur
within these units but depends on river flows and flood timing. The
majority of the western yellow-billed cuckoo breeding that occurs on
the mainstem of the Lower Colorado River, including habitat at Palo
Verde Ecological Preserve, Cibola Valley Conservation Area, Cibola
National Wildlife Refuge Unit #1 Conservation Area, and the `Ahakhav
Tribal Preserve, has been created through tree plantings and can be
maintained only through active irrigation as the habitat is
disconnected from the river channel on the upland side of the levees.
Our Response: We have reviewed the information and have revised the
information regarding Unit 1 and Unit 2 in this final rule to clarify
that most of the western yellow-billed cuckoos breeding along the Lower
Colorado River are breeding in revegetation sites created by the LCR
MSCP. Because these units have been excluded (see Exclusions) from the
final designation, we removed the Unit 1 and 2 descriptions and provide
them in our supporting documentation (Service 2020b, entire).
Comment 11: The U.S. Customs and Border Protection under the
Department of Homeland Security (DHS/CBP) requested that the Roosevelt
Reservation portion of critical habitat in Units 1, 16, 20, 21, 44, 45,
52, and 61 along the U.S./Mexico border be considered for exclusion
under section 4(b)(2) of the Act for national security reasons and for
being exempt from environmental regulations (DHS 2020, entire). The
Roosevelt Reservation is a 60-ft (18-m) wide strip of land owned by the
Federal Government along the United States side of the U.S./Mexico
border in California, Arizona, and New Mexico.
Our Response: We have reviewed DHS/CBP's request and have excluded
the 60-ft (18-m) area of the Roosevelt Reservation from the final
designation. Please see Exclusions (Exclusions Based on Impacts on
National Security and Homeland Security) for our analysis of the DHS/
CBP request for exclusion for border units within the Roosevelt
Reservation.
Comment 12: The U.S. International Boundary and Water Commission
(IBWC), expressed concern that the designation of critical habitat
along the Rio Grande and other areas (Units 1, 2, 37, 39, and 41) would
hinder the implementation of the 1906 Convention with Mexico or the
requirements to deliver water under the Rio Grande Compact. Therefore
they requested exclusion of their lands from these units. IBWC also
requested an exclusion of Unit 20 (AZ-18 Santa Cruz River) to ensure
its permit requirements and operation of the Nogales International
Wastewater Treatment Plant are not impacted.
Our Response: Several of the areas identified by the IBWC have
already been excluded entirely or in part from the final designation
based on conservation and management of the areas by other entities and
thus are not addressed further here. These areas include Unit 1 and 2
along the lower Colorado River, portions of Unit 37 on the Rio Grande,
Unit 39 at the Caballo Reservoir, and Unit 41 at Seldon Canyon and
Radium Springs (see Exclusions, Private or Other Non-Federal
Conservation Plans or Agreements and Partnerships, in General Private
or Other Non-Federal Conservation Plans or Agreements and Partnerships,
in General) for a full discussion of our exclusion analyses). We note
that IBWC would still need to consult for actions which may affect the
species under section 7 of the Act to ensure they do not jeopardize the
species. The only area remaining within the designation is a portion of
Unit 37 (NM-6B) at Elephant Butte Reservoir.
With respect to the remaining area within Unit 37 (NM-6B), we have
no information indicating that designation of these areas as critical
habitat would prevent IBWC from implementing the treaty or meeting
their water delivery commitments, or would otherwise disrupt water
management actions. For example, our economic analysis did not identify
water delivery or other water management actions as incurring
significant costs as a result of designating these areas, nor did it
anticipate that water operations would
[[Page 20803]]
be significantly affected. Moreover, the IBWC did not specify whether
it was requesting exclusion based upon national-security or homeland-
security reasons, nor explain how treaty implementation would fit
within these possible exclusions. IBWC did not provide any other
information or a reasonably specific justification showing an
incremental impact to national security or homeland security from
designation, as described in our preamble discussion in our Policy on
Exclusions (81 FR at 7231). Nor did the IBWC provide any reasoned
explanation of how treaty implementation would be affected by a
designation, and thus we have no basis to exclude this area based on
treaty commitments. Additionally, our 2020 revised proposed rule
designating critical habitat for the western yellow-billed cuckoo
requested information on how properties for which exclusions were
requested are managed and protected, noting that without this
information, we could not weigh the benefits of a potential exclusion
in comparison to inclusion (85 FR 11458, 11502 (February 27, 2020)).
Having received no information, we have no basis to exclude the
requested portions of Unit 37.
In regard to the IBWC's request to exclude areas in Unit 20 due to
potential impacts to waste water treatment facilities, we have no
information indicating that such impacts are likely. Due to the arid
nature of the Southwest and lack of consistent water flows, waste water
treatment facilities often assist in maintaining river flows and may
benefit riparian habitat (Luthy et al. 2015, entire). As a result, we
do not anticipate significant changes, if any, for the operation of
waste water treatment facilities due to the designation of critical
habitat. Moreover, the IBWC again did not provide any supporting
information, as described above according to our Policy on Exclusions
(81 FR at 7231), or our request for information in the 2020 revised
proposed rule designating critical habitat (85 FR at 11502). As a
result, we could not initiate a review of information for a potential
exclusion and did not exclude areas along the Santa Cruz River from
Unit 20.
Comment 13: The IBWC provided two comments regarding the units
designated along the U.S./Mexico border. First, they concurred with the
DHS/CBP's request for the exclusion of the 60-ft (18-m) Roosevelt
Reservation in California, Arizona, and New Mexico, stating they
coordinate with DHS/CBP on vegetation clearing within the 60-ft (18-m)
Roosevelt Reservation. Second, IBWC recommended an additional exclusion
so that the exclusion would extend to 150-ft (46-m) from the U.S./
Mexican border for national security and access reasons. IBWC deferred
to the National Park Service (NPS) for critical habitat designated
along the border in Texas (Unit 72, TX-1).
Our Response: We have excluded the 60-ft (18-m) Roosevelt
Reservation from this final designation based on DHS/CBP's request in
support of their national-security mission (see Comment 11 and
Exclusions, Exclusions Based on Impacts on National Security and
Homeland Security). We are not aware of any reason why this 60-ft (18-
m) exclusion would be insufficient to provide security and access, or
why extending the exclusion out to 150-ft (46-m) along the border with
Mexico would be necessary for ensuring security and access. The IBWC
provided general statements of their desire to be excluded but no such
information or reasoned rationale that the critical habitat designation
would impact their activities as described in our preamble discussion
in our Policy on Exclusions (81 FR at 7231), or as requested in our
2020 revised proposed rule (85 FR at 11502). Moreover, the IBWC did not
provide information showing how designating areas beyond the 60-foot
exclusion would harm national-security or homeland-security interests.
In the preamble to the Policy on Exclusions, we made clear that a
Federal agency's reference to national-security concerns does not in
itself require an exclusion. Rather, the Federal agency must ``provide
a reasonably specific justification of an incremental impact on
national security that would result from the designation of that
specific area as critical habitat'' (81 FR at 7231). In light of the
absence of information on, or reasonably specific justification of, how
designating these areas could raise national-security concerns, we do
not consider this request to meet the initial burden described in our
policy that the agency requesting a national security exclusion must
provide a reasonably specific justification (81 FR at 7231). We
reiterated this requirement to support a request for exclusion based on
national security reasons in our 2020 revised proposed rule designating
critical habitat for the western yellow billed cuckoo (85 FR at 11503).
State Comments
Comment 14: The New Mexico Interstate Stream Commission requested
that Unit 37 (NM-6A and NM-6B, Middle Rio Grande) be excluded in
entirety based on the efforts of the Middle Rio Grande Endangered
Species Collaborative Program (Program) and that this Program should be
treated similarly to that of the LCR MSCP and others.
Our Response: In our analysis for exclusions for Unit 37, we
decided to exclude the entire NM-6A (7,238 ac (2,929 ha)) and portions
of NM-6B (11,367 ac (4,600 ha)). Exclusion of Unit 37 (NM-6A) was based
on Tribal management and partnerships through the Santa Ana Pueblo, the
Santa Domingo Tribe, Cochiti Pueblo, and the San Felipe Pueblo (see
Exclusions, Tribal Lands). Because the area identified in Unit 37, NM-
6B is part of Elephant Butte Reservoir managed by Reclamation,
exclusion of portions of that unit were based on management of the area
(see Comment 8 above and Exclusions, Federal Lands).
In response to the Commission's request that the two units be
excluded in their entirety based on the Middle Rio Grande Endangered
Species Collaborative Program (Program), we have determined that the
exclusion would not be appropriate for several reasons. Although we
commend the Program for investing time, effort, and funding for
conservation on the Middle Rio Grande, the habitat conservation efforts
to date that have been implemented are focused on instream restoration
for the Rio Grande silvery minnow, and conservation efforts for the
western yellow-billed cuckoo have been mostly associated with
surveying, monitoring, and non-habitat related efforts (MRGESCP 2003,
entire). In identifying critical habitat for the western yellow-billed
cuckoo, we identified those areas that meet the definition of critical
habitat at section 3(5)(A) of the Act. Although management actions for
one listed species may overlap other species' habitat or be mutually
beneficial to multiple listed species, the physical and biological
features in occupied habitat for yellow-billed cuckoo differ from the
physical and biological features identified for the Rio Grande silvery
minnow. We reviewed the habitat restoration efforts conducted by the
Middle Rio Grande Endangered Fish Recovery Program and found that the
vast majority of habitat management actions were focused on instream
water management and fish habitat and not western yellow-billed cuckoo
habitat. Instream habitats do not contain the physical or biological
features essential to the conservation of the western yellow-billed
cuckoo and therefore are not considered critical habitat. As a result,
excluding these areas based on management for listed fish species does
not meet our criteria for exclusion.
[[Page 20804]]
Comment 15: We received comments from the Arizona Game and Fish
Department (AGFD) on the proposed and revised proposed rule. In 2014,
the AGFD suggested removing areas from the proposal based on the areas
being in poor condition or not supporting breeding western yellow-
billed cuckoos. In 2020, the AGFD expressed that the revised proposed
rule was inconsistent, did not clearly define essential habitat,
incorrectly identified western yellow-billed cuckoos as a habitat
generalist, inappropriately included migration and stop-over habitat
that inflates areas needed, did not provide a location where separation
of rangewide breeding habitat and southwest breeding occurs, and places
regulatory burdens on the State. AGFD also stated that the Service
defines all habitats where the species breeds, feeds, migrates, and
stops over as critical habitat, thus inappropriately imposing Federal
regulatory restrictions on all landowners which will require both
Federal and State resources to manage. AGFD commented that time would
be more appropriately spent on other conservation programs to benefit
listed species. AGFD claimed that the revised designation violates 16
U.S.C. 1532 (5)(C), which states that critical habitat ``shall not
include the entire geographical area which can be occupied by the
threatened or endangered species'' and that the Service has arbitrarily
chosen to propose an inappropriate designation of critical habitat, and
ignore the true intent of the purpose of critical habitat in the
revised proposed rule. The AGFD questioned the validity of designating
critical habitat for the western yellow-billed cuckoo, if there is not
a specific habitat type that can be determined as critical. The
proposed rule described a variety of habitat types (i.e., mesquite
bosques, tamarisk stands, xeroriparian areas, cottonwood-willow
galleries, desert scrub and grassland drainages, etc.) as important
breeding habitat. If these habitats are all important breeding
habitats, as described, AGFD stated that the species should be
considered a habitat generalist and no critical habitat should be
designated (e.g., similar to the bald eagle). If this is not the
situation, AGFD stated that the revised proposed rule needs to be
rescinded and redrafted to remove habitat that is used intermittently
or occasionally for breeding from the designation of critical habitat.
AGFD also stated that there are several factual inconsistencies in the
proposed rule that require the proposed rule be rescinded. These
inconsistencies include: An over-inflation of the importance of
tamarisk as breeding habitat; unverified breeding pair information; and
arbitrary and unsupported estimation of pairs. The AGFD recommended
removing unverified units and excluding certain State lands under
conservation management and that the Service should assist the States
with funds for monitoring western yellow-billed cuckoo populations and
allow partners to explore additional methods to restore habitat to
benefit the western yellow-billed cuckoo. The AGFD expressed concern
that the economic analysis does not fully capture economic impacts to
State agencies. The commenter noted that many State agencies receive
Federal funds to conduct projects, including wildlife conservation
projects. Because of that potential Federal nexus, the commenter
suggested that State agencies could incur incremental impacts. Lastly,
the AGFD stated that the Service should finalize its determination on
the petition to delist the species prior to finalizing critical
habitat.
Our Response: Part of our reasoning for revising our 2014 proposed
critical habitat was in response to comments from the AGFD on the
description of the physical and biological features needed by the
western yellow-billed cuckoo and to remove areas of degraded habitat or
not used by the species. As a result of AGFD's and other comments and
information received, we removed or reduced a number of areas from the
revised proposed designation. We revised the description of the habitat
used by the species, including a description of the geographic area
where southwest breeding habitat PBFs are found. We are not required to
delineate or map a specific boundary line between the identified PBFs
as requested by the AGFD.
The Service did not include all habitats where the species breeds,
feeds, migrates, and stops over as critical habitat. Our designation of
critical habitat focuses on selected areas used for breeding by the
western yellow-billed cuckoo, and as a result purposefully does not
include all breeding areas used by the species.
We do not consider the western yellow-billed cuckoo to be a habitat
generalist. As explained in our revised proposed rule, western yellow-
billed cuckoos in ephemeral drainages in the southwestern United States
are found in drainages with sparse, patchy, or dense tree cover, high
humidity, and increased insect availability. Our description of habitat
and inclusion of additional PBFs for the species is due to greater
specificity as to the types of habitat used by the western yellow-
billed cuckoo and not an abandonment or reclassification of habitat
historically described for the species. Ephemeral drainages associated
with monsoon events are relatively small and within a specific
geographic area in southeastern Arizona.
In response to AGFD's questions regarding our methodology for
determining occupancy, we followed the Act's requirement that we
determine occupancy based on areas that are occupied at the time of
listing. We revised our language within the unit descriptions to more
accurately describe occupancy status of the areas. We agree that survey
information in Arizona identified by Corman and Magill (2000) cannot
provide definitive occupancy or breeding information due to the survey
methodology used in the study. We also agree that statewide protocol
surveys would provide additional information on western yellow-billed
cuckoo distribution and breeding. We used numerous sources to make our
determination of occupancy and breeding status for the areas identified
as critical habitat; we determined that these sources viewed in
combination constitute the best scientific and commercial information
available.
Under the Act, we are required to designate critical habitat as
long as we find that the designation is prudent and determinable as we
did for the western yellow-billed cuckoo. Given that the western
yellow-billed cuckoo in Arizona occupies a variety of riparian habitats
and its range overlaps with several other listed species, designating
critical habitat would potentially provide additional funding through
section 6 of the Act and support the State's other conservation
programs.
Tamarisk can provide habitat for the western yellow-billed cuckoo,
especially in areas where altered river flows have caused the native
vegetation to become degraded. We compiled the currently known
information for western yellow-billed cuckoo's use of tamarisk and
included information in the rule. Western yellow-billed cuckoos breed
in tamarisk, especially if mixed with other native habitat.
Regarding economic costs to State agencies, exhibit 3 of the
economic analysis presents the unit incremental administrative costs of
section 7 consultation used in the economic analysis. The total unit
cost presented in that exhibit includes costs to the Service, other
Federal agencies, and third parties. State agencies receiving Federal
funds to conduct projects would be considered third parties in
consultation and thus are represented in the cost estimates produced by
the economic analysis. The analysis estimates that the incremental
costs
[[Page 20805]]
incurred by third parties during the consultation process would range
from $510 to $880 per consultation. In addition, the analysis forecasts
the likely number of section 7 consultations based on consultations
that have occurred since the listing of the western yellow-billed
cuckoo in 2014, which have included third parties, such as State
agencies. Thus, State agency consultation activity is captured in both
the projection of the number of consultations and the unit cost of
these consultations.
We completed our status review and published our not warranted 12-
month finding in the Federal Register on September 16, 2020 (85 FR
57816). We are under a court-ordered deadline to have a final
designation submitted to the Federal Register by February 5, 2021.
AGFD recommended exclusion of some AGFD properties under HCPs or
conservation management. In our evaluation of areas to be excluded from
the final designation, we identified the Upper Verde Wildlife Area, the
Alamo Lake Wildlife Area, and State lands covered under the LCR MSCP
(see Exclusions).
Comment 16: The California Department of Fish and Wildlife (CDFW)
provided additional observation information for the Sacramento Valley
(Butte Creek) and for areas adjacent to the Owens River in California
(Hogback Creek and Baker Creek) and requested additional areas be
considered as critical habitat.
Our Response: In determining those areas we consider essential to
the conservation of the species as critical habitat, we developed a
conservation strategy for the western yellow-billed cuckoo that focuses
on core areas where the western yellow-billed cuckoo breeds
consistently in relatively high numbers or is breeding in areas which
are unique. Although the western yellow-billed cuckoo may be found in
additional areas throughout its range, not all areas meet our
definition of essential as outlined in our conservation strategy. Of
the three sites requested by the CDFW to include, only the Butte Creek
site has shown to include sufficient numbers of presumably breeding
western yellow-billed cuckoos, with the Hogback and Baker Creek sites
showing few individuals with only intermittent use. We did not consider
the Butte Creek site to meet our designation criteria because the area
is not part of the core breeding area. Another nearby site that has
been more consistently occupied (Unit 63, CA-1, Sacramento River) and
has already been identified as critical habitat meets our conservation
goals for this geographic area.
Comment 17: The California Department of Water Resources (DWR)
stated that the designation in Unit 63 (CA-1) along the Sacramento
River would cause conflicts with flood management requirements under
the Central Valley Flood Protection Act of 2008 (CVFPA). The DWR stated
that they have developed the Central Valley Flood Protection Plan
(CVFPP) to comply with the CVFPA to improve public safety,
environmental stewardship, and long-term economic stability in its
management of this critical water resource infrastructure. The DWR
requested exclusion of the area based on public safety, economic
concerns, and existing management.
Our Response: We fully support the DWR's mission of water resource
management and stream flows and emergency actions necessary to protect
the public. As described above, both our Policy on Exclusions and our
revised proposed rule indicated that entities requesting exclusion must
provide a reasoned rationale in support of the exclusion in order for
the Service to conduct a full exclusion analysis. Here, DWR provided
general statements of their desire to be excluded but did not provide
information or a reasoned rationale on the impact of the designation to
its activities for us to initiate an analysis or support an exclusion.
As a result, we have determined that the designation of critical
habitat would not disrupt their activities for flood management or
water delivery because the habitat along the Sacramento River is in
areas of natural stream conditions without flood control or water
delivery structures managed by the DWR.
Comment 18: The California Central Valley Flood Protection Board
(CVFPB), along with numerous other local water agencies, expressed
concern that flood control infrastructure and facilities were within
the critical habitat boundary and that the designation would limit the
agencies' ability to operate and maintain as well as improve and alter
these flood control facilities. The CVFPB identified flood protection
features such as levees, weirs, bypasses, water control gates, bridges,
pipelines, conduits, irrigation pumps, buildings, structures, and
underground and overhead utilities as being those types of flood
control features of particular concern.
Our Response: Critical habitat is defined by the existence of
specific physical or biological features for a species that are
essential to the conservation of the species and which may require
special management considerations or protection. The facilities and
features described by the CVFPB do not contain the physical or
biological features essential to the conservation of the western
yellow-billed cuckoo and thus are not critical habitat. In our
description of the physical or biological features, we specifically
state that critical habitat does not include humanmade structures (such
as buildings, aqueducts, runways, roads, bridges, and other paved or
hardened areas as a result of development) and the land on which they
are located existing within the legal boundaries of the critical
habitat units designated for the species on the effective date of this
rule. Due to the scale on which the critical habitat boundaries are
developed, some areas within the units' legal boundaries may not
contain the physical or biological features and therefore are not
considered critical habitat.
Comment 19: Colorado Department of Natural Resources, Colorado
Riverfront Commission, Town of Palisade, Delta County Commissioners,
Montrose Board of County Commissioners, City of Montrose, Gunnison
County, Grand Valley Water Users Association/Orchard Mesa Irrigation
District/Ute Water Conservancy District, Associated Governments of
Northwest Colorado, and Club 20 asserted that designating critical
habitat in Colorado is not appropriate due to being on the fringe of
the DPS' range. They stated that areas where western yellow-billed
cuckoo are routinely detected are limited and most detections are
sporadic, representing single or very small numbers of individuals with
limited documentation of recent breeding in western Colorado;
therefore, these units will not make a significant contribution towards
conservation of the species.
Our Response: Although limited breeding is known to occur in
Colorado, western yellow-billed cuckoo consistently use the areas
identified in Units 68 and 69 (CO-1 and CO-2). These areas fall into
category 3 of our conservation strategy as they are large river systems
outside of the Southwest that occur in different ecological settings
that are consistently being used as breeding areas, thus contributing
to the ecological representation and redundancy of the species.
Maintaining breeding areas throughout the range of the species allows
year-to-year movements to take advantage of any spatial and temporal
changes in habitat resources and food abundance. These areas are
occupied and contain the PBFs essential to the conservation of the
species and which may require special management.
[[Page 20806]]
Comment 20: The Colorado Department of Natural Resources, Mesa
County Commissioners, Grand Valley Water Users Association/Orchard Mesa
Irrigation District/Ute Water Conservancy District, and Club 20
strongly concur with the proposed exclusion of the Walter Walker State
Wildlife Area (SWA), Colorado River Wildlife Management Area, and James
M. Robb State Park from critical habitat. They additionally request
exclusion of the Leatha Jean Stassen SWA (near the Walter Walker SWA)
and Tilman Bishop SWA on eastern edge of Unit 68.
Our Response: Based on our consideration of proposed exclusions and
land management information received from Colorado Parks and Wildlife
and Colorado Department of Natural Resources, we found that the James
M. Robb Colorado River Sate Park (CRSP), and the Leatha Jean Stassen,
Walter Walker, and Tilman Bishop SWAs are all managed in ways that
promote cottonwood and willow growth while minimizing nonnative plants
and noxious weeds, beneficial to western yellow-billed cuckoo.
Additionally, the exclusion of these areas is likely to be beneficial
in maintaining a working partnership with CPW. As a result of our
exclusion/inclusion benefits analysis, the Secretary has determined it
appropriate to exclude these areas from the designation. See
Exclusions, Private or Other Non-Federal Conservation Plans or
Agreements and Partnerships, in General.
Comment 21: Colorado Department of Natural Resources (along with
other commenters) stated that rivers in Colorado and Utah are already
managed to benefit western yellow-billed cuckoo due to the existing
recovery program and designated critical habitat for listed fish
(Colorado pikeminnow (Ptychocheilus Lucius), razorback sucker
(Xyrauchen texanus), bonytail (Gila elegans), and humpback chub (Gila
cypha)), such that critical habitat does not need to be designated.
Several commenters stated that the Upper Colorado River Endangered Fish
Recovery Program and San Juan River Basin Recovery Implementation
Program were not cited in the proposed rule as providing protections
for western yellow-billed cuckoo and that areas identified as critical
habitat for the western yellow-billed cuckoo should be excluded based
on implementation of the recovery program.
Our Response: Areas along the San Juan River were not included in
the 2020 revised proposed designation and are not included in this
final designation. In identifying critical habitat for the western
yellow-billed cuckoo, we identified those areas occupied by the species
at the time of listing, identified the physical and biological features
essential to conservation of the species, and then determined which of
these features within identified areas may require special management
considerations or protections. Although management actions for one
listed species may overlap habitat or be mutually beneficial to
multiple listed species, we identified the specific physical and
biological features and geographic locations for yellow-billed cuckoo
for this designation. The physical and biological features and occupied
habitat for yellow-billed cuckoo differ from the physical and
biological features identified for the four listed fish. We reviewed
the habitat restoration efforts conducted by the Upper Colorado River
Endangered Fish Recovery Program and found that the vast majority of
habitat management actions were focused on instream water management
and fish habitat and not western yellow-billed cuckoo habitat. As a
result, excluding these areas based on management for listed fish
species does not meet our criteria for exclusion.
Comment 22: Colorado Department of Natural Resources requested
further consideration of Colorado conservation efforts that focus on
private lands, stating that critical habitat designation may reduce
landowner's willingness to work voluntarily to benefit a species. The
Department provided a list of conservation projects that have been
implemented in partnership by numerous Federal and private entities
that have helped to conserve western yellow-billed cuckoo and its
habitat.
Our Response: The list of wetland and riparian habitat projects
from Partners for Fish and Wildlife, Natural Resources Conservation
Service (NRCS) and other local environmental groups and private
landowners shows eight projects since the listing of western yellow-
billed cuckoo, two of which are in Mesa County, Colorado. Because the
programs have been working in partnership and implementing and
coordinating such conservation efforts that are partly coordinated by
the Service and NRCS, we do not expect private landowner participation
in future conservation efforts will be curtailed as a result of
designating critical habitat. As shown by the implementation of the
various projects, the program has been successful in getting private
and non-Federal partners to conserve sensitive species and their
habitat.
Comment 23: The Colorado Department of Natural Resources and Club
20 recommend exclusions of critical habitat Unit 37 (NM-6B) because the
area has already been analyzed for effects to yellow-billed cuckoo in a
2016 biological opinion for Reclamation operations at Elephant Butte
Reservoir, New Mexico. Additionally, an existing management plan (2012)
is working effectively. These commenters also recommended exclusion of
critical habitat Unit 39 (NM-8A and NM-8B) and that Reclamation extends
their 2012 management plan to cover this area.
Our Response: The proposed critical habitat within Unit 37, NM-6B
(Elephant Butte Reservoir) will be excluded from critical habitat due
to Reclamation's management plan to benefit western yellow-billed
cuckoo. Tribal lands within Unit 37 (NM-6A) will also be excluded due
to Tribal management for western yellow-billed cuckoo and existing
partnerships with the Service. We are also excluding Unit 39 from
critical habitat due to existing management. See Exclusions (Federal
Lands and Tribal lands).
Comment 24: The State of Idaho's Office of Species Conservation
(OSC) (and other private water users) commented in 2014 and again in
2020. The commenters provided modifications and corrections to the
acreages identified in the proposed rule. They stated that protections
afforded the western yellow-billed cuckoo as a threatened species and
other current on-the-ground measures render the critical habitat
designation unnecessary; areas in Idaho are not essential to the
conservation of the species; the Service's current information on the
status and occupancy of western yellow-billed cuckoo in Idaho is
severely lacking; and a recovery plan should be developed before
critical habitat is determined. They further stated that they have
concerns that the designation would change water management,
agricultural, and irrigation activities along the Snake River or its
tributaries and that the American Falls Dam and Reservoir's operations
and associated transmission lines, humanmade structures and rights-of-
way would be affected by the designation. The commenters stated that
special management is not necessary as measures are already in place
and that it is essential to preserve the 2004 Snake River Agreement.
The OSC stated that the Service should leverage existing
collaborative efforts and implement landscape-scale partnerships and
incentivize ecologically-based cooperative water management practices
to conserve riparian and western yellow-billed cuckoo habitats while
providing
[[Page 20807]]
balanced management of agricultural irrigation, managed aquifer
recharge, municipal uses, and flood control. The OSC commented that if
areas are designated, the Service should expand the boundaries of the
critical habitat to correspond to Federal lands and only include non-
Federal lands with landowner discretion.
Our Response: We have revised the final rule to reflect information
provided by the OSC regarding acreages and land ownership. We do not
agree with the commenters' assessment that areas in Idaho are not
essential to the conservation of the species and should not be
designated as critical habitat. We developed a conservation strategy to
assist in determining areas essential to the conservation of the
species and determined that the areas in Idaho are occupied, contain
the PBFs essential to the conservation of the species, meet the goals
of the conservation strategy, and follow our criteria for designation.
These areas in Idaho fall into category 3 of our conservation strategy
as they are large river systems outside of the Southwest that occur in
different ecological settings that are consistently being used as
breeding areas, thus contributing to the ecological representation and
redundancy of the species. Maintaining breeding areas throughout the
range of the species allows year-to-year movements to take advantage of
any spatial and temporal changes in habitat resources and food
abundance. We based our occupancy and use of the areas in Idaho on
State natural heritage data and published articles and survey reports
including Reynolds and Hinckley (2005, entire) and Idaho Department of
Fish and Game (2013-2014, entire), as the best available data that have
documented consistent use of the areas designated as critical habitat
in Idaho. In the proposed and this final rule we have defined our
position and consideration of occupancy (see Selection Criteria and
Methodology Used to Determine Critical Habitat).
The designation of critical habitat requires Federal agencies to
consult with the Service on activities they conduct, permit, or fund.
Because the areas being designated are occupied, the Federal agencies
managing water storage and delivery infrastructures already must ensure
that their operations do not jeopardize western yellow-billed cuckoo
due to the threatened status of the species. Our economic analysis did
not identify significant additional costs associated with the
designation of critical habitat as the measures that may be required
would likely be the same as those necessary under the jeopardy analysis
other than administrative analysis of any adverse modification review
for the agencies' actions.
Collaborative multi-stakeholder cooperative partnerships can be
important to long-term conservation of sensitive species and their
habitats while still allowing for the interests of stakeholders and
needs of the public to continue. However, we are required to designate
critical habitat for threatened and endangered species where we find
the designation to be both prudent and determinable as is the case with
the western yellow-billed cuckoo. In our development of critical
habitat, we consider designating those areas with the PBFs essential to
the conservation of the species and not based on land ownership, unless
limiting the designation to just Federal lands provides for the
conservation of the species. In our proposed rule, we solicited the
public for information regarding potential exclusion of areas based on
management plans or other conservation efforts including partnerships
and we engaged with our partners regarding excluding private lands
within the units identified in Idaho. We received a request to only
include private lands with landowner consent from OSC; however, we
received no information from private landowners to exclude their
specific lands in Idaho.
We do not agree that specific areas and essential features within
critical habitat do not require special management considerations or
protection because adequate protections are already in place. In Center
for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz.
2003), the court held that the Act does not direct us to designate
critical habitat only in those areas where ``additional'' special
management considerations or protection is needed. If any area provides
the physical or biological features essential to the conservation of
the species, even if that area is already well managed or protected,
that area still qualifies as critical habitat under the statutory
definition if special management is needed. The final rule explicitly
states that manmade features such as irrigation structures and
facilities are excluded from the designated critical habitat. However,
rights-of-way are agreements that impose a status on the use of lands
rather than describing the condition of the land as human-made
structures. As such, rights-of-way are not excluded from designated
critical habitat.
Comment 25: The New Mexico Department of Agriculture, Middle Rio
Grande Conservancy District, New Mexico Interstate Steam Commission,
and the Rio Grande Compact Commission had comments on the revised
proposed Unit 37 (NM-6A and NM-6B). They stated that in many cases the
designation would not produce any additional benefits for the western
yellow-billed cuckoo than already resulting from issuance and
implementation of the Service's 2016 biological opinion (Service 2016a,
entire) for water operations and river maintenance issued to
Reclamation. These entities have also been pursuing other conservation
actions in the proposed area through the Middle Rio Grande Endangered
Species Collaborative Program. They would like the Service to consider
the exclusion of the Elephant Butte Reservoir operating pool from
designation as critical habitat. The commenters also requested that the
draft NEPA and draft economic analysis developed for the revised
proposed designation be made available for review.
Our Response: Partly as a result of the 2014 comments, we revised
the previously identified Unit 52 (NM-8) (2014) (Unit 37 (2020)) to
remove a segment of the river near Albuquerque, NM, as not constituting
critical habitat where there is a significant break in the habitat for
the western yellow-billed cuckoo. Though this area has had incidental
detections of western yellow-billed cuckoos, breeding activity has not
been confirmed by formal surveys since the species was listed. This
area was removed from proposed critical habitat, which resulted in
splitting the critical habitat into two units (NM-6A and NM-6B). We
conducted an exclusion weighing analysis and found that the benefits of
exclusion outweigh the benefits of inclusion and excluded the majority
of Elephant Butte Reservoir as well as areas within Tribal lands from
this final designation (see Comment 8 and Exclusions, Tribal Lands and
Federal Lands). The draft economic analysis (IEc 2019 and IEc 2020
entire) and draft NEPA analysis (Service 2019d) were posted online at
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 under
supporting documents or on the Sacramento Fish and Wildlife Office's
website at http://www.fws.gov/sacramento.
Comment 26: In 2014, the New Mexico Interstate Stream Commission
and New Mexico Department of Game and Fish (NMDGF) questioned the
source of western yellow-billed cuckoo occupancy data for the Gila, San
Francisco, Mimbres and San Juan Units. The New Mexico Interstate Stream
Commission also requested additional
[[Page 20808]]
information as to how State estimates for western New Mexico were
established. On the Rio Grande, the Commission also noted discrepancies
in 1986 study results by Howe (1986), when compared to the limited
survey effort completed by Reclamation from 2006-2010, and stated that
the western yellow-billed cuckoo population is larger than estimated.
The NMDGF also recommended removing the areas along the San Juan River
(2014 Unit 46, NM-1) and Mimbres River (2014 Unit 49, NM-6) (now
identified as Unit 34, NM-3A) from the designation due to low frequency
of western yellow-billed cuckoo detections.
Our Response: Occupancy data for New Mexico was based on a variety
of sources. These include formal surveys conducted by permitted
biologists, incidental detection data collected and verified by online
data from the Cornell Lab of Ornithology (2020), and information
submitted to the Service from the State Heritage Program. State
estimates for western New Mexico are based on the observations from the
sources above. In this final critical habitat designation, we have
updated our estimated numbers for the State, which is a larger
population than originally estimated in 2014, after several years of
increased survey effort. After reevaluation and prioritizing units of
greatest conservation value, we agree that the low frequency of western
yellow-billed cuckoo observations on the San Juan River lead us not to
consider the area as critical habitat due to our conservation strategy
and criteria for determining areas essential to the conservation of the
species. The Mimbres River area was also reevaluated and had recent
formal or incidental observations of western yellow-billed cuckoos
within the area identified in 2014 as well as additional locations
outside the unit. As a result, the areas we are designating along the
Mimbres River now include the two areas identified in the revised
proposed rule (Unit 34, NM-3A and NM-3B).
Comment 27: The New Mexico Department of Agriculture (NMDA)
requested that the Service clearly define what criteria it uses to
differentiate between ``grazing'' and ``overgrazing.'' NMDA also
requests the scientific and peer-reviewed sources of data that has led
the Service to conclude that ``overgrazing'' may be a threat to
potential critical habitat.
Our Response: As stated in the 2014 final listing rule determining
threatened status for the western yellow-billed cuckoo (79 FR 59992,
October 3, 2014), well-controlled grazing activity can be compatible
within riparian zones and in western yellow-billed cuckoo habitat
depending on the measures implemented for the grazing activity. The
amount of management depends on the sensitivity of the habitat at any
given location and would most likely need to be managed on a site-by-
site basis. For example, a grazing regime used on Audubon California's
Kern River Preserve in the South Fork Kern River Valley limits grazing
to outside the growing season (October to March). This time restriction
allows for regeneration of willows and cottonwoods and precludes the
tree browsing and high-lining that often accompanies heavy summer
(growing season) grazing. Given that ``grazing'' versus ``overgrazing''
may vary on a site-by-site basis, there is no clear definition, but
generally, if an area with grazing activity degrades riparian habitat
attributes and prevents long-term health and persistence of these
systems, it is considered overgrazing.
Comment 28: In 2014, the NMDGF stated that the Service should
further describe vague habitat descriptions in the Physical and
Biological Features section and within the unit descriptions
themselves.
Our Response: In our 2020 revised proposed rule (85 FR 11458,
February 27, 2020) and this final rule, we further refined the PBFs for
western yellow-billed cuckoo and information regarding habitat within
the unit descriptions.
Comment 29: The NMDGF requested that all State lands be excluded
based on their State Wildlife Action Plan (Action Plan or SWAP) and the
NMDA supports the exclusion of all lands in New Mexico from the final
critical habitat designation. The NMDGF identified areas within the
Bernardo WMA that do not have the PBFs and should not be considered as
critical habitat. The NMDA stated that State lands are often involved
in collaborative restoration projects involving funding from Federal
agencies. Designating State lands as critical habitat could complicate
interagency cooperation and hinder the implementation of restoration
projects that would benefit the western yellow-billed cuckoo.
Our Response: We re-evaluated the critical habitat boundary in the
Bernardo WMA within Unit 37 (NM-6B) and agree with the State's
assessment that a portion of the unit at the southernmost extent of
Bernardo WMA does not contain the PBFs for the western yellow-billed
cuckoo; therefore, some areas within Bernardo WMA were removed from the
designation.
In this final rule, we excluded State lands that have management
measures in place to protect habitat for the western yellow-billed
cuckoo (see Exclusions, Private or Other Non-Federal Conservation Plans
or Agreements and Partnerships, in General). We value our partnership
with New Mexico State agencies and appreciate the conservation efforts
associated with the NMDGF State Wildlife Action Plan and coordination
with the Service on endangered and threatened wildlife conservation
measures and commitments through the consultation process. State
Wildlife Action Plans, including the NMDGF State Wildlife Action Plan
(NMDGF SWAP 2016, entire), are planning documents that provide a high
level overview of the status of species and habitats within each State
and are not a plan which specifically implements conservation measures,
provides management direction, or ensures specific project or species
funding. In some cases, these conservation efforts identified in State
Wildlife Action Plans may aid in general riparian health, which in some
cases, indirectly benefit western yellow-billed cuckoos. However, the
NMDGF and the NMDA did not provide a reasoned explanation that the
benefits of exclusion outweigh the benefits of inclusion in support of
a request for exclusion. As a result, we did not conduct an exclusion
analysis specific to New Mexico State lands. In addition, State
agencies receiving Federal funds to conduct projects would be
considered third parties in consultation and thus are represented in
the cost estimates produced by the economic analysis. The economic
analysis found that the incremental economic costs associated with
critical habitat to third parties such as States would be minimal.
Tribal Comments
In accordance with our requirements to coordinate with Tribes on a
government-to-government basis, we solicited information from and met
with members of the Fort Mojave Indian Tribe; Colorado River Indian
Reservation; Fort Yuma Indian Reservation; Cocopah Tribe; Yavapai-
Apache Nation; Hualapai Indian Tribe; San Carlos Reservation; Navajo
Nation; Santa Clara, Ohkay Owingeh and San Ildefonso Pueblos; Cochiti,
Santo Domingo, San Felipe, Sandia, Santa Ana and Isleta Pueblos;
Shoshone-Bannock, Fort Hall Reservation; the Cachil DeHe Band of Wintun
Indians; and the Ute Tribe of the Uinta and Ouray Reservations
regarding the designation of critical habitat for the western yellow-
billed cuckoo. The comments we received from the Tribes included
revisions to Tribal ownership and requests to be excluded from the
[[Page 20809]]
designation based on their management and conservation of western
yellow-billed cuckoo habitat, that the designation would infringe on
Tribal sovereignty and directly interfere with Tribal self-government,
and that it would have a disproportionate economic impact on Tribes.
We have reviewed their requests and excluded all the Tribal lands
from the final designation under section 4(b)(2) of the Act. See
Exclusions (Tribal Lands) for those areas we excluded under section
4(b)(2) of the Act from the final designation. Individual Tribal
comments requesting exclusion from the final designation under Section
4(b)(2) of the Act are addressed below in the Exclusions (Tribal Lands)
section and are not addressed further here.
Comment 30: The Gila River Indian Community (GRIC) and others
expressed concern about whether critical habitat would impact water
availability and management or prevent future water exchanges for
Tribal communities. The GRIC was specifically concerned with the Salt
River Reservoir systems identified in the Salt River Project (SRP) and
if existing agreements allow for ``storage credits'' to be managed
according to water delivery needs and existing water operations. The
GRIC also provided comments regarding the economic impact of potential
curtailment of water delivery should critical habitat be designated
outside Tribal lands.
Our Response: Because all Tribal lands have been excluded from the
final critical habitat designation, any conservation activities on
Tribal Lands that would be required are based on the listing of the
western yellow-billed cuckoo. For critical habitat off Tribal lands, we
do not anticipate water operations or water delivery to Tribes to be
significantly impacted by the designation of critical habitat. Section
3 of the economic analysis outlines the substantial baseline
protections currently afforded the western yellow-billed cuckoo
throughout the proposed designation and has determined that the impacts
of critical habitat would be minimal. In addition, of the reservoirs
within the SRP, we are excluding the areas identified near Roosevelt
Lake through SRP's Roosevelt Lake HCP (2002) and areas around and
downstream of Horseshoe Reservoir through SRP's Horseshoe and Bartlett
Reservoirs HCP (SRP 2008, entire). Horse Mesa Dam, Mormon Flat Dam, and
Stewart Mountain Dam are not within cuckoo critical habitat on the Salt
River. Other areas within the SRP were not identified as critical
habitat. Because the areas identified within the SRP area are no longer
critical habitat, we would not expect future water delivery or
exchanges to be impacted by the designation. See Exclusions, Private or
Other Non-Federal Conservation Plans Related to Permits Under Section
10 of the Act and Exclusions (Tribal Lands).
Comment 31: In 2014, the Sandia Pueblo requested the exclusion of
critical habitat within their lands based on the mandate established in
Secretarial Order 3206, their history of restoration efforts, the
Pueblo of Sandia's Bosque Management Plan, and section 4(b)(2) of the
Act.
Our Response: In 2020, we revised the critical habitat boundary of
Unit 37 (NM-6B) near Albuquerque, New Mexico, which included the Sandia
Pueblo. Because the area contained a significant break in the type of
occupied habitat due to the area being near development and not meeting
our criteria for designation, the area that contained Sandia Pueblo
lands was not included in the 2020 revised proposed designation.
Although this area has had a limited number of detections of western
yellow-billed cuckoos, breeding activity has not been confirmed by
formal surveys since the species has been listed. This assessment has
been further supported by the Sandia Pueblo's historical and multi-year
survey effort.
Comment 32: One commenter noted that the Ute Indian Tribe relies on
revenues from oil and gas development as the primary source of funding
for its governmental services. This commenter stated that, if the
listing and critical habitat designation prevent the Tribe from
developing its oil and gas resources, the Tribe could lose $2.3 million
per well annually.
Our Response: All Ute Indian Tribe lands were excluded from the
final designation. The commenter also refers to costs of listing for
the yellow-billed cuckoo. Section 4 of the Act prohibits the
consideration of economic impacts in decisions about whether to list a
species as endangered or threatened. The listing decision made in 2014,
was based solely on best scientific and commercial data available on
the status of the species, after taking into account efforts by States
or foreign nations to protect the species (section 4(b)(1) of the Act).
Thus, the economic analysis does not quantify the likely economic
effects of our previous decision to list the western yellow-billed
cuckoo as a threatened species.
For activities that have a Federal nexus on the Ute Reservation,
the consultation history for impacts to the species has been minimal.
The economic analysis estimated that the annual rate of expected
consultations for the entire Unit 70 would be less than one per year
(0.8) (IEc 2020, Exhibit A-2). As result of excluding the Tribal lands,
we would expect even fewer consultations for the area.
Public Comments
Comment 33: Several commenters stated the Service should not rely
on the PBF of having an adequate prey base to designate critical
habitat because the Service does not adequately address how management
practices might affect the prey base.
Our Response: In determining critical habitat, we are required to
identify the physical or biological features essential to conservation
of the species. Prey availability is an important component western
yellow-billed cuckoos use to select areas for breeding. However, we did
not identify and select areas as critical habitat based on this feature
alone; in selecting areas as critical habitat we relied on our
conservation strategy which focused on breeding areas with appropriate
habitat structure. This PBF is designed to ensure that project
proponents consider effects to the prey base in any considerations of
how their actions might affect the function of the critical habitat in
supporting western yellow-billed cuckoos. As such, we conclude that it
is informative and appropriate to include as a PBF in the final
designation.
Comment 34: Multiple commenters expressed concern for designating
critical habitat in areas where the species has not been recently
documented and which we could not be certain were occupied.
Our Response: We based our designation on the best scientific and
commercial information available using specific criteria for
determining areas to designate as critical habitat. We have determined
that all units being designated are occupied by the western yellow-
billed cuckoo. In determining occupancy of breeding areas and critical
habitat for the western yellow-billed cuckoo, we obtained occurrence
information from surveys, reports, State Heritage data, published
literature and online information (Cornell Lab of Ornithology). For the
2014 proposed rule, we reviewed information between 1998 and 2014 to
determine whether the area was occupied at the time of listing. For the
2020 revised proposed rule, based on new data we received through 2017,
we proposed additional units we consider to have been occupied at the
time of listing using new data received through the 2017 breeding
season. To further support designation of these
[[Page 20810]]
units, we used additional occupancy or breeding data up until the 2020
breeding season. See Criteria Used To Identify Critical Habitat for a
discussion of the information and criteria we used on determining
occupancy.
Comment 35: Multiple commenters requested exclusions for various
publicly managed lands. One of these requests was to exclude Black
Draw, part of San Bernardino National Wildlife Refuge in Arizona.
Private landowners also requested exclusion for their own lands,
claiming that they are already managing lands that maintain the
species' habitat but did not provide information regarding their
management or specific land ownership information.
Our Response: For exclusion of an area from critical habitat
designation based on management, we look to our Policy on Exclusions
that outlines measures we consider when excluding and areas from
critical habitat (81 FR 7226). Black Draw, a part of the San Bernardino
National Wildlife Refuge, provides important habitat for the western
yellow-billed cuckoo. In order for us to consider and conduct an
exclusion analysis, stakeholders should provide information or a
reasoned rationale to support their request. Without this information,
we did not conduct a weighing analysis to determine whether the
benefits of exclusion outweigh the benefits of inclusion. For those
Federal, State, Tribal and public lands where we had such information,
we conducted an exclusion analysis Please see the Exclusions section
for areas we are excluding from the final designation.
Comment 36: Some commenters stated that areas identified as
critical habitat did not contain the physical or biological features
(PBFs) and therefore are not essential and should not be part of the
final designation.
Our Response: In our revised proposed rule, we reevaluated the
areas proposed as critical habitat to focus on areas that contain the
PBFs and are consistently occupied during the breeding season. We used
the best scientific or commercial information available to determine
habitat for and use by the western yellow-billed cuckoo. During our
process of analyzing the PBFs, care was taken to consider the areas
chosen using as consistent an approach as possible, despite the
differences in habitat and the timing of when areas are used by the
species. In some instances, several areas of habitat if in near
proximity to each other were grouped together as a single area. Within
the boundaries of critical habitat, areas that do not contain the PBFs
are not considered critical habitat, even if they are within the
boundary.
Comment 37: One commenter stated that the LCR MSCP maps in the
revised proposed rule do not include some important revegetation sites
occupied by western yellow-billed cuckoos. The commenter provided the
total additional area of the revegetation sites within the LCR MSCP
planning area.
Our Response: The proposed rule and revised proposed rule were
based on the most current information we had on boundaries of areas for
the LCR MSCP and may not have included more recent revegetation sites.
As a result of reviewing whether we should exclude the areas being
managed under the LCR MSCP, we took into consideration the additional
restored sites as part of our benefits of exclusion analysis. We have
determined to exclude the entire area being managed under the LCR MSCP.
See Exclusions, Private or Other Non-Federal Conservation Plans Related
to Permits Under Section 10 of the Act.
Comment 38: One commenter claims the inclusion of critical habitat
for the western yellow-billed cuckoo in Unit 19 (AZ-17, Upper Cienega
Creek), Unit 24 (AZ-22, Lower Cienega Creek), or Unit 58 (AZ-46,
Gardner Canyon) will result in an economic burden for their activities.
They also reasons the Service has already analyzed the effects of the
Rosemont Project on the western yellow-billed cuckoo habitat in the
project area during a section 7 consultation completed in 2016, and
that because the habitat is already protected under the jeopardy
standard, the area should not be included. The commenter also stated
that the critical habitat within and in the vicinity of the Rosemont
Project cannot be essential to the conservation of the species. Other
commenters expressed concern about the development of Rosemont Copper
Mine and that the critical habitat in the area is important for western
yellow-billed cuckoos and other species.
Our Response: As we discussed in our draft economic information in
our revised proposed rule (IEc 2019, entire; IEc 2020, entire) and our
Incremental Effects Memo (Service 2019c, entire), we do not expect
significant economic impacts associated with the designation of
critical habitat above those associated with listing of the species as
threatened, due to the areas being occupied by the species. Our review
of the comments and claims raised do not change our position that the
incremental economic impacts associated with critical habitat would be
limited to administrative costs associated with completing adverse
modification analyses for Federal actions (activities, permitting,
funding) occurring in critical habitat. In general, conservation
measures resulting from the species' listing status under the Act are
expected to sufficiently avoid potential destruction or adverse
modification of critical habitat.
In 2016, we issued a biological opinion to the USFS for Rosemont
Copper's proposed activities (Service 2016b, entire). We subsequently
received notification from the USFS that they had suspended all
activities under the Rosemont Project Mine Plan of Operations due to
litigation and court ruling to halt the project (Dewberry 2019, entire;
Helminger 2019). In 2019, we suspended our 2016 biological opinion and
its accompanying incidental take statement (Service 2019b, entire). On
February 10, 2020, we received an adverse ruling on our biological
opinion (Case 4:17-cv-00475-JAS Document 291). The USFS and Corps did
not request an appeal of this decision. As a result of these court
rulings, Rosemont's claim (James 2020, entire) that impacts to critical
habitat have already been analyzed under the jeopardy standard is not
correct. In addition, review of critical habitat is not reviewed under
the jeopardy standard but rather under the different adverse
modification standard. Should Rosemont Copper wish to resume seeking
Federal permits for their activities, the Federal agencies would need
to consult with the Service and obtain a new biological opinion for
incidental take and adverse modification review.
In reviewing areas to designate critical habitat, we used the best
scientific and commercial information available to determine those
areas that are occupied and contain the physical or biological features
essential to the conservation of the species. Western yellow-billed
cuckoo use of the area during the breeding season is well documented
and the area meets our criteria and conservation strategy for
designation.
Comment 39: Permittees and others associated with the Service-
approved section 10 Pima County Multi-Species Conservation Plan (MSCP),
requested that the critical habitat within the HCPs planning area be
designated as critical habitat.
The commenters expressed their confidence in the ability to deliver
conservation benefit to the western yellow-billed cuckoo by way of the
mitigation, management, and monitoring strategies in the MSCP. However,
the commenters did state that large-scale Federal actions outside of
Pima County's control could have significant negative impacts on
species and lands under their management. The
[[Page 20811]]
commenters continued, stating that the designation of critical habitat
would require Federal agencies to use an additional standard of review
when conducting section 7 consultations with the Service for federally
permitted activities (such as mines and transmission lines) not
controlled by Pima County. The commenters stated that keeping the area
as critical habitat would further serve to benefit the conservation of
species and its habitat (Huckelberry 2014, entire). The commenters
opined that maintaining the western yellow-billed cuckoo critical
habitat on Pima County or Pima County Regional Flood Control District
managed lands would not impact their section 10(a)(1)(B) permit or
their partners. The commenters therefore requested that critical
habitat for the western yellow-billed cuckoo be maintained on County-
and District-owned and leased properties and on the Federal lands
within Las Cienegas National Conservation Area.
Our Response: In proposing revised critical habitat in 2020 for the
western yellow-billed cuckoo, we identified approximately 9,191 ac
(3,719 ha) of land within the Pima County MSCP that occurred in
numerous proposed units. We are honoring the commenters' requests not
to exclude these areas from the final designation.
Comment 40: We received many comments on Unit 16 (AZ-14, Upper San
Pedro River), which includes a portion of the San Pedro Riparian
National Conservation Area (SPRNCA) managed by the Bureau of Land
Management (BLM), ranging from support for inclusion, exclusion,
exemption, or removal. One commenter provided support of inclusion in
part because it has western yellow-billed cuckoo conservation goals
within this unit as part of its Sonoran Desert Multi-species
Conservation Plan (Huckelberry 2014, entire). Private individuals and
environmental organizations also supported inclusion. Multiple
commenters requested exclusion or removal of part or all of this Unit
for various reasons, such as the area already having Federal
protection, that it was not essential, and not wanting critical habitat
on or near their private lands.
Our Response: As noted above, consideration of possible exclusions
from critical habitat are in the Service's discretion and generally
follow our Policy on Exclusions (81 FR 7226). With respect to Unit 16,
we determine that the requesters have not presented information or
reasoned rationale that supports a conclusion that the benefits of
exclusion outweigh the benefits of inclusion. Breeding western yellow-
billed cuckoos have long occupied the area within Unit 16. This area
supports the largest population of breeding western yellow-billed
cuckoos along and adjacent to a free-flowing river in Arizona and has a
high conservation value. Areas such as this were specifically
identified as part of our conservation strategy for designating
critical habitat. Western yellow-billed cuckoos have been documented as
breeding along the cottonwood-willow riparian woodland corridor and in
the adjacent mesquite and desert scrub woodland that expands laterally
into the broad floodplain. Threats to the physical or biological
features in this Unit are ongoing and require constant management to
protect from actions that affect the species and its habitat. The
Service has engaged in many consultations for proposed actions within
and outside of San Pedro Riparian National Conservation Area (SPRNCA)
in the San Pedro River Basin that affect cuckoos and habitat within
SPRNCA. Designation of critical habitat in this Unit ensures that
effects of proposed Federal actions to western yellow-billed cuckoo
habitat are considered and fully evaluated for potential impacts. The
designation of critical habitat may also help increase agency and
private land stewardship through partnerships and curtail unauthorized
activities that degrade habitat such as trespass grazing and off-
highway vehicle incursions. See Exclusions Based on Impacts on National
Security and Homeland Security for discussion of Fort Huachuca.
Comment 41: Multiple commenters stated that the geography of the
species does not warrant labeling the western yellow-billed cuckoo as a
distinct population segment, therefore delisting is warranted, and it
is not necessary to designate critical habitat.
Our Response: On September 16, 2020, we published in the Federal
Register a not warranted 12-month finding on the petition to delist the
western yellow-billed cuckoo (85 FR 57816). In that finding, we
reaffirmed our previous determination that the western yellow-billed
cuckoo constitutes a valid distinct population segment. Thus, we are
required to designate critical habitat for all threatened or endangered
species as long as we find the designation to be prudent and
determinable, as is the case for the western yellow-billed cuckoo. We
further note that we are under court order to finalize critical habitat
for the western yellow-billed cuckoo critical habitat and do not have
the discretion not to do so.
Comment 42: Several commenters stated that the western yellow-
billed cuckoo is a habitat generalist or the designation of desert
scrub, grasslands, mesquite, mesquite bosques, and cottonwood galleries
as ``critical'' is wrong.
Our Response: The western yellow-billed cuckoo uses a variety of
riparian and xeroriparian habitat within its range, but they are not
habitat generalists. All the vegetation types are habitats with an
overstory and understory component that occur in drainages. Based on
comments regarding the PBFs in the 2014 proposed rule, we sought to
better define the habitat used by the species. Western yellow-billed
cuckoo breeding habitat is restricted to riparian woodlands along
riparian drainages rangewide and, in the southwestern United States and
northwestern Mexico, they also breed in more arid and sometimes
narrower or patchier tree-lined drainages. In southeastern Arizona,
they breed in tree-lined habitat in ephemeral drainages where humidity
is higher than in other parts of the Southwest.
Comment 43: A few commenters stated that the proposed rule does not
provide a solid justification for why areas proposed for critical
habitat are essential. One commenter also stated there was insufficient
justification for why areas were removed from the 2014 proposed
critical habitat and why areas previously considered essential were
eliminated.
Our Response: Revisions from the 2014 proposal are in part based on
comments received and development of our conservation strategy for
determining critical habitat. In our revised proposed and this final
rule, we describe our rationale on why we consider the areas identified
as essential to the conservation of the species. The conservation
strategy takes into consideration numerous conservation biology
practices and approaches for conserving sensitive species and their
habitat. The areas identified contain the PBFs we considered essential
to the conservation of the species under section 3(5)(A)(i) of the Act.
In the strategy, we focused our designation on breeding areas that
showed consistent occupancy and have records of numerous breeding pairs
over time. Areas with limited, low, and inconsistent breeding
information or degraded habitat were removed as not meeting the
definition of critical habitat. For example, some areas on the Verde,
Salt, and Gila Rivers that are no longer considered as critical habitat
contained some or all of the PBFs, but the habitat is degraded,
declining, and disjunct.
[[Page 20812]]
There were also no recent records (within the last 5 years) that
confirm occupancy throughout the breeding season, although yellow-
billed cuckoos migrate through these areas. Some other drainages in
Arizona and throughout the range were removed either because: (1) The
PBFs no longer occur, (2) our information regarding PBFs was in error,
(3) surveys conducted since 2014 have not confirmed occupancy during
the breeding season, (4) surveys have not been conducted, or (5) the
area had detections but occupancy was otherwise uncertain; these areas
were removed from the designation as not meeting the definition of
critical habitat.
Comment 44: One commenter stated that the Service failed to inform
private landowners that their property is proposed for designation.
Our Response: We made every effort to provide the public
notification of our proposed and revised proposed critical habitat,
including through direct notification, publications in newspapers, and
social media outlets. Due to the large scope of the proposed
designation, it was not possible to individually contact each
individual landowner within the proposed designation.
Comment 45: Several commenters stated that there is no evidence
that critical habitat units were occupied at the time of listing.
Commenters disagreed that using data collected over a 20-year span is
proof that the area is occupied habitat at the time of listing in 2014.
Commenters also disputed that documentation of a few individuals is
proof that the species is breeding or that the habitat they occupy is
essential. Other commenters held the opposite point of view and found
our parameters for occupancy to be too narrow, and recommended that the
consideration of occupancy should be expanded temporally and spatially.
Our Response: In development of the proposed rules and this final
rule designating critical habitat, we used the best scientific and
commercial information available. We have determined based on our
analysis of the information available that western yellow-billed cuckoo
surveys and occupancy reports conducted in many sites over multiple
years indicate continued use. Therefore, it is reasonable to conclude
that data collected from 1998 to the present can be used to determine
occupancy. We acknowledge the difficulty in identifying every
individual occupying or breeding occurrence for an area because of the
remote nature of the sites, reclusive nature of the species, the
variable nature of resource availability, the extent of the species
range, and limited personnel and funding to conduct rangewide protocol
surveys. In certain instances we used the best scientific and
commercial information to inform our decisions and professional
judgment on determining occupancy for an area or including or not
including it as critical habitat. In our proposed rule and this final
rule, we outline our rationale for determining occupancy and
identifying areas as critical habitat. See Selection Criteria and
Methodology Used to Determine Critical Habitat.
Comment 46: Several commenters were concerned about water depletion
(both surface water and groundwater) and its continued threat to
western yellow-billed cuckoos into the future. Some were interested in
creating more water availability and flow through a balanced approach
to water use interests (including municipal, agricultural,
recreational, and environmental interests) and implementing more
habitat restoration in areas proposed for critical habitat.
Our Response: Water availability and depletion can have a
significant impact to western yellow-billed cuckoo and its habitat and
were part of our reasoning for listing the DPS as threatened. We expect
water depletion to continue due to a variety of causes including
actions such as climate change, drought, mining effects, groundwater
pumping, and water diversion. We will continue to consult on this issue
as it arises as well as work with Federal, State, Tribal, and private
landowners on species recovery actions.
Comment 47: Several commenters pointed out potential
inconsistencies in application of criteria for designation, in
particular where large habitat blocks are absent or where there are
gaps greater than 0.25 mi (0.40 km). One commenter is concerned about
the gaps in suitable habitat and inclusion of small patches along the
Big Sandy River. Another commenter stated that there is no evidence
that Pinto Creek contains substantial blocks of riparian habitat.
Our Response: Because of the dynamic aspects of western yellow-
billed cuckoo habitat as a result of potential flooding, changing river
locations, and land uses, we used the active floodplain to identify
where riparian habitat occurs and immediately adjacent suitable
woodland habitat to determine the critical habitat boundaries. Blocks
of habitat often contain openings that change over time in dynamic
riverine systems. Suitable habitat in perennial and intermittent
riparian systems consists of a variety of configurations that include
small patches of woodland interspersed with openings, large expanses of
woodland, narrow woodland, or a combination of different configurations
within the same drainage at any given time. Riparian corridors in
drainages, especially in the Southwest, can be very narrow or a
patchwork of vegetated and nonvegetated areas. Naturally occurring gaps
in habitat following flooding and scouring are part of succession in
riparian systems. In time, trees will regenerate and fill these
openings. Western yellow-billed cuckoos often nest and forage near the
edges and openings that are part of the matrix of suitable habitat. We
included breaks in habitat to combine one or more areas if we
determined that: (1) The gap in vegetation was within minor variances
of the 0.25-mi (0.40-km) distance; (2) the habitat on the other side of
the gap was a continuation of similar or better suitable habitat and
included breeding occupancy as identified above; or (3) the gap in
vegetation was determined to be a consequence of natural stream
dynamics essential to the continuing function of the hydrologic
processes of the occupied areas. By providing breaks in habitat and
combining areas, we allow for regeneration of vegetation in these
areas, which is often more productive and provides additional food
resources for the species and allows for appropriate habitat conditions
for use when dispersing to other breeding locations.
Comment 48: Several commenters claimed a need for western yellow-
billed cuckoo critical habitat to be protected from livestock grazing.
Our Response: We consider livestock grazing, if conducted and
managed appropriately, to be a management tool compatible with western
yellow-billed cuckoo and its habitat depending on the location and
intensity of the grazing operation. We evaluate effects of grazing on
western yellow-billed cuckoos and habitat through section 7
consultation for any proposed project with a Federal nexus. Livestock
grazing in riparian areas can be a concern, and the Southwestern Willow
Flycatcher Recovery Plan (Service 2002, entire) provides grazing
guidance that is also relevant for western yellow-billed cuckoos. We
identified overgrazing in riparian (including xeroriparian) habitat as
an ongoing threat to western yellow-billed cuckoo habitat that may
require special management. Well-managed, low-intensity, appropriately
timed grazing in areas with multiple options for water access to
livestock can be compatible with western yellow-billed cuckoos in some
parts of the range. However, where water is limited and recruitment
events are infrequent,
[[Page 20813]]
grazing at any level can impact riparian habitat.
Comment 49: Several commenters indicated that the 2020 revised
proposed critical habitat rule conflicts with the description of
western yellow-billed cuckoo habitat in the 2014 listing rule and 2014
proposed critical habitat rule.
Our Response: Since the publication of the 2014 proposed critical
habitat rule, we have learned more about western yellow-billed cuckoos
and their habitat use through information identified in published
research, survey efforts, and field studies. This new understanding is
included as the best available science at the time of publishing the
2020 revised proposed rule. New information includes the species' use
of ephemeral drainages with relatively high humidity for breeding, in
addition to the known use of riparian woodlands.
Comment 50: Several commenters are concerned about the expansion of
identified critical habitat in certain areas of Arizona, such as in the
upper reaches of the Big Sandy River and that the additional areas
(used as stop-over, dispersal, or breeding habitat) are not needed for
critical habitat. They also state that the rule fails to show how many
of these areas will require special management. Other commenters
expressed concerns that the apparent expansion in Arizona is only due
to increased survey effort and that Arizona is disproportionately
represented in the 2020 revised proposed critical habitat.
Our Response: The reduction in riparian habitat (including mesquite
bosques) in Arizona has been well documented and western yellow-billed
cuckoos are no longer found in areas where riparian habitat no longer
exists. Yet, remaining habitat within Arizona remains an important
stronghold for breeding western yellow-billed cuckoos. As part of the
core of the DPS, habitat in Arizona needs to be conserved to enable
western yellow-billed cuckoos to produce young that may eventually
disperse to other parts of the DPS's range. The Big Sandy River was
included because it contains breeding habitat as outlined in our
conservation strategy. Although critical habitat areas may be used as
migration corridors, dispersal habitat and stop-over sites, that is not
why these areas were designated. These areas were identified as
critical habitat as they are breeding areas that are used consistently
by the western yellow-billed cuckoo and provide for population
maintenance and growth as outlined in our conservation strategy. As
mentioned in the rule, riparian habitat (including xeroriparian) is
used by the western yellow-billed cuckoo; however, not all riparian
habitat has been designated. An increase in a species' detection
information often occurs as a result of a species being listed as a
threatened or endangered species, due to consultation requirements
under section 7 as well as recovery actions or State coordination
efforts under section 6 of the Act. Additional occupancy information is
also sometimes obtained as a result of academic research on a species.
Since 2014, we estimate that the number of detections has not increased
significantly and this information has not lead to widespread areas
being found to be occupied outside those areas known since before
listing, which identified the majority of occupancy and population
numbers occurring in Arizona and New Mexico. The only areas considered
to be ``new'' but most likely occupied at the time of listing are those
occurring in the ephemeral habitats in southeastern Arizona associated
with monsoonal events.
Comment 51: Several commenters expressed concern about designating
critical habitat in areas that contain the nonnative tamarisk and were
concerned whether it provided usable habitat and whether critical
habitat locations with tamarisk would interfere, delay, or discourage
removing tamarisk for long-term restoration efforts. One commenter
stated that the nonnative tamarisk plant should not be identified as a
physical or biological feature and listed as a riparian plant species
used by the western yellow-billed cuckoo, as it will impede removal of
the nonnative plant species and delay or discourage future habitat
restoration efforts.
Our Response: As stated in our revised proposed rule (see
Tamarisk), the nonnative tamarisk is often characterized as being poor
habitat for wildlife. However, it can be a valuable habitat substitute
where the hydrology of a stream or river has been altered to the extent
that native woodland or riparian habitat can no longer exist. Western
yellow-billed cuckoo use areas containing tamarisk for breeding and
foraging, especially when mixed with some native vegetation. In Arizona
and New Mexico, it can provide cover, temperature amelioration, food,
and nesting habitat. Actions such as clearing vegetation, modifying
physical site conditions, altering natural river processes, and
disrupting biotic interactions have facilitated tamarisk dispersal to
new locales, and created opportunities for its establishment. Because
tamarisk is so widespread in existing western yellow-billed cuckoo
habitat and used for breeding and foraging, it constitutes habitat for
the species, and any Federal actions taken within these areas would
most likely be subject to consultation under section 7 due to
occupation by the listed species regardless of the area being
designated as critical habitat. The value of tamarisk for the western
yellow-billed cuckoo depends on geographic and site-specific
conditions. Tamarisk can contribute to suitable western yellow-billed
cuckoo habitat where mixed with native habitat or adjacent to native
habitat, especially in Arizona and New Mexico. Tamarisk is the result
of altered hydrology, and removal alone will not create a rebound in
native, riparian habitat. However, tamarisk removal combined with
native tree replacement may benefit western yellow-billed cuckoos where
sufficient water is available and long-term management and funding
ensures tree survival. Because all the areas we identified as critical
habitat are occupied, the section 7 consultation requirements for
protecting the listed species would still apply.
Comment 52: A couple of commenters raised issues pertaining to
wildfire. One expressed concerns about how critical habitat could lead
to causing an overgrowth of vegetation and potentially leave areas more
vulnerable to catastrophic wildfires, while the other acknowledged the
need for critical habitat to balance the increased risk of wildfire due
to climate change.
Our Response: We acknowledge that wildfire risk exists within all
habitat to varying degrees across the range of the DPS. The designation
of critical habitat does not mean that management for reduction of
wildfire cannot occur. In fact, the identification of critical habitat
as an educational tool may focus such wildfire management actions to
help conserve the habitat. We will continue to work with Federal,
State, and Tribal governments and private landowners within the
designation to implement appropriate wildfire management actions within
and outside any critical habitat designation.
Comment 53: Several commenters stated that the description of the
revised proposed critical habitat conflicts with the breeding and
foraging habitat description in the 2014 proposed critical habitat and
final listing rule.
Our Response: We have learned more about western yellow-billed
cuckoo foraging and breeding habitat since publication of the 2014
proposed critical habitat and final rule for listing. The revised
proposed rule and this final rule include revised information on
habitat features, foraging behavior, and breeding areas.
[[Page 20814]]
Comment 54: Numerous commenters stated they have concerns with
western yellow-billed survey information (such as interpretation,
biases, and inconsistencies), a lack of comprehensive statewide
surveys, and the likely existence of unsurveyed areas where western
yellow-billed cuckoo could be found.
Our Response: We recognize the lack of recent statewide survey
information and that not all areas within the range of the DPS have
been adequately surveyed. However, in development of critical habitat,
we are required to use the best scientific and commercial information
available to identify those areas essential to the conservation of the
species. We used a combination of data collected using the standardized
survey protocol (Halterman et al. 2016, entire), data from species
specific studies, and other credible detection data. Although we cannot
always guarantee complete accuracy in the survey information provided
to us, as of the 2014 listing, the persons conducting protocol surveys
are required to complete Service-approved western yellow-billed cuckoo
survey training prior to receiving a permit under section 10 of the
Act.
Comment 55: Several commenters expressed that with the new
ephemeral Southwest breeding habitat incorporated into critical
habitat, there are areas available for western yellow-billed cuckoos
that are not subject to threats, and that suitable habitat is now
broader and more common, questioning the need for critical habitat.
Our Response: Our characterization of Southwestern breeding habitat
is to better define the physical or biological features of habitat
throughout the range of the species. Historical descriptions of habitat
were largely based on research in the Sacramento Valley, CA, or other
areas known to have occupied habitat in large expanses of floodplain
areas, which is often different ecologically than habitat in the
Southwest as far as vegetation and environmental conditions. These
changes were reflected in our description of the PBFs for the species.
The changes to the description of habitat, by including a separate
description for Southwest breeding habitat, does not mean that
additional areas are now available and being used by the species.
Southwest breeding habitat is threatened by many of the same activities
as the rest of the DPS that has led to the loss of western yellow-
billed cuckoos and their habitat.
Comment 56: One commenter claimed that habitat areas within
existing power line corridors and rights-of-way that are required to be
maintained under existing Federal energy laws and regulations are not
essential to the conservation of the species because they currently do
not, and in the future cannot, contain the primary constituent elements
of essential features; these corridors should be identified and removed
from the final critical habitat designation.
Our Response: When determining proposed critical habitat
boundaries, we made efforts to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack the PBFs. These types of developments are not typically
found adjacent to riparian habitat and, when they do occur, may be
missing from or inaccurately represented in existing map sources. As a
result, because of the large scope of this designation and the
limitations of maps, any such developed lands, such as cement pads that
support transmission or power poles or roads left inside critical
habitat boundaries, are not considered critical habitat because they
lack the necessary physical or biological features. Therefore, a
Federal action involving these developed lands would not trigger
section 7 consultation with respect to critical habitat or the
prohibition of adverse modification, unless the specific action would
affect the physical or biological features in adjacent critical
habitat. However, Federal actions that may affect the species do
require section 7 consultation. If lands surrounding existing
powerlines, towers, or rights-of-way are occupied by western yellow-
billed cuckoos, Federal activities such as maintenance that may affect
the species during the breeding season require section 7 consultation.
Comment 57: One entity claimed that any restriction on mining to
maintain critical habitat would have a dramatic impact on mining
operations and that any such restrictions are attributable solely to
the designation of critical habitat.
Our Response: The areas currently of interest to mining activities
located in or near critical habitat boundaries are occupied by the
western yellow-billed cuckoo and would be subject to either section 7
or section 10 consultation requirements of the Act due to the species
being listed as threatened. As described in our economic analysis (IEc
2019, entire), the majority of regulatory requirements as a result of
any critical habitat designation would be administrative in nature and
be conducted by the Federal agency that may have approved, permitted,
or provided funding for the mining activities.
Comment 58: Many commenters claimed that particular areas should
not be designated because they believe that critical habitat will
unnecessarily regulate the public, will overload Federal agencies with
implementation of the designation, or is not necessary because the
areas are already federally owned and therefore protected.
Specifically, many landowners with water diversions, cattle ranches,
and agricultural property, plus residents in areas dependent on
recreation to support local economies throughout the western yellow-
billed cuckoo's range, commented that this designation would cause them
harm economically, could limit the ability of farmers and ranchers to
till productive farmland, could limit use of fertile grazing land,
could restrict the utilization of critical water rights, and could
delay projects through the regulatory process.
Our Response: We are required to designate critical habitat for
listed species if we find that the designation is prudent and
determinable as we did for the western yellow-billed cuckoo. The
designation of critical habitat applies to actions that are taken,
permitted, or funded by Federal agencies. In our economic analysis, we
did not find that the designation would cause a significant change in
activities or delay or add additional regulatory processes, as the
majority of regulation is already in place because the western yellow-
billed cuckoo is listed as a threatened species. Agricultural and
grazing activities and water operations were not identified as facing
significant changes to costs due to the designation.
Comment 59: One commenter claims that the Service reversed course
from the proposed rule and now contends that western yellow-billed
cuckoo uses nonriparian habitats that occur along dry drainages and
adjacent uplands. The commenter questioned the new category of
southwestern breeding habitat and stated that, to their knowledge, this
use of habitat and habitat description have not been previously
recognized or described by ecologists.
Our Response: Southwestern breeding habitat is similar to breeding
habitat in Mexico. We identified southwestern breeding habitat to
better identify and describe the physical or biological features
essential to the conservation of the species and assist us in
conducting section 7 consultations for areas within critical habitat.
As described in the Critical Habitat section, features such as
understory and overstory components with high humidity are considered
important for habitat selection for breeding western yellow-billed
cuckoos. This is especially true in ephemeral
[[Page 20815]]
tree-lined xeroriparian drainages. Western yellow-billed cuckoos have
only recently been discovered using this habitat and studies are
underway in southeastern Arizona to determine where western yellow-
billed cuckoos are and are not occupying habitat during the breeding
season. Surveys to date have not found western yellow-billed cuckoos in
ephemeral tree-lined xeroriparian drainages where high humidity is
lacking.
Comment 60: One commenter asserts that the addition of southwestern
breeding habitat significantly increases the number of critical habitat
units and total area of critical habitat in Arizona. Many of the
Arizona critical habitat units are based on a handful of detections
over the past two decades, raising questions about whether the habitat
can be considered occupied and whether the areas are essential to the
conservation of the species. The commenter states as a result the
Service failed to conduct a thorough, systematic review of the data and
species' needs in the development of the revised proposed rule.
Our Response: We followed specific occupancy criteria to determine
areas of critical habitat and developed a conservation strategy for the
designation (see Criteria Used To Identify Critical Habitat,
Conservation Strategy). Western yellow-billed cuckoos are found in low
densities and some units have more occupancy data than others depending
on survey efforts. Because western yellow-billed cuckoos are selective
in using breeding habitat, have large home ranges, are difficult to
detect, and occur in low densities, and surveys have occurred only in
limited reaches of available habitat, we expect territory numbers per
length of drainage surveyed to be small (one to four individuals or
pairs is not uncommon). If the species is found repeatedly in one part
of the drainage, and similar habitat occurs upstream and downstream, we
assume other individuals may be present. Because most surveys are
conducted by one or two surveyors per drainage, only a small length of
drainage can be surveyed in any given year, yielding a small number of
western yellow-billed cuckoos in a given reach. This contrasts to a
focused wide-ranging survey such as on the Rio Grande with many
surveyors that find many records along a longer reach.
Comment 61: One commenter stated that many riparian woodlands in
areas outside Arizona and New Mexico are known to support western
yellow-billed cuckoo and were proposed as critical habitat in 2014.
They were concerned that these areas have been dropped from the 2020
revised proposed critical habitat. The commenter suggests that the
Service did not provide any rationale for these changes, which appear
to contradict efforts for species conservation. The revised proposed
rule effectively makes Arizona the central focus for western yellow-
billed cuckoo conservation. This counters previous information that the
western yellow-billed cuckoo is considered a riparian obligate species
and such riparian habitat and perennial streams are limited in Arizona.
Our Response: As described in the revised proposed rule, we
developed a conservation strategy to identify areas for critical
habitat. Some areas in the 2014 proposed rule were small, isolated, and
contained single or very few records of occupancy for the breeding
season. As a result of our conservation strategy, we focused the
designation on areas where we could confirm large numbers of breeding
pairs and consistent breeding activity. For the western yellow-billed
cuckoo, this means identifying areas in Arizona and New Mexico. Arrival
of the western yellow-billed cuckoo in the western United States occurs
from Mexico north through Arizona and New Mexico (Cornell Lab of
Ornithology 2020). In addition, new information indicates western
yellow-billed cuckoos are breeding in a greater variety of riparian
habitat in the Southwest, and as such, this knowledge was used to
ensure we protect the breadth of this breeding habitat. Arizona has
more currently occupied drainages and breeding locations than other
western states and although many surveys have been conducted, only a
small proportion of drainages have been surveyed. Therefore, ensuring
habitat remains for the species in the core of the population is
important for dispersal to other geographic areas with fewer western
yellow-billed cuckoos. The core area for this species in the United
States is primarily in Arizona and New Mexico in large river systems
with riparian habitat, and in xeroriparian habitat influenced by
monsoonal conditions. We considered and included new information
acquired since listing. We did not include all occupied riparian
habitat, but based decisions on representative habitat types and their
distribution. In western states outside of Arizona and New Mexico,
large river systems used for breeding by western yellow-billed cuckoos
provide for additional redundancy and representation.
Comment 62: One commenter stated that the Service's rationale for
listing the western yellow-billed cuckoo in 2014 was largely based upon
the loss of riparian woodland habitats. The addition of southwestern
breeding habitat is not only counter to the Service's well-documented
historical ``understanding'' of species ecology but also conflicts with
the Service's basis for listing the species. This undermines the
legitimacy of the species listing, and as a result, the Service is
obliged to conduct a thorough review of the species status.
Our Response: Loss of habitat and breeding location activity for
the western yellow-billed cuckoo is well documented. The DPS continues
to see population number declines throughout the Western United States
with the only remaining strongholds for the species being in Arizona
and New Mexico. Our description of habitat and the additional use of
habitat in ephemeral drainages does not change our understanding of the
status of the species. We completed a status review and determined that
the western yellow-billed cuckoo continues to warrant listing as a
threatened species (85 FR 57816). Therefore, we continue to be driven
by a court-ordered deadline to complete a final designation.
Comment 63: One commenter claims that the revised proposed rule
presents contradictory information and suggests that the Service has
yet to develop a coherent understanding of this species. The commenter
suggests that there are clear gaps in the Service's understanding and
explanation of the species' prevalence and its habitat needs. These
gaps should be resolved before the Service proceeds with the critical
habitat designation. The commenter's preference is for the Service to
reevaluate this listing and proposed designation.
Our Response: The information in this final designation is not
contradictory. Our rationale for identifying and determining areas as
critical habitat, our description of the PBFs essential to the
conservation of the species, and our conservation strategy for
determining critical habitat are consistent with each other and provide
a strong basis for the determination. There are information gaps
regarding western yellow-billed cuckoo occupancy and habitat use, and
our understanding is continually evolving as we accumulate more
information. We have designated critical habitat in accordance with the
best scientific and commercial information available, as required by
the Act.
Comment 64: Two local government entities in California claim that
the designation would have a large impact on agricultural practices and
the local economy. One of the two commenters also stated that access to
lands would be
[[Page 20816]]
restricted, grazing limits imposed, and trout stocking, logging,
mining, and recreation would be impacted. The other commenter stated
they have drafted the Butte Regional Conservation Plan to conserve
western yellow-billed cuckoo and its habitat. Both commenters requested
exclusion.
Our Response: For both the 2014 proposed critical habitat and the
2020 revised proposed critical habitat, we completed economic analyses
to examine the incremental costs associated with the designation of
critical habitat. The economic analyses did not identify significant
impacts, and the two local government entities did not provide economic
information regarding any of the activities identified. Nor did they
provide information or a reasoned rationale supporting their requests
for exclusion which is necessary for the Service to engage in an
exclusion analysis. Critical habitat does not restrict private
landowner access to their property and would need to be considered only
if Federal agency funding, or permitting for an activity is needed.
Because the areas are considered occupied, the majority of costs are
not associated with the designation, but with listing of the species as
threatened. In our mapping of critical habitat, we avoided areas
associated with agriculture and focused on areas that contained the
physical or biological features for the species. In some cases, due to
the habitat being fragmented from development or agricultural
conversion, we drew the boundary to encompass the various habitat
patches. In such instances, some small areas not containing the
physical or biological features are within the boundary of the
designation. Any such areas would not be considered critical habitat
because they do not contain the physical or biological features. The
Butte Regional Conservation Plan is still in draft form and has not
been approved by the Service or the State under its Natural Community
Conservation Planning (NCCP) program.
Comment 65: Several commenters provided their concerns relating to
designation of critical habitat at Lake Isabella, California. The
issues raised were concerning potential impacts to public safety for
disruption of reservoir operations, flooding, and potential wildfire
due to vegetation growth as well as increased economic costs for the
local economy from loss of recreation and water use.
Our Response: Although we would not expect a designation of
critical habitat to impact the commenters' concerns identified above or
increase economic cost to the local economy, we have revised our
designation of the critical habitat within Unit 64 (CA-2) at Lake
Isabella to avoid those areas typically inundated and within the
floodplain of the reservoir. These areas are part of the flood control
management and operations conducted by the Corps established under
separate authorization. In addition, the Corps has already consulted
with the Service on its operations of Lake Isabella for both the
southwestern willow flycatcher and the western yellow-billed cuckoo.
Because these areas have been removed, any activities associated with
the operations of Lake Isabella by the Corps would not be impacted by
the designation of critical habitat. In addition, two areas where the
Corps obtained conservation easements are also being excluded under
section 4(b)(2) of the Act (see Exclusions Based on Other Relevant
Impacts).
Comment 66: Several organizations and groups requested that Unit 63
(CA-1) along the Sacramento River be excluded from the designation for
these stated reasons: Increased costs to agriculture, concerns about
flood control, National Wildlife Refuge (NWR) lands along the
Sacramento River already protect western yellow-billed cuckoo and its
habitat, and additional areas are not needed.
Our Response: The commenters provided general statements of their
request that Unit 63 be excluded but did not provide information or a
reasoned rationale supporting their request for exclusion. In
designating critical habitat, we avoided areas that contained developed
or agricultural lands based on aerial imagery and land classification.
Our economic analysis did not identify that designation of critical
habitat would significantly impact agricultural activities above and
beyond what may be required because of the species' listed status under
the Act. The critical habitat designation occurs along the banks of the
main stem of the Sacramento River. The designation of critical habitat
would not impact normal water delivery, flood control actions, or
stream flows required for emergency operations. In fact, such
unregulated flows assist in mimicking natural high flow events, which
can benefit sediment deposition and provide new vegetation growth for
use by the western yellow-billed cuckoo. In determining the extent of
critical habitat within a unit, we based the boundaries on areas where
the species has had continuous or nearly continuous records of
confirmed or presumed breeding. We delineated critical habitat
boundaries to provide connectivity between breeding locations and
account for the dynamic nature of habitat conditions and prey
availability. As a result, the NWR boundaries would not account for all
the areas essential to the conservation of the species, and by limiting
them to the NWR boundary, the designation would not meet the needs of
the species.
Comment 67: One group said that portions of their land included in
Unit 63 (CA-1) along the Sacramento River do not contain the PBFs and
therefore are not critical habitat. They also stated that they have
worked with the CDFW on habitat actions, and requested that portions of
their lands be excluded.
Our Response: We reviewed the areas identified by the commenter and
adjusted the boundary of the unit to reflect those areas containing the
PBFs. We also reviewed the information regarding the landowner's
agreement with CDFW. After review, we find that the landowner's
agreement does not meet our criteria for exclusion of plans as outlined
in our policy for exclusion (81 FR 7226) because it does not contain
sufficient measures to conserve the PBFs of the species' habitat or
include measures for adaptive management that would ensure that the
conservation measures are effective and can be modified to respond to
new information. Therefore, we did not consider the area identified for
exclusion.
Comment 68: Numerous environmental organizations and several other
local environmental groups stated that the entire proposed critical
habitat areas should be designated without any exclusions and that
exclusion of areas should not rely on southwestern willow flycatcher
management plans or its critical habitat for conservation of the
western yellow-billed cuckoo. They also provided information about
adding additional areas and expanding proposed areas to be sure to
include connectivity and stop over areas as well as migratory routes up
to and including entire river corridors.
Our Response: Our designation of critical habitat for the western
yellow-billed cuckoo was developed based on a specific conservation
strategy to assist in recovery of the species (see Criteria Used To
Identify Critical Habitat (Conservation Strategy)). Based on our
conservation strategy, we have concluded that the areas identified as
proposed critical habitat and now being designated are sufficient in
meeting our critical habitat designation requirements under the Act.
The conservation strategy provides for many of the measures identified
by the commenters. While we agree with the commenters that additional
areas outside the current designation are important and would
[[Page 20817]]
contribute to recovery, the designation of critical habitat is not
intended to identify all areas important for a species, but just those
considered essential. The Secretary has broad discretion in determining
if areas are appropriate for exclusion under section 4(b)(2) of the
Act. Our evaluation for determining if an exclusion is appropriate
includes a detailed analysis and balancing on whether the benefits of
excluding outweigh the benefits of including an area as critical
habitat as long as the exclusion does not lead to an extinction of the
species. The exclusions we have identified include implementation of
HCPs, other management plans, conservation agreements, or conservation
easements that protect or implement specific conservation measures for
the western yellow-billed cuckoo or its habitat (see Exclusions). As a
result, we determine that excluding these areas under section 4(b)(2)
of the Act is appropriate.
Comment 69: One commenter claimed that the Service ignored,
withheld, hid, or discounted information and as a result did not meet
the best scientific or commercial information standard under the Act in
making its determination of critical habitat. The commenter further
stated that the western yellow-billed cuckoo only rarely uses habitat
in the western DPS on a migratory and seasonal basis, which therefore
inhibits the Service's ability to delineate habitat that contains the
physical and biological features to justify the designation of critical
habitat. As a result, the designation of critical habitat for the
western yellow-billed cuckoo would be not prudent or determinable.
Lastly the commenter stated that existing regulatory mechanisms are
sufficient to protect habitat and the designation of critical habitat
is not necessary and would contribute to an already heavy regulatory
burden for the industry.
Our Response: In development of the proposed, revised, and this
final rule designating critical habitat, we used the best scientific
and commercial information available. We find the commenter's
statements regarding our ignoring, withholding, hiding, or discounting
information and not using the best scientific and commercial
information available to be baseless. In the final listing rule,
proposed critical habitat rule, revised proposal, and this final rule,
we describe the habitat, migratory and arrival patterns, nesting
behavior, and behaviors of the western yellow-billed cuckoo and its use
of habitat in great detail. The available information on the species'
life history and habitat use patterns is well documented by the
scientific community. As a result, we have sufficient information to
determine the areas essential to the conservation of the species as
critical habitat. Under the Act, we are required to designate critical
habitat for threatened and endangered species. The commenter's
statement that the existing regulatory mechanisms are sufficient to
protect habitat for the species is confusing one of the factors
considering in listing a species under the Act with the designation of
critical habitat. The Act requires Federal agencies to use their
authorities to conserve endangered and threatened species and to
consult with the Service about actions that they carry out, fund, or
authorize to ensure that they will not destroy or adversely modify
critical habitat. The prohibition against destruction and adverse
modification of critical habitat protects such areas in the interest of
conservation. In our determination of critical habitat, we took into
account the regulatory requirements of listing the western yellow-
billed cuckoo as a threatened species and evaluated any incremental
impacts and additional regulatory responsibilities of designating
critical habitat. We found that any increase in regulatory requirements
as a result of critical habitat would most likely be administrative in
nature in regard to Federal agency compliance with evaluating any
adverse modification aspects of actions they carry out, fund, or
authorize.
Comment 70: In 2015, we received a spreadsheet outlining 83,454
identical comments supporting critical habitat and 3,609 nearly
identical public comment letters. We also received another spreadsheet
containing 6,317 nearly duplicative comments in 2020. The latter
commenters were similarly supportive of critical habitat but stated
that all habitat should be designated including additional areas
smaller than 200 ac (81 ha) due to the decline of the species and its
habitat. The 2020 comments supported the inclusion of additional areas
not identified in the 2014 proposal, but were disappointed that
numerous areas were removed or partially removed (i.e., Eel (CA), Yampa
(CO), Conejos (CO), Santa Maria (AZ), and Carson (NV) Rivers) without
reason and stated that we should protect additional areas including
every stream and river stretch where western yellow-billed cuckoos
nest. They state that many of these areas are targeted for development,
and so a failure to protect them will eliminate places for western
yellow-billed cuckoos to nest. As a result, they stated that the
current proposal is insufficient for recovery of the species.
Our Response: In our revised proposed critical habitat, we
developed and described our conservation strategy to identify those
areas considered to be essential to the conservation of the species. In
implementing our strategy, we focused on designating areas where the
western yellow-billed cuckoo has shown to have consistent and recent
occupation as a breeder. Consequently, areas where sightings or
presumed breeding were sparse or inconsistent were not included in the
2020 proposal, as these areas were not considered as part of our
conservation strategy for designating critical habitat. Not designating
areas as critical habitat does not mean they are unprotected under the
Act. The western yellow-billed cuckoo is a threatened species and is
protected by the prohibitions in section 9 the Act. Critical habitat is
just one of the tools we use for species conservation. Not including
areas as critical habitat does not mean the areas outside the critical
habitat boundaries are not important or cannot be identified in future
recovery planning. We stand by our strategy for designating critical
habitat for the western yellow-billed cuckoo as the areas identified
contain the PBFs, meet the definition for critical habitat, and support
relatively large consistent breeding habitat for the species.
Comment 71: One organization and others stated that they were
opposed to limiting the designation and that a full NEPA analysis be
conducted. They also state that the Service does not adequately
describe economic benefits of designation of critical habitat. They
contend that the Service erroneously relies on plans for other species
to exclude areas from critical habitat and that if exclusions occur,
they should have clear explanations on why the areas are excluded. The
commenters stated that the Service should ensure that the designation
will not interfere with habitat restoration efforts to remove tamarisk.
Lastly the commenters contend that the Service should ensure that no
agricultural application of pesticides has the potential to affect
western yellow-billed cuckoo or alternatively the Service should expand
units that are adjacent to areas with agricultural use so that the
application of pesticides does not impact the species or its insect
prey. Another commenter stated rotenone was of particular concern.
Our Response: We developed a conservation strategy to determine
which areas to consider as critical habitat. This strategy has led us
to
[[Page 20818]]
appropriately identify the extent and distribution of critical habitat
for the western yellow-billed cuckoo (see Conservation Strategy). The
designation provides for critical habitat in areas that have shown
consistent breeding and typically have a large number of breeding
birds. The designation provides for habitat in each of the differing
landscape level ecosystems where the western yellow-billed cuckoo
occurs.
In regard to economic benefits, a primary reason for conducting the
economic analysis is to provide information regarding the economic
impacts and benefits associated with a critical habitat designation.
Executive Order 12866 directs agencies to assess the costs and benefits
of any regulatory action. The primary intended benefit of critical
habitat is to support the conservation of threatened and endangered
species, such as the western yellow-billed cuckoo. However, public
perception of limits imposed by the regulation may inadvertently cause
changes in future land use, and as a result may provide additional
benefits to the species and its habitat. In our economic analysis, data
limitations prevented us from quantifying such additional economic
benefits. Quantification of these benefits would require primary
research and the generation of substantial amounts of new data, which
is beyond the scope of our analysis and Executive Order 12866.
Prior to publication of the revised proposed rule, we completed a
draft NEPA analysis for the designation of critical habitat and made
the document available to the public by request or through the
Sacramento Fish and Wildlife Office website. After the public comment
period and our determination of the areas to be designated, we
finalized an environmental assessment with a finding of no significance
under NEPA. In our process for excluding areas from critical habitat,
we conduct a balancing analysis describing the benefits of including an
area as critical habitat versus the benefits of excluding an area as
critical habitat. Our reasoning and logic for coming to our conclusion
on whether we are or are not excluding an area is included for each
exclusion and follows our Policy for Exclusions (81 FR 7226) (see
Exclusions).
As for using other species' management plans as justification to
exclude an area, we do this on a case-by-case basis. For us to consider
use of other species' management plans, we look to whether habitat
needs and use are similar for each species to the point that the
management of the other species' habitat will also benefit the western
yellow-billed cuckoo. For this designation we have looked at numerous
southwestern willow flycatcher management plans and found that in cases
where breeding areas overlap, management actions to protect and
conserve riparian habitat are generally consistent for both species and
that using these plans is appropriate for conservation of the western
yellow-billed cuckoo.
Restoration of habitat to eliminate tamarisk could benefit the
western yellow-billed cuckoo. However, the restoration of riparian
habitat is difficult and requires long-term commitments from
stakeholders. Mere removal of tamarisk, despite being a nonnative
species, would be strongly discouraged regardless if the area is within
critical habitat or not. In Arizona and New Mexico, the western yellow-
billed cuckoo uses and breeds in tamarisk-dominated sites, especially
if other native vegetation components still exist at the site. The
western yellow-billed cuckoo also uses areas dominated by tamarisk for
foraging. Actions to remove tamarisk and restore riparian vegetation
would also need to go through section 7 consultation or section 10
permitting requirements due to the western yellow-billed cuckoo being
listed as a threatened species with critical habitat being evaluated
only as to whether Federal actions carried out, funded or permitted
would adversely modify such areas as defined by the Act.
The western yellow-billed cuckoo is protected by all the section 9
prohibitions under the Act, which includes actions that harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to
engage in such conduct. Pesticide use and application for agricultural
purposes, including use of rotenone, is already regulated under
Federal, State, and County laws, regulations, or permits. Such
application takes into account measures to avoid and reduce impacts to
wildlife and nontarget areas. Expanding additional area around critical
habitat is not the intent of designation under the Act and our
implementing regulations. In determining critical habitat, we are to
identify those areas essential to the conservation of the species by
identifying areas that contain those physical or biological features
used by the species. Including additional areas that do not contain any
physical or biological features would be contrary to our implementation
of the Act.
Comment 72: One commenter was concerned that all of the areas
previously identified in 2014 were not being included and that the new
areas identified in 2020 are still not sufficient for conservation and
recovery of the species. The commenter states that the Service should
identify areas as critical habitat for foraging, dispersal, and
migration (including unoccupied areas in the species' historical range)
and that the 200-ac (81-ha) minimum size filter should be removed.
Lastly, the commenter states that the Service should not exclude any
areas, especially those that rely on southwestern willow flycatcher
management plans.
Our Response: In determining critical habitat for the western
yellow-billed cuckoo, we developed a conservation strategy to identify
those areas essential to the conservation of the species. We made the
changes from 2014 to 2020 to reflect implementation of this strategy
(see Criteria Used to Identify Critical Habitat (Conservation
Strategy)). In delineating the areas, we included breeding habitat that
also accounts for western yellow-billed cuckoo needs for foraging,
dispersal, and migration. We did not consider unoccupied areas for
critical habitat because we determined that occupied areas were
sufficient to conserve the species. In response to our 200-ac (81-ha)
selection criterion, we used this as a general rule rather than a
strict cut-off of considering areas. In our proposed rule, we took into
account the importance and distribution of habitat and included several
areas in the revised proposed rule that included less than 200 ac (81
ha). These areas have been excluded from the final designation due to
management. We have determined that our exclusion of certain areas
meets our standards under section 4(b)(2) of the Act in that the
benefits of exclusion outweigh the benefits of inclusion as critical
habitat and will not lead to extinction of the species (see
Exclusions).
Comment 73: Several environmental organizations specifically raised
concerns that the areas identified at Elephant Butte Reservoir be
expanded to include additional critical habitat. They also suggested
justification and changes to the Service's conservation strategy, and
that the Service must do a carrying capacity for units before we
discount designating unoccupied areas.
Our Response: In our 2020 revised proposed rule, partly in response
to comments received in 2014 and 2015, we extended the proposed
designation of the Rio Grande from Elephant Butte Reservoir upstream
(Unit 37, NM-6B) to better reflect the areas being used as breeding
areas by the western yellow-billed cuckoo.
As a result of comments received, we reviewed our conservation
strategy and made minor edits and included additional language for its
justification
[[Page 20819]]
(see Criteria Used to Identify Critical Habitat (Conservation Strategy)
in this document).
Although we didn't complete a carrying capacity for the designation
as suggested by the commenters, based on the information available,
some areas have sufficient habitat that is underused by the species.
One example of this is habitat along the Sacramento River in
California. In our designation of critical habitat, we included a large
extent of habitat along the Sacramento River, which, despite losses,
has had a large population of breeding western yellow-billed cuckoos.
In recent years, this area has been and continues to be the focus of
numerous habitat restoration efforts to assist in development of
riparian habitat for numerous sensitive and listed species. Although
these restoration efforts have made more habitat available, the western
yellow-billed cuckoo has not reoccupied these areas; consequently,
habitat is not currently considered a limiting factor for the species
(Dettling et al. 2015, pp. 6-13).
Comment 74: One commenter stated that the critical habitat
designation should be expanded to protect more areas to accommodate for
species shifts in habitat use due to changing environmental conditions
brought about by climate change. The commenter cites one journal
article to support its claims regarding climate change (Thomas and
Gillingham 2015, entire).
Our Response: The study referenced by the commenter contends that
conservation of a species may be assisted by preserving and protecting
areas throughout and outside a species' range to make habitat available
to address potential changes of habitat conditions resulting from the
effects of climate change. The western yellow-billed cuckoo is a wide-
ranging species and still occurs throughout its historical range from
southwestern Canada down to Mexico during its breeding season.
Environmental conditions within this wide north-south range vary
greatly, and the effects of climate change identified for this species
were found not to be a major concern due to this variability in habitat
and the species' ability to seek out appropriate habitat (see Critical
Habitat). Based on our conservation strategy for designating critical
habitat, the extent and distribution of areas identified in the revised
proposed rule and this final rule meet our requirements under the Act
to designate areas essential to the conservation of the western yellow-
billed cuckoo as critical habitat and will most likely incorporate any
variability in environmental conditions due to the effects of climate
change.
Comment 75: Numerous commenters stated that the designation of
critical habitat would impact water management and disrupt water
availability, distribution, and delivery operations in the range of the
western yellow-billed cuckoo.
Our Response: The disruption and changes to ``natural'' river and
stream processes, which help the development and regeneration of
riparian vegetation, have been identified as a threat to the species.
However, the majority of streams and water delivery facilities within
the range of the western yellow-billed cuckoo are at least partly
managed by Federal entities or would have a Federal nexus. As a result,
these Federal agencies and other entities that are funded or permitted
by the Federal entity have an obligation to conserve endangered or
threatened species and their habitat. However, since listing of the
western yellow-billed cuckoo, we have not become aware and the
commenter did not provide any examples of any major changes to water
availability, distribution, and delivery operations in the range of the
western yellow-billed cuckoo. Our economic analysis did not identify
these water management actions as incurring significant costs. As a
result, water management actions are unlikely to be disrupted. To the
extent agencies propose to modify their water management actions in a
manner that does not appreciably diminish the value of the critical
habitat as a whole for the western yellow-billed cuckoo, it is unlikely
that these activities would meet the definition of destruction or
adverse modification of critical habitat under the Act.
Comment 76: Numerous commenters stated that the western yellow-
billed cuckoo has lost nearly 90 percent of its breeding habitat due to
human activities and that the species is further threatened by water
delivery and water management activities in the West. As a result, the
Service should designate additional areas as critical habitat.
Our Response: In our October 3, 2014, final listing rule (79 FR
59992), and in our February 27, 2020, revised proposed designation of
critical habitat (85 FR 11458), we discuss habitat loss for the species
from various actions as well as the impacts associated with water
delivery and management. We consider existing water management
operations in place on riverine segments identified as critical
habitat, unless modified subsequent to this revised proposed
designation, are unlikely to have any discernible effect on the
quantity, quality, or value of the PBFs of the area identified as
critical habitat. That is, when evaluating the effects on critical
habitat, we consider ongoing water management operations at Federal
facilities within the areas identified as critical habitat are often
not within the agency's discretion to modify and would be part of the
baseline in any effects analysis. This is particularly true of areas
upstream of reservoirs. The normal operations of filling and draw-down
of reservoirs often mimic the flooding and drying events associated
with intact riparian woodland habitat and river systems providing
habitat for the western yellow-billed cuckoo. Therefore, we do not
expect that the continuation of existing water management operations
would appreciably diminish the value or quality of the habitat. As a
result, we consider the amount and distribution of critical habitat we
identified to be appropriate based on the conservation strategy we
developed for the designation of critical habitat for the western
yellow-billed cuckoo.
Comment 77: One commenter stated that the designation of critical
habitat is duplicative regulation in that regulations are already in
place to protect riparian habitat and waterways. The Service should not
just focus on habitat in the United States, but look to other areas for
conservation actions, especially in their wintering grounds in South
America.
Our Response: Because the western yellow-billed cuckoo is a
threatened species, we are required under the Act to designate critical
habitat. According to the Act, critical habitat applies only to areas
in the United States and not to areas in other countries as it applies
to actions conducted, funded, or permitted by U.S. Federal entities.
Although the commenter is correct that conservation actions should be
taken to protect and conserve areas in the western yellow-billed
cuckoo's wintering grounds, we cannot designate critical habitat in
other countries.
Comment 78: One commenter claimed that additional research is
needed to determine which areas should be protected and considered
critical habitat for the western yellow-billed cuckoo especially in
light of future habitat loss from development.
Our Response: We are required to designate critical habitat based
on the best scientific and commercial data available. We have extensive
information on habitat use by the species and consider our designation
to be appropriate based on that information and our conservation
strategy. Should new information
[[Page 20820]]
become available that requires revision of critical habitat, we have
the authority to do so under the Act.
Comment 79: Several commenters stated that the Service relies on
unfounded claims regarding habitat loss and is not in compliance with
its requirements to use the best science available in making critical
habitat determinations. Several other commenters state that the threats
from livestock from overgrazing are unfounded based on existing range
management practices. They specified that the designation of critical
habitat is expected to place a significant economic burden on livestock
grazing operations within the States of California, Arizona, and New
Mexico. They opposed the proposed rule and requested that overgrazing
be removed from the language of the rule. In addition, one commenter
states that the maps showing the designation of critical habitat are
difficult for landowners to determine critical habitat accurately and
should determine habitat boundaries to the nearest inch.
Our Response: The loss of habitat from numerous threats is well
documented throughout the range of the western yellow-billed cuckoo.
One compendium identifies 480 state-of-knowledge publications about the
threats facing and factors contributing to the loss of riparian habitat
in the West, including the effects from agriculture, climate change,
dam construction, disease, drought, nonnative species, fire, floods,
flow regulation, forest harvesting, grazing, groundwater depletion,
insects, mining, recreation, roads, water diversions, urbanization, and
water quality (Poff et al. 2012, entire). We did not include all the
references cited in this publication in our proposed rule for critical
habitat, as the focus of designating critical habitat is not threat
identification or loss but determining areas essential to or for the
conservation of a threatened or endangered species.
Our intent of identifying cattle grazing in the 2020 revised
proposed rule was not to imply that all cattle grazing activities are
detrimental to habitat for the western yellow-billed cuckoo; on the
contrary, we mentioned cattle grazing to identify areas where proper
grazing operations have been implemented to either coexist or enhance
habitat conditions. We have clarified the language regarding livestock
grazing in this final rule. Our economic analysis of the incremental
impacts of critical habitat did not identify significant costs
attributed to the designation of critical habitat for livestock grazing
operations throughout the designation.
Our maps in the proposed and this final designation follow certain
guidelines to incorporate such maps within the Federal Register. Exact
maps showing land ownership and details to the scale recommended by the
commenter are not feasible to include in the Federal Register. We
stated in our proposed rule and this document that additional
information regarding the critical habitat can be obtained by
contacting the Lead Field Offices for the designation.
Comment 80: One group raised several concerns regarding the
designation. The commenter claims that the Service does not adequately
identify its rationale for determining and justifying whether areas are
occupied by the western yellow-billed cuckoo and as a result fails to
justify designating unoccupied areas. The commenter states that the
Service also needs to further justify its conservation strategy by
explaining how it comports with the statutory and regulatory procedures
of the Act. They further state that the Service underestimates economic
costs by limiting the costs to ``administrative'' costs, and lastly the
textual exclusions should be expanded beyond ``manmade structures'' by
revising our definition of aqueducts to include ditches, canals, and
related structures and include maintenance and vegetation removal in
right-of-ways.
Our Response: We consider the areas selected as critical habitat to
be occupied based on survey records, State Heritage occurrence data,
surveys, published documents, and information received during the
public comment periods. In our selection of breeding areas, we used
this information and selected those areas that showed recent and
consistent occupation as a breeding site or assumed breeding based on
timing and behavior. One of our purposes of revising the 2014 proposal
was to focus on those areas that documented this information and not to
designate areas that have sporadic or low breeding numbers. Because we
appropriately document and justify the areas as being occupied, we do
not inappropriately negate our obligation to discuss unoccupied
critical habitat. See Selection Criteria and Methodology Used to
Determine Critical Habitat for a discussion of our rationale for
determining critical habitat.
In determining critical habitat, as described in our 2020 revised
proposed and in this final rule, we developed a conservation strategy
to identify those areas essential to the conservation of the western
yellow-billed cuckoo as defined under section 3(5)(A)(i) of the Act.
Because one or more of the physical or biological features identified
for the western yellow-billed cuckoo occur throughout most areas
occupied by the DPS, we used the conservation strategy to assist us in
determining those areas that are essential to the conservation of the
species.
Our economic analysis appropriately considers those incremental
effects of the designation of critical habitat and applies costs to the
incremental actions and not additional costs for actions in unoccupied
habitat. As stated above, because we consider the areas occupied, the
majority of costs associated with the designation are incremental to
costs to Federal agencies for actions they conduct, fund, or permit
that may affect the species. With the addition of critical habitat,
Federal agencies will now also analyze whether their actions within the
critical habitat boundaries result in adverse modification or
destruction of designated critical habitat, and we consider those costs
to be administrative in extent.
In regard to expanding our textual exclusion descriptions, our
descriptions are adequate and the list of manmade features are merely
examples of the types of features that do not constitute critical
habitat within the designated areas. The commenter should focus on
whether the feature is manmade and hardened such that any physical or
biological features would not be present. In response to vegetation
clearing from right-of-ways see our response to Comments 7 and 56
above.
Comment 81: One commenter claims that the Service is reversing its
longstanding view that western yellow-billed cuckoo habitat comprises
riparian woodlands along large streams and that it needs large areas
for breeding. This change to the Service's identification of habitat
and use by the species greatly increases the habitat available for the
western yellow-billed cuckoo. The commenter estimates that over 65
million ac (26 million ha) of habitat are available for use by the
species based on the Service's description and on eBird record
information (Cornell Lab of Ornithology 2020, entire). The commenter
then concludes that the Service needs to reevaluate the species'
listing status as threatened because it did not consider this habitat
use and availability in its 2014 listing determination.
Our Response: Our identification of habitat follows our
requirements to specifically identify the areas containing the physical
or biological features (PBFs) essential to the conservation of the
species. After publication of the
[[Page 20821]]
2014 proposed critical habitat, we received comments that our
description of the primary constituent elements (now referred to as
PBFs) were not descriptive enough and did not characterize habitat
specifically for the western yellow-billed cuckoo. In response to those
comments, we revised the description of the PBFs to better describe the
habitat used by the species so that Federal action agencies and the
public could more easily identify such areas. Except for areas
identified as critical habitat associated with monsoon influenced
habitat in southern Arizona, we have not significantly changed the
areas considered as breeding areas used by the western yellow-billed
cuckoo. We have completed our status review of the western yellow-
billed cuckoo, which includes an evaluation of the additional habitat
used by the species and found that delisting was not warranted (85 FR
57816).
Comment 82: One commenter expressed concern for designating
critical habitat in areas where the species has not been recently
documented.
Our Response: We used the most current information available to
determine occupancy of areas we are designating as critical habitat.
The information we used included State natural heritage data, survey
information, section 10 permit reports as well as online public
occurrence information (Cornell Lab of Ornithology 2020, entire). We
solicited for and received additional occupancy information during our
public comment periods. A part of our selection criteria was to not
identify areas with older or limited detection information so that we
could focus the critical habitat designation on areas with relatively
large numbers and consistent occupation within the timeframe we chose
to determine occupancy (see Selection Criteria and Methodology Used to
Determine Critical Habitat).
Comment 83: Multiple commenters were in favor of conservation
efforts to protect the western yellow-billed cuckoo. However, one
commenter expressed concern that critical habitat designation would
burden State regulatory agencies and restrict conservation activities
on private lands.
Our Response: We are statutorily required to designate critical
habitat for a federally listed species if it is determined to be both
prudent and determinable. We made a determination that critical habitat
was both prudent and determinable in our proposed and revised proposed
critical habitat rules (79 FR 48548 and 85 FR 11458, respectively). The
designation of critical habitat does not specifically restrict
activities on private lands unless those activities require Federal
approval or are federally funded. Some third party entities (e.g.,
State or County governments) may require additional regulatory reviews
and other requirements as a result of the area's inclusion as critical
habitat, but those additional reviews are not a requirement under the
Act. We welcome the implementation of conservation measures that would
benefit the western yellow-billed cuckoo and its habitat as long as
those activities take into account impacts to the species either
through section 7 or section 10 of the Act.
Comment 84: Several local government entities raised concern that
designation of critical habitat in Colorado (Units 68 and 69) could
have severe economic impacts to areas of significant agricultural
production in Colorado that rely on continued operation of irrigation
facilities.
Our Response: Our economic analysis did not find that there would
be significant economic impacts to agriculture from the designation of
critical habitat. This includes impacts to third party entities such as
local governments or private landowner activities. The majority of
impacts to agricultural stakeholders are associated with listing of the
species as threatened under the Act and remain unchanged by this
designation.
Comment 85: Several commenters stated that Unit 68 should not be
designated as critical habitat because designation could delay and
derail restoration activities and construction of the recreational
Riverfront Trail, and inhibit management of local riverfront parks.
Our Response: We fully support riparian restoration activities such
as tamarisk removal and willow or cottonwood plantings, which benefit
the public as well as listed and non-listed native species. The
designation of critical habitat in Unit 68 would not prevent further
restoration activities along the Colorado riverfront area; rather, it
could help support continued restoration actions and potential
additional funding. Additionally, since the time of initial proposed
critical habitat in 2014 (79 FR 48548), much of the Riverfront Trail
and associated development has already been completed. We understand
the perception that there could be economic and recreation
opportunities affected by the designation. For Federal projects in the
area, consultation with the Service is already required because it is
within the known range of the species. Designating critical habitat in
the area does not change that; it just ensures that Federal projects do
not cause adverse modification to western yellow-billed cuckoo habitat.
Although there is further development planned for the riverfront area,
most of these actions are not in conflict with designation of critical
habitat because the areas being developed in the area do not provide
the physical and biological features needed for western yellow-billed
cuckoo and are not critical habitat by definition.
Comment 86: Several commenters in Colorado requested more public
outreach and information regarding the designation and potential
economic impacts of critical habitat.
Our Response: For the proposed and revised proposed designation, we
noticed and provided public outreach directly and indirectly to city
and local entities. In conducting outreach, we strove to engage the
public through multiple traditional and social media outlets. The 2020
economic analysis found that most economic impacts from critical
habitat designation are due to perceived increases in Federal
regulation, especially on property values, rather than actual
regulations. To this extent, our Grand Junction Ecological Services
Field Office is available to meet to clarify the implications of
critical habitat designation.
Comment 87: One group requested elimination of all proposed
critical habitat within Delta County, Colorado.
Our Response: We have considered and applied the best scientific
and commercial information available regarding the designation of
critical habitat for the western yellow-billed cuckoo. Due to the
continued occupancy and breeding of western yellow-billed cuckoo in the
North Fork of the Gunnison River and alignment of the area with our
conservation strategy, we consider the areas identified as critical
habitat to be appropriate and essential to the conservation of the
species. In regard to the commenter's request to exclude areas from the
critical habitat designation, the commenters provided no specific
information or reasoned rationale as described in our preamble
discussion in our Policy on Exclusions (81 FR 7226) and as requested in
our revised proposed rule designating critical habitat for the western
yellow-billed cuckoo (85 FR 11502) to support requests for exclusion.
For the Service to evaluate an exclusion request, the commenter must
provide supporting information concerning how their activities would be
limited or curtailed by the designation. Therefore, we did not
[[Page 20822]]
exclude any areas in Delta County, Colorado.
Comment 88: A commenter expressed concern that critical habitat
would affect 9 outfall locations in natural drainages, 19 open (un-
piped) and 3 piped historical outfalls to the Colorado River, as well
as municipal drainage facilities. The risk of flooding increases if
they are not able to clear drainages.
Our Response: Designation of critical habitat would only affect
actions funded or permitted through a Federal nexus. In such
circumstance, the Federal agency would need to consult with the Service
and conduct an adverse modification analysis if the proposed action
would impact designated critical habitat. Federal agencies are already
required to consult with the Service if their actions would affect the
species.
Comment 89: One group commented that critical habitat should also
be designated on the Gunnison River, south of Delta, Colorado; along
the Colorado River through McInnis Canyon National Conservation Area to
the Utah State line; side drainages as well as main rivers; and areas
that could become habitat in the future if managed better. Similarly,
another commenter stated that areas on Plateau Creek between Collbran
and Plateau Valley, and areas in Hotchkiss and Paonia that require
restoration should be included in the designation.
Our Response: Although western yellow-billed cuckoo may migrate
through the habitat in areas along the Gunnison River and the Colorado
River west of Grand Junction, we focused our critical habitat
designation on areas occupied at the time of listing that provide the
patch sizes generally preferred by western yellow-billed cuckoo for
breeding, and avoided selection of small and isolated riparian areas
(85 FR 11464). We identified critical habitat in areas that are
currently used for breeding and contain the PBFs essential to the
conservation of the species. We have determined that these areas are
sufficient and meet our requirements of designating critical habitat
for the species and did not look at areas that didn't meet our breeding
criteria or needed restoration and were unoccupied such as those
identified by the commenters.
Comment 90: Mesa County, Colorado, commented that the economic
analysis is not specific to Mesa County and the Grand Valley and is
concerned over restricted land use, especially in Palisade where there
are many vineyards and orchards.
Our Response: The draft economic analysis describes the estimation
of economic impacts from designating critical habitat. The analysis
describes the primary cost associated with designating critical habitat
from additional analysis in section 7 consultation for effects to
critical habitat and adverse modification. The rangewide administrative
burden resulting from the designation was found to be not significant
and no single area identified as critical habitat was found to have
disproportionate cost requiring additional analysis. Orchards and
vineyards do not contain the physical or biological features essential
to the conservation of the species and are therefore not considered
critical habitat, even if those areas are within the critical habitat
boundary.
Comment 91: Commenters recommended that critical habitat be
designated in southeastern Colorado on the Upper Rio Grande and Conejos
Rivers because the San Luis Valley Habitat Conservation Plan seems more
protective of southwestern willow flycatcher and yellow-billed cuckoo
critical habitat should be designated independent of any other species'
critical habitat.
Our Response: We revised critical habitat units for the 2020
revised proposed rule in accordance with the conservation strategy
described within the document. In addition to the protections to
western yellow-billed cuckoo from the HCP, the previously proposed
units did not meet the conditions of our conservation strategy to
designate critical habitat, because the number of breeding pairs was
low or because breeding was intermittent.
Comment 92: Multiple commenters recommended that the Service
designate critical habitat in unoccupied areas to allow expansion of
the current occupied range.
Our Response: We have considered and applied the best scientific
and commercial information available regarding designation of critical
habitat for the western yellow-billed cuckoo. We have determined that
we can better conserve the species by focusing on occupied breeding
areas that have been and are consistently used by the species. As a
result we developed a conservation strategy that identified certain
areas throughout the species range. The extent and distribution of
these areas along main-stem rivers throughout the species' breeding
range and the migratory behavior of the western yellow-billed cuckoo
allows these areas to naturally be used as pathways and stop-over
habitat. As a result, the designation of unoccupied areas is not
necessary or justified.
Comment 93: Two commenters requested that proposed exclusions in
Units 68 and 69 be avoided pending verification of appropriate
management plans for those areas.
Our Response: In our proposed and this final rule, we did not
identify or exclude areas from Unit 69 (CO-2) because no information
was provided to support their request for conducting an analysis. We
have considered the management plans for Colorado State lands in Unit
68 and find that the benefits of excluding these areas outweigh the
benefits of designation of critical habitat in these areas and that the
exclusion will not lead to the extinction of the species. As a result,
we have excluded certain areas from Unit 68 from the final designation.
See Exclusions, Private or Other Non-Federal Conservation Plans or
Agreements and Partnerships, in General.
Comment 94: In 2014, one commenter stated that there is not enough
information about proposed critical habitat sites in Colorado
(previously identified as Units 54 and Units 57-60) to exclude or
include them in critical habitat and that the Service did not fully
consider a peer-reviewer's recommendations of three additional sites to
consider: Collbran/Plateau City (Plateau Creek in Mesa County),
sections of the La Plata River (La Plata County, Colorado), and
sections of the Piedra River (La Plata County, Colorado), where birds
have been detected on private property during the breeding season but
suitable habitat is dependent on irrigation ditches for water.
Our Response: We revised critical habitat units for the 2020
revised proposed rule in accordance with the conservation strategy
described within the document. We have considered and applied the best
available scientific and commercial information regarding habitat for
the western yellow-billed cuckoo, including all peer-reviewed and
public comments. We reviewed all areas identified by the commenter as
to whether they met our goals identified in our conservation strategy
and criteria for designation. We have determined that the additional
areas identified by the peer reviewer did not meet our designation
criteria due to lack of breeding information and suitable habitat
requiring additional management.
Comment 95: One organization requested the Service provide details
on the ``other'' category of Table 1 (85 FR 11477-11478) for Units 68
and 69 in Colorado.
Our Response: The ``other'' category contains all property owned by
counties, cities, private landowners, or
[[Page 20823]]
unknown ownership. Table 1 has been updated with new parcel information
for Unit 68 with 2,766 total ac (1,119 ha) in the ``other'' category.
This includes approximately 500 ac (202 ha) owned by cities, 106 ac (43
ha) owned by Mesa County, approximately 14 ac (6 ha) owned by a
nongovernmental organization, 1,302 ac (527 ha) privately owned, and
844 ac (342 ha) with unknown ownership. Unit 69 has not been changed,
and ownership is also identified in Table 1. The implications of
critical habitat designation on lands in the ``other'' category do not
differ amongst each other, as effects to critical habitat would need to
be considered only in the case of a Federal nexus.
Comment 96: One commenter stated that the Service should consider
the economic benefits of wildlife and bird watching and recreation in
riparian habitats.
Our Response: In our economic analysis, data limitations prevented
us from quantifying such additional economic benefits. Quantification
of these benefits would require primary research and the generation of
substantial amounts of new data, which is beyond the scope of our
analysis and Executive Order 12866. Although the information regarding
economic benefits is important, we cannot determine those benefits at
this time.
Comment 97: The group commented on Unit 67 (ID-3) of the revised
proposed rule and suggested revisions to the unit description and
recommended deleting several threats regarding water delivery and
hydrologic functioning identified in Table 2 (Threats to Habitat and
Potential Special Management Considerations). The commenter stated that
water management actions and existing hydrology are sufficient to
support the critical habitat designation on the Henry's Fork River and
South Fork of the Snake River. The Henry's Fork Foundation provided
information regarding a hydrologic study being conducted by Utah State
University through funding from a partnership of several Federal,
State, and other stakeholders of existing water management in the Snake
River basin to support its request.
Our Response: As a result of comments, we revised the unit
description for Unit 67. In the Application of the ``Adverse
Modification'' Standard section, we address existing water management
operations in place on riverine segments identified as critical
habitat, unless modified subsequent to this revised designation, and
state that these operations are unlikely to have any discernible effect
on the quantity, quality, or value of the PBFs of the area identified
as critical habitat for the western yellow-billed cuckoo since these
areas support western yellow-billed cuckoo habitat and breeding with
the existing management in place. That is, when evaluating the effects
on critical habitat, we consider ongoing water management operations
within the designated units that are not within the agencies'
discretion to modify to be part of the baseline of an effects analysis.
Reclamation is mandated through the Flood Control Act of 1944 [16
U.S.C. 460d (and various sections of titles 33 and 43 U.S. Code)] to
manage water operations on the South Fork and the Henry's Fork of the
Snake River. Therefore, the management and flows of the South Fork and
the Henrys Fork of the Snake River are not expected to be impacted by
the designation of critical habitat. As a result, we have revised the
actions that may require special management considerations from Table 2
of this final rule.
Comment 98: Several commenters recommended in 2014 and 2020 that
the Service extend Unit 67 (ID-3) to include additional areas upstream
of the unit and to add more cottonwood forest lands managed by the BLM
and the USFS along the Henry's Fork and South Fork of the Snake River
upstream to Palisades Dam. Further, the commenter suggested including
the USFS and BLM island complex of habitat in Swan Valley, Idaho, where
western yellow-billed cuckoos were detected by Idaho Department of Fish
and Game survey crews in 2011. One of the commenters suggested
including the Boise River from eastern Boise to the Snake River.
Our Response: We reviewed the information regarding western yellow-
billed cuckoo occurrence and habitat upstream of the area described in
our 2014 proposed critical habitat and revised Unit 67 (ID-3) as
described in our 2020 revised proposed critical habitat designation to
include the additional areas as requested.
The Swan Valley locations recommended for inclusion constitute
habitat supportive of the western yellow-billed cuckoo; however, they
are isolated from other areas of habitat, and the observation record
indicates it is only sporadically occupied. The Boise River is
considered to be periodically used by western yellow-billed cuckoo as
stop-over habitat, but also does not have consistent use associated
with breeding individuals of the species. As a result, we did not
consider critical habitat in these areas based on our Conservation
Strategy and criteria for designating critical habitat.
Comment 99: One group stated that the western yellow-billed cuckoo
appear only sporadically in Idaho and do not currently exist there.
They state that the species has not suffered from loss of habitat and
that the designation of critical habitat will not increase western
yellow-billed cuckoo populations. They further state that the Service
has not considered the negative impact on the economy and that the
designation of critical habitat will be extremely detrimental to
private and locally owned property.
Our Response: The current range of the western yellow-billed cuckoo
includes portions of or the entire States of Arizona, California,
Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Texas, Utah, and
Washington as well as into southwestern British Columbia, Canada.
However, the breeding range for the species has contracted with a
northern extent in southeastern Idaho. Western yellow-billed cuckoos
consistently use habitat along the South Fork Snake River, Henry's Fork
Snake River, and the mainstem Snake River (Reynolds and Hinckley 2005;
IDFG 2013). As identified in our final listing rule, one of the reasons
for decline of the breeding range for the species has been habitat
loss. We are required to designate critical habitat for threatened and
endangered species under the Act. Several benefits of critical habitat
are that it requires Federal agencies to consult with the Service to
avoid destruction or adverse modification of critical habitat and
identifies areas to focus conservation. Increasing populations may or
may not be an outcome of a designation of critical habitat, but are not
a requirement for designation.
The designation of critical habitat does not authorize the Service
to regulate private actions on private lands or to confiscate private
property as a result of a critical habitat designation. Designation of
critical habitat does not affect land ownership or establish any
closures or restrictions on use of or access to the designated areas.
Critical habitat designation also does not establish specific land
management standards or prescriptions, although Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. We conducted an
economic analysis on the revised proposed critical habitat designation.
The economic analysis took into consideration the incremental economic
impacts above those associated with listing of the species as
threatened under the Act. Because the species is listed, private and
local land-owners
[[Page 20824]]
would still be subject to section 7 (if their actions require Federal
funding or permitting) and section 10 under the Act. Our economic
analysis did take into consideration ``third party'' requirements that
may be implemented by local (State, county, or city entities) as a
result of the designation; however, the analysis did not identify these
requirements as significant enough to be identified as requiring
additional review or require the areas to be excluded under section
4(b)(2) for economic reasons.
Comment 100: One group stated that neither current land management
practices nor regulatory processes are in place to account for the
decline of habitat through the reduction of understory vegetation from
grazing and water management practices. The commenter contends that the
Service should recognize that understory vegetation is equally
important as overstory vegetation to suitable western yellow-billed
cuckoo habitat. The group recommended: (1) Improving management of
livestock; (2) listing western yellow-billed cuckoo as endangered; (3)
prohibiting pesticide use in critical habitat units or extremely
careful management; (4) including designated critical habitat units
farther upstream and downstream of the proposed units; (5) including
tributaries with the basic habitat needs; (6) working with all willing
property owners to restore habitat to be more continuous; and (7)
designating unoccupied areas that are strategically located along
migratory pathways to the units.
Our Response: In listing the western yellow-billed cuckoo under the
Act, we took into consideration land management and regulatory
processes that are already in place and that may protect its status,
and we determined that the species may become endangered in the
foreseeable future as a threatened species without measure to alleviate
the species' threats. In our revised proposed rule, we identified both
overstory and understory habitat structure and components as physical
or biological features for the species. We based our designation on our
conservation strategy and developed specific designation criteria to
identify those areas essential to the conservation of the species as
critical habitat. The extent of the units and whether to identify
unoccupied units were part of our analysis in considering which areas
meet the definition of essential for the western yellow-billed cuckoo.
The amount and extent of the designation and limitation to occupied
breeding areas are appropriate and supported by our rationale for
determining critical habitat for the species (see Criteria Used To
Identify Critical Habitat (Conservation Strategy).
Comment 101: One private company commented that while it recognizes
that consultation would be required if a transmission line was rebuilt,
ongoing operations and maintenance of preexisting lines (rights-of-way
areas) should be included in the baseline analysis. The company
requested that American Falls Reservoir not be subject to consultation
requirements, because the reservoir has been in operation since 1927
and the effects of the action are ongoing.
Our Response: Rights-of-way are agreements that impose a status on
the use of lands rather than describing the condition of the land as
humanmade structures. Because actions taking place within rights-of-way
areas may impact the habitat conditions for the western yellow-billed
cuckoo, consultation with the Service may be required. In the
Application of the ``Adverse Modification'' Standard section, we
address that existing water management operations in place on riverine
segments identified as critical habitat, unless modified subsequent to
this revised designation, are unlikely to have any discernible effect
on the quantity, quality, or value of the PBFs of the area identified
as critical habitat. That is, when evaluating the effects on critical
habitat, the Service considers mandated water management operations
within the designated units that are not within the agencies'
discretion to modify to be part of the baseline. See also our response
to Comments 7 and 56 regarding rights-of-way.
Comment 102: One commenter stated in 2014 that the Service appears
to be acting on insufficient knowledge of which areas within Unit 52
(now Unit 37: NM-6A and NM-6B) are occupied by the western yellow-
billed cuckoo, and proposes that further studies are necessary to
determine which specific sites are appropriate for designation
according to the comparative benefits criteria spelled out for
determining exclusion under section 4(b)(2) of the Act.
Our Response: Since 2014, formal protocol surveys have been
completed in the area of this Unit that is now designated as critical
habitat and further support our previous conclusion that the area
supports the occupancy of western yellow-billed cuckoos by the criteria
specified in the Selection Criteria and Methodology Used to Determine
Critical Habitat section of the 2020 revised proposed rule (85 FR
11458) and this final designation.
Comment 103: In 2014 and 2020, one commenter requested exclusion of
the U-Bar Ranch in New Mexico based on the commenter's Management Plan,
which provides conservation to the western yellow-billed cuckoo and its
habitat.
Our Response: The Service commends the longstanding monitoring and
restoration efforts specifically along the U-Bar Ranch that have been
undertaken by the landowner. We have conducted an exclusion analysis
and have excluded U-Bar Ranch lands from this final designation. See
Exclusions Private or Other Non-Federal Conservation Plans or
Agreements and Partnerships, in General.
Comment 104: One commenter expressed its support for efficient
Federal water and power projects and would like the Service to further
clarify the riparian areas that were included or combined into a single
larger critical habitat unit (as described in 85 FR 11465). The
commenter also commented that the commenter would like existing and
future power lines within western yellow-billed cuckoo critical habitat
to be excluded from the final critical habitat designation.
Our Response: As described in our revised proposed rule (85 FR
11465), the areas of habitat that were included or combined into a
single larger unit depended on the extent of use of the areas by
western yellow-billed cuckoo, the relative amount of habitat gained if
the multiple patches were included or combined, the relationship of the
area to the overall designation, and the ease or complexity of removing
all nonhabitat from the designation. Also western yellow-billed cuckoo
habitat in ideal conditions is dynamic and requires areas for regrowth.
By including some open areas, we take into consideration this
opportunity for natural regrowth of habitat. The suitability of
individual patches within a unit may vary over time as far as abundance
of occupancy or amount of PBFs present and would need to be evaluated
on a case-by-case basis and would adjust over time.
In the event that powerline construction and/or maintenance result
in adverse effects to the species and/or critical habitat, consultation
with the Service is expected to occur to provide exemptions to the
prohibitions of section 9 in the Act. As noted above, our Policy on
Exclusions outlines the procedures we follow for considering and
conducting exclusions (81 FR 7226). In this case, the commenter
provided general statements of its desire for rights-of-way to be
excluded but did not provide any additional information or a reasoned
rationale that would
[[Page 20825]]
support the request for exclusion. In addition, any hardened structures
(such as buildings, aqueducts, runways, roads, bridges, and other paved
or hardened areas as a result of development) and the land on which
they are located is not considered to be critical habitat. Accordingly,
the transmission towers are already not part of the designation.
However, the rights-of-way associated with the power transmission lines
may contain vegetation and habitat containing the physical or
biological features essential to the conservation of the western
yellow-billed cuckoo. Because no additional information was provided to
support the request for exclusion, these areas are not excluded from
the designation.
Comment 105: Several commenters stated that there are already
conservation plans and strategies as well as habitat protections for
other federally listed species overlapping with the revised proposed
critical habitat unit(s). In addition, they state that critical habitat
is already designated for other species (such as the southwestern
willow flycatcher) that fundamentally have the same habitat
requirements (PBFs) as the western yellow-billed cuckoo. Therefore, in
the view of these commenters, designation of critical habitat for the
western yellow-billed cuckoo is redundant and not necessary.
Our Response: As part of the listing process, we are required to
designate critical habitat for species listed as threatened or
endangered under the Act. Although conservation measures may be
implemented for other species and designated critical habitat for
multiple species may overlap, each species' critical habitat and
conservation requirements can be different. Critical habitat comprises
specific areas occupied by that species and contains the physical or
biological features that are essential to the conservation of that
species. The focus of this designation is to identify and conserve the
unique habitat features of the western yellow-billed cuckoo. While
additional conservation plans and strategies for other federally listed
species may provide benefits to western yellow-billed cuckoo and its
habitat, we base our critical habitat designations on what is uniquely
necessary for the western yellow-billed cuckoo and its specific habitat
requirements. In addition, if the other species protected by any
preexisting conservation programs were to be delisted, this could
eliminate protections for the western yellow-billed cuckoo and its
habitat. In some cases, such as with the western yellow-billed cuckoo
and southwestern willow flycatcher, the areas used by the two species
are the same and management and conservation of those areas would
benefit both species. However, the ecological niche and certain
physical or biological features needed by the two species are different
such as habitat patch size and nest site selection. In addition, the
range of the southwestern willow flycatcher does not include the entire
breeding range of the western yellow-billed cuckoo. As a result, if we
relied only on critical habitat for the southwestern willow flycatcher
to provide protection for the western yellow-billed cuckoo, large areas
of the species' breeding range would not be designated.
Comment 106: Several commenters stated that the proposed critical
habitat includes unsuitable, unoccupied habitat, and thus should not be
included in our final critical habitat designation.
Our Response: We based our designation on the best scientific and
commercial information available including information on occupancy and
use of areas we are considering as critical habitat. This included
gathering, reviewing, and evaluating information from multiple sources
including information from State wildlife agencies, State Natural
Heritage databases, Cornell Lab of Ornithology (eBird data),
researchers, nongovernment organizations, universities, and
consultants, as well as information from our files. During our process
for proposing and finalizing this designation of critical habitat, we
used a systematic approach to assess potential critical habitat
throughout the designation that included an analysis of habitat that
contained the physical or biological features that are essential to the
conservation of the species.
Comment 107: Multiple commenters stated that oil and gas
development will be negatively impacted by designating critical
habitat. One commenter stated that the economic analysis fails to
consider impacts to oil and gas development.
Our Response: Under section 4(b)(2) of the Act, economic and social
impacts are considered in the process for designating critical habitat
for species listed under the Act. Our economic analysis did not find
that oil and gas development would be significantly impacted by the
designation of critical habitat. Executive Order 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use) takes into account effects to oil and gas
development that could potentially result from designating critical
habitat. We do not expect that a critical habitat designation for the
western yellow-billed cuckoo would significantly affect energy
supplies, distribution, or use, because the areas identified as
critical habitat are along riparian corridors in mostly remote areas
with little energy supplies, distribution, or infrastructure. In areas
where the western yellow-billed cuckoo is present, Federal agencies are
required to consult with our agency under section 7 of the ESA on
activities they fund, permit, or implement, which may affect the
species. Section 7(a)(1) of the ESA charges Federal agencies to aid in
the conservation of listed species, and section 7(a)(2) requires the
agencies to ensure that their activities are not likely to jeopardize
the continued existence of listed species or adversely modify
designated critical habitats. In our economic analysis, we identified
oil and gas development as an activity and considered the impact of
critical habitat on those activities. Because section 7 consultation is
already required for Federal projects that could impact western yellow-
billed cuckoo, the additional process necessary to avoid the
destruction or adverse modification of critical habitat would be a
minor additional step in the existing consultation process. Therefore,
economic impacts to oil and gas development would be minimal as a
result of this critical habitat designation.
Comment 108: A commenter stated that western yellow-billed cuckoo
surveys are incomplete and that some areas that should have been
included in our proposed critical habitat designation were incorrectly
excluded.
Our Response: The Service is required to use the best scientific or
commercial information available in determining critical habitat. We
accomplish this by gathering, reviewing, and evaluating information
from multiple sources prior to designating critical habitat.
Information, including surveys, used for the western yellow-billed
cuckoo critical habitat analysis was obtained from reports prepared by
several entities including the U.S. Geological Survey (USGS), USFS,
NPS, BLM, Reclamation, State wildlife agencies, State Natural Heritage
databases, Cornell Lab of Ornithology (eBird data), researchers,
nongovernmental organizations, universities, and consultants, as well
as information from our files. Because we listed the species as
threatened in 2014, we used information up to that point in determining
occupancy for determining whether the areas considered as critical
habitat would fall under section 3(5)(A)(i) as being occupied at the
time of listing or section 3(5)(A)(ii) as being occupied after the time
of listing. We also reviewed records subsequent to listing (2015-2019)
to confirm
[[Page 20826]]
occupancy of the areas being designated.
Comment 109: A commenter stated that the Service is considering
designating western yellow-billed cuckoo critical habitat in every
place where the species occurs, instead of limiting it to just the
locations that are necessary for recovery.
Our Response: We are not designating critical habitat in every
place where the species occurs. Part of our conservation strategy and
criteria for designating critical habitat for the western yellow-billed
cuckoo were intended to focus the designation on breeding areas larger
than 200 ac (81 ha) in extent. The western yellow-billed cuckoo still
occurs in areas throughout its historical range from Texas to south-
western British Columbia, Canada. We did not designate critical habitat
in Nevada, Oregon, or Washington or in other areas in States where,
although there is confirmed breeding, the areas are not part of our
conservation strategy.
Comment 110: A commenter stated that alternate survey methods
should have been used to identify occupied and suitable habitat for the
western yellow-billed cuckoo.
Our Response: We recognize that due to the reclusive nature of the
western yellow-billed cuckoo, the remoteness of some areas it occupies,
the difficulty in conducting surveys, and inconsistent survey
methodology, the majority of the species' range has not been surveyed
on a regular basis or may not have comparable survey data to give an
absolute determination of population distribution and occupancy.
However, despite these survey challenges, key areas throughout the
western DPS have been surveyed more consistently and give some
indication of persistence and site fidelity. Therefore, we based our
analysis of occupancy on detection records starting in 1998 and ending
in 2014, when we listed the western yellow-billed cuckoo as a
threatened species. The 1998 to 2014 timeframe was chosen because it
includes the last statewide western yellow-billed cuckoo surveys in
areas where the majority of individuals within the DPS's range occurs
and represents the best available information on long-term occupancy.
For the 2020 revised proposed rule, we proposed additional units we
consider to have been occupied at the time of listing using new data
received through the 2017 breeding season. To further support
designation of these units, we used additional occupancy or nesting
data up until the 2020 breeding season.
Comment 111: A commenter stated that HCPs should not be used to
exclude areas from critical habitat designation for the western yellow-
billed cuckoo.
Our Response: HCPs are typically required as part of an application
for an incidental take permit through section 10 of the Act for actions
that would occur on private lands and would impact federally listed
species. We conduct internal section 7 consultation on issuance of the
incidental take permit under section 10. These plans must include how
impacts would be minimized or mitigated to the maximum extent
practicable, and therefore provide a level of protection for listed
species. In excluding HCPs, we conduct a balancing analysis and compare
the benefits of excluding areas verses the benefits of including areas
as critical habitat. For exclusions under section 4(b)(2) of the Act,
the Secretary has broad discretion on excluding areas from critical
habitat. See Exclusions Private or Other Non-Federal Conservation Plans
Related to Permits Under Section 10 of the Act for a discussion of the
HCPs being excluded and the balancing analysis as well as our rationale
for exclusions.
Comment 112: One commenter stated that we should exclude areas that
are managed by Federal agencies from critical habitat designation for
western yellow-billed cuckoo.
Our Response: Federal agencies are required to conserve endangered
and threatened species and utilize their authorities to further the
purposes of the Act. Critical habitat is a mechanism under the Act that
requires that actions that Federal agencies conduct, permit, or fund
not adversely modify the areas identified as critical habitat for an
endangered or threatened species. As a result, Federal agencies are in
a position to uniquely contribute to sensitive species management and
conservation. Wholesale exclusion of Federal lands or areas managed by
Federal agencies would remove the intended conservation components
intended under the Act. However, under section 4(b)(2) of the Act, the
Secretary may exclude Federal lands in certain circumstances from
designation if the benefits of exclusion outweigh the benefits of
inclusion and exclusion will not lead to the species extinction. As
noted above, consideration of possible exclusions from critical habitat
are in the Service's discretion, but we have indicated that a proponent
should provide information or a reasoned rationale (81 FR 7226) and we
specifically solicited such information in our revised proposed
designation of critical habitat for the western yellow-billed cuckoo
(85 FR at 11502) In this case, the commenter has not provided
information to support the requested exclusion. Although we have
excluded some Federal lands from the designation, we find that
excluding all Federal lands from the designation for the western
yellow-billed cuckoo is not appropriate.
Comment 113: Several commenters claim that the Service did not
adequately consider economic impacts as a result of designating
critical habitat for the western yellow-billed cuckoo, and another
commenter stated that agricultural operations will be negatively
impacted by designating critical habitat for the western yellow-billed
cuckoo.
Our Response: We developed an economic analysis of the incremental
effects of designating critical habitat and made the document
available, along with our analysis and findings, in connection with
publishing our proposed rule and revised proposed rule (see IEc 2019
entire; IEc 2020, entire). Our analysis took into consideration those
activities within the critical habitat areas. The commenter did not
provide alternative information or data to suggest our economic
analysis and review was insufficient but point to costs that may be
part of the species' listing and not to those actions solely as a
result of the designation of critical habitat.
When we mapped the boundaries for the proposed critical habitat, we
avoided identifying agricultural lands within the proposed designation
because these lands generally do not provide the physical or biological
features that are essential to the conservation of the western yellow-
billed cuckoo. In addition, any agricultural lands included within the
boundary of the proposed designation would likely not be considered
critical habitat because these lands do not contain the physical or
biological features necessary for yellow-billed cuckoo habitat. In our
evaluation of the economic impacts that may result from the proposed
designation of critical habitat for the western yellow-billed cuckoo
(IEc 2019, entire; IEc 2020, entire), we identified probable
incremental economic impacts associated with agriculture and found that
the critical habitat designation for the western yellow-billed cuckoo
would not significantly affect agricultural operations.
Comment 114: Multiple commenters requested that the economic
analysis follow the Tenth Circuit's requirement to adopt a
``cumulative'' or ``co-extensive'' approach to quantifying impacts.
[[Page 20827]]
Our Response: Because the primary purpose of the economic analysis
is to facilitate the mandatory consideration of the economic impact of
the designation of critical habitat, to inform the discretionary
section 4(b)(2) exclusion analysis, and to determine compliance with
relevant statutes and Executive orders, the economic analysis should
focus on the incremental impact of the designation. The economic
analysis of the designation of critical habitat for the western yellow-
billed cuckoo follows this approach.
The Service acknowledges that significant debate has occurred
regarding whether assessing the impact of critical habitat designations
using the incremental approach is appropriate, with several courts
issuing divergent opinions. Most recently, the Ninth Circuit concluded
that the incremental approach is appropriate (Home Builders Association
of Northern California v. United States Fish and Wildlife Service, 616
F.3d 983 (9th Cir. 2010); Arizona Cattle Growers v. Salazar, 606 F.3d
1160 (9th Cir. 2010)). Subsequently, on August 28, 2013, the Service
revised its approach to conducting impact analyses for designations of
critical habitat, specifying that the incremental approach should be
used (78 FR 53062).
Comment 115: One commenter stated that the economic analysis for
this action should not use the economic analysis for the designation of
critical habitat for the southwestern willow flycatcher as the basis
for its estimates. The commenter stated that the southwestern willow
flycatcher analysis failed to include significant cost elements,
including registration of pesticides under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and costs to water management
and use.
Our Response: The revised screening analysis for the proposed
critical habitat designation does not use the costs projected in the
southwestern willow flycatcher economic analysis to inform its
estimated costs. Instead, the economic analysis for the western yellow-
billed cuckoo relies on the consultation history for the western
yellow-billed cuckoo since its listing as a threatened species in 2014,
compiled from the Service's Tracking and Integrated Logging System
(TAILS) database. Reference to the southwestern willow flycatcher is
made simply with regard to identifying existing baseline regulatory
protections that overlap the geographic areas proposed for designation
in this rulemaking.
Comment 116: Multiple commenters expressed concern that the
economic analysis generally understates the direct, indirect, and
induced costs; regulatory delays; and other economic effects expected
to result from the designation of critical habitat.
Our Response: These comments do not identify specific data sources
or assumptions used in the economic analysis that may be inaccurate.
The comments also do not provide new information that could be used to
revise the economic analysis. Section 3 of the economic analysis
outlines the substantial baseline protections currently afforded the
western yellow-billed cuckoo throughout the proposed designation. These
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all
proposed critical habitat units, as well as overlap with habitat of
other, similar listed species and designated critical habitat. As a
result of these protections, the economic analysis concludes that
incremental impacts associated with section 7 consultations for the
western yellow-billed cuckoo are likely limited to additional
administrative effort. The analysis forecasts future section 7
consultation activity based on consultations for the western yellow-
billed cuckoo that have occurred since its listing in 2014. Using these
historical consultation rates and applying estimated consultation costs
presented in Exhibit 3 of the analysis, we expect that the additional
administrative costs incurred by critical habitat designation will not
exceed $74,000 in a given year.
Comment 117: Multiple commenters objected to the screening approach
applied in the economic analysis. In particular, one commenter noted
that the proposed critical habitat would span nine geographically
diverse States, and requested that the Service consider impacts to each
local economy separately rather than grouping these diverse regions
into a single analysis.
Our Response: The primary purpose of the economic analysis is to
facilitate the mandatory consideration of the economic impact of the
designation of critical habitat, to inform the discretionary section
4(b)(2) exclusion analysis, and to determine compliance with relevant
statutes and Executive orders. To support these considerations, the
economic analysis estimates costs at the level of individual critical
habitat units (see Exhibit A-2). The magnitude of anticipated
incremental section 7 costs, based on historical consultation data for
the western yellow-billed cuckoo following its listing in 2014, is
unlikely to exceed $74,000 in a given year. These costs are likely to
be small relative to the economies of the communities, and the majority
of these costs are borne by the Service and Federal action agencies.
Comment 118: One commenter expressed concern about the assumption
used in the economic analysis that incremental effects will be minimal
in areas currently protected for the endangered southwestern willow
flycatcher. The commenter noted that, if the southwestern willow
flycatcher recovers before the western yellow-billed cuckoo, those
protections would disappear. For this reason, the commenter requested
that the Service not exclude areas from the final designation of
critical habitat for the western yellow-billed cuckoo based on the
presence of protections for the southwestern willow flycatcher.
Our Response: Section 3 of the economic analysis describes several
baseline protections afforded the western yellow-billed cuckoo in
support of the conclusion that incremental costs associated with
section 7 consultations are likely limited to administrative costs. Of
these baseline protections, the primary protection is the concurrent
listing of the western yellow-billed cuckoo under the Act. Because all
proposed critical habitat units for the western yellow-billed cuckoo
are considered occupied by the species, all projects with a Federal
nexus will be subject to section 7 requirements regardless of whether
critical habitat is designated. In addition, we expect that, except in
cases that cannot be predicted at this time, project modifications
recommended to avoid adverse modification of western yellow-billed
cuckoo habitat will be the same as those needed to avoid jeopardy to
the species. As a result, the section 7-related costs of designating
critical habitat for the western yellow-billed cuckoo are likely to be
limited to additional administrative effort to consider adverse
modification in consultation. This conclusion would not change if the
protections currently afforded the southwestern willow flycatcher were
removed due to recovery of the southwestern willow flycatcher. Although
the specific habitat characteristics and ecological niche occupied by
the southwestern willow flycatcher and western yellow-billed cuckoo are
different, implementing conservation actions in the areas where they
co-occur can be managed together. Numerous plans are in place for the
southwestern willow flycatcher because of its earlier listing (1995)
compared with the listing of the western yellow-billed cuckoo (2014).
We have been working with entities with southwestern willow flycatcher
management plans to update their plans to specifically
[[Page 20828]]
include the western yellow-billed cuckoo. Should the southwestern
willow flycatcher be delisted, we are certain that individuals with
southwestern willow flycatcher management plans would continue to
provide conservation for the western yellow-billed cuckoo and excluding
these areas would most likely further incentivize these efforts.
Comment 119: One commenter questioned the per-consultation
incremental administrative costs used in the economic analysis. The
commenter suggested that the economic analysis determine administrative
costs on a project-by-project basis.
Our Response: The economic analysis relies on the best available
information on administrative costs. The costs presented in Exhibit 3
of the economic analysis were developed based on data gathered from
three Service field offices (including a review of consultation records
and interviews with field office staff); telephone interviews with
action agency staff (e.g., BLM, USFS, Corps); and telephone interviews
with private consultants who perform work in support of permittees. In
the case of Service and Federal agency contacts, we determined the
typical level of effort required to complete several different types of
consultations (i.e., hours or days of time), as well as the typical
Government Service (GS) level of the staff member performing this work.
In the case of private consultants, we interviewed representatives of
consulting firms to determine the typical cost charged to clients for
these efforts (e.g., biological survey, preparation of materials to
support a Biological Assessment). The model is periodically updated
with new information received in the course of data collection efforts
supporting economic analyses and public comment on more recent critical
habitat rules. In addition, the GS rates are updated annually. The
economic analysis relies on this cost model because estimating
incremental administrative costs on a project-by-project basis would
require the collection of a significant amount of new data that is
beyond the scope of the analysis.
Comment 120: One commenter cited a 2003 article by Dr. David
Sunding estimating that total economic losses from critical habitat
designations could reach $1 million per acre of habitat conserved.
Our Response: This impact estimate comes from a stylized example,
using a hypothetical scenario, included in the article to demonstrate
the types of costs that might result from critical habitat
designations. The example assumes a 1,000-unit housing development is
planned and that critical habitat requires land set-asides, reducing
the total number of homes that can be built to 900. It uses
hypothetical data about the value of those homes and resulting changes
in prices to estimate impacts. Aside from the fact that this example is
based on stylized information, rather than actual data, the conditions
of the example are not relevant to the western yellow-billed cuckoo. As
described in the economic analysis, land set-asides required through
section 7 consultation or as a result of the implementation of State
laws are unlikely to result solely from the designation of critical
habitat, given the western yellow-billed cuckoo's status as a listed
species and the presence of other listed species and critical habitat
designations.
Comment 121: Multiple commenters stated that a regulatory
flexibility analysis is required. One commenter expressed particular
concern that the proposed designation will affect operations on farms
and ranches in the State of New Mexico. The commenter noted that these
farms and ranches are typically run by families and are, therefore,
small businesses.
Our Response: Under the Regulatory Flexibility Act, Federal
agencies are required to evaluate only the potential incremental
impacts of a rulemaking on directly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the Agency is not likely to adversely modify critical
habitat. Therefore, only Federal action agencies are directly subject
to the specific regulatory requirement (avoiding destruction and
adverse modification) imposed by critical habitat designation; family
farms and ranches are not Federal action agencies and thus are not
directly regulated by this designation. Under these circumstances, it
is the Service's position that only Federal action agencies will be
directly regulated by this designation. Therefore, because Federal
agencies are not small entities, the Service certifies that the
proposed critical habitat rule will not have a significant economic
impact on a substantial number of small entities (see Required
Determinations).
Comment 122: One commenter stated that the economic analysis
misinterprets Executive Order 12866. The commenter noted that under
Executive Order 12866, a significant regulatory action is one that may
``have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.'' The commenter stated that meeting either of these
criteria can deem an action significant. The commenter then requests
that, as a result of the magnitude of possible impacts of public
perception described in the economic analysis, this rulemaking be
considered a significant action.
Our Response: The revised proposed rule and this final designation
was identified by the Office of Information and Regulatory Affairs
(OIRA) to be a significant regulatory action (see Required
Determinations). However, we have determined that the economic costs of
designating critical habitat for the western yellow-billed cuckoo are
likely to be limited to additional administrative effort to consider
adverse modification in consultation, and are unlikely to exceed
$74,000 in a given year. In addition, the analysis recognizes that the
designation of critical habitat may cause developers or landowners to
perceive that private lands will be subject to use restrictions or
litigation from third parties, resulting in costs. Data limitations
prevent the quantification of the possible incremental reduction in
property values. However, data on current land values suggest that even
if such costs occur, the rule is unlikely to meet the threshold for an
economically significant rule, with regard to costs, under E.O. 12866.
In sum, the economic analysis finds that the combined total of section
7 and possible perception-related effects is unlikely to exceed the
threshold for an economically significant rulemaking, as specified by
E.O. 12866.
Comment 123: One commenter stated that the Service should supply a
Statement of Energy Effects due to the potential for critical habitat
designation to affect permitting, operations, and maintenance of
facilities such as the Hayden Power Plant, the Craig Power Plant, and
other electric transmission facilities.
Our Response: Executive Order 13211 (Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The U.S. Office of Management and Budget (OMB) has
provided guidance for implementing this Executive order that outlines
nine outcomes that may constitute ``a significant adverse effect'' when
compared to not taking the
[[Page 20829]]
regulatory action under consideration. See OMB Memorandum 01-27,
Guidance for Implementing E.O. 13211 (July 13, 2001) (M-01-27), https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-27-Guidance-for-Implementing-E.O.-13211.pdf. These outcomes include, for example,
reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity, or
increases in the cost of energy production or distribution in excess of
one percent. The economic analysis finds that the incremental costs of
designating critical habitat for the western yellow-billed cuckoo are
likely to be limited to additional administrative effort to consider
adverse modification in consultation. Although some energy facilities,
such as those identified by the commenter, are located within the
vicinity of the proposed designation, the proposed critical habitat is
predominantly in remote areas with little energy supply infrastructure.
The types of incremental administrative costs described in the economic
analysis are therefore unlikely to result in the types of outcomes
described by OMB in Executive Order 13211.
Comment 124: One commenter stated that the economic analysis does
not satisfy the requirements of President Obama's February 2012
memorandum to the Secretary of the Interior (Presidential Memorandum
for the Secretary of the Interior--Proposed Revised Habitat for the
Spotted Owl: Minimizing Regulatory Burdens (February 28, 2012)).
Our Response: The President's memorandum primarily provided
direction specific to the consideration of economic impacts related to
the designation of critical habitat for the northern spotted owl.
However, it also directed the Service to take prompt steps to revise
its regulations such that the economic analysis would be completed and
made available for public comment at the time of publication of the
proposed rule to designate critical habitat. The Service issued a final
rule revising these regulations, as requested by the President, on
August 28, 2013 (78 FR 53058). For the western yellow-billed cuckoo,
the incremental effects memorandum and screening analysis
(collectively, the ``economic analysis'') were made available for
public comment at the time of the proposed critical habitat rule.
Comment 125: Multiple commenters expressed concern that the
economic analysis does not sufficiently address the potential benefits
of the designation of critical habitat. These commenters stated that
the benefits of critical habitat must be weighed against the economic
costs of the designation. One commenter estimated that wildlife
watchers contribute $24 million per year to the local economy along the
San Pedro River in Arizona, and another commenter cited a survey
showing that the total economic effect associated with wildlife-
watching activities in 2011 was $1.4 billion.
Our Response: Section 5 of the economic analysis explains that the
primary intended benefit of critical habitat designation for the
western yellow-billed cuckoo is to support the species' long-term
conservation. Critical habitat designation may also generate ancillary
benefits by protecting the primary constituent elements on which the
species depends. As a result, management actions undertaken to conserve
the species or its habitat may have coincident, positive social welfare
implications, such as increased recreational opportunities in a region
or improved property values on nearby parcels.
As described in section 3 of the economic analysis, incremental
changes in land management are unlikely to result from the designation
of critical habitat. Furthermore, all of the proposed critical habitat
is considered to be occupied by the species, thus the listing of the
species also serves as encouragement for wildlife watchers to visit
these areas. Therefore, in this instance, critical habitat designation
is unlikely to incrementally affect the types of ancillary benefits
described by the commenters.
Comment 126: Multiple commenters were concerned that the
designation may negatively affect residential and commercial
development or otherwise create economic uncertainty on private lands.
For example, several commenters stated that the economic analysis
should consider potential costs associated with the inability of
private property owners to use or sell land on which critical habitat
is designated. According to one commenter, development projects that
receive Federal funding or otherwise have a Federal nexus for
consultation could be delayed or cancelled. The commenter is
specifically concerned about impacts in five units of non-Federal,
private land included in the proposed designation. Other commenters
noted the importance of trust land sales and property tax revenue for
funding vital services such as public education, urban and wildland
firefighting, health services, road maintenance, emergency medical
services, and police protection. In particular, one commenter requested
that the economic analysis disaggregate costs to taxable lands and non-
taxable lands owned by local governments.
Our Response: Section 7 of the Act does not prohibit the use or
sale of land designated as critical habitat. If, during section 7
consultation, the Service finds that the proposed action is likely to
adversely modify critical habitat, Federal regulation and the Section 7
Consultation Handbook encourage the Service to identify reasonable and
prudent alternatives that can be implemented in a manner consistent
with the intended purpose of the action and that are economically and
technically feasible (see 50 CFR 402.14(h)(3) and p. xxii of the
Section 7 Consultation Handbook, respectively).
As described in the economic analysis, the designation of critical
habitat may cause developers or landowners to perceive that private
lands will be subject to use restrictions or litigation from third
parties, resulting in costs. Data limitations prevent the
quantification of the possible incremental reduction in property
values. However, data on current land values suggest that even if such
costs occur, the rule is unlikely to meet the threshold for an
economically significant rule, with regard to costs, under E.O. 12866.
Comment 127: One commenter noted that many development activities
and extractive uses that occur on private lands require Clean Water Act
permits and could therefore be subject to section 7 consultation for
the western yellow-billed cuckoo.
Our Response: The Clean Water Act requires the Army Corps of
Engineers to issue permits for certain activities, and thus the Corps
may serve as a Federal nexus for many activities occurring in western
yellow-billed cuckoo critical habitat. The economic analysis considers
the likelihood that activities on private lands may require Corps
permits in the development of its cost estimates. It uses the actual,
historical consultation rate for the western yellow-billed cuckoo since
its listing in 2014, which includes consultations on projects permitted
by the Corps.
Comment 128: Multiple commenters expressed concern about economic
impacts resulting from restrictions on operations at Lake Isabella.
According to one commenter, Lake Isabella provides over $38 million
annually in economic benefits related to flood risk management,
irrigation, hydropower, and recreation. Another commenter provided a
supplemental analysis of economic impacts related to storage
restrictions at Lake Isabella. This
[[Page 20830]]
commenter stated that storage restrictions similar to those temporarily
implemented for the benefit of the southwestern willow flycatcher would
result in net economic losses of $5.4 million to $14.7 million annually
over the next 20 years. Another commenter estimated up to a 50 percent
reduction in use of the U.S. Forest Service's nearby recreation sites,
including 10 developed recreation sites, 3 marinas, and 7 boat
launches, if the spillway height at Lake Isabella is not able to be
maintained.
Our Response: The areas associated Lake Isabella and reservoir
operations (reservoir area, flood easement areas) were either not
designated or floodplain areas removed from the designation (see
Comment 4). As a result, we do not anticipate requesting modifications
to reservoir operations due to the designation of critical habitat for
the western yellow-billed cuckoo and provided our analysis that current
spillway construction activities would not likely impact the species or
require additional conservation. Section 3 of the economic analysis
outlines the substantial baseline protections currently afforded the
western yellow-billed cuckoo throughout the proposed designation. These
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all
proposed critical habitat units, as well as overlap with habitat of
other, similar listed species and designated critical habitat. As a
result of these protections, the economic analysis concludes that
incremental impacts associated with section 7 consultations for the
western yellow-billed cuckoo are likely limited to additional
administrative effort.
Comment 129: Multiple commenters expressed concern that the
designation could adversely affect flood control activities. Commenters
stated that restrictions to farmers' ability to manage levee vegetation
and drainage operations may hinder flood control, resulting in economic
and public safety impacts. One commenter notes that the Army Corps of
Engineers represents a likely nexus for these activities.
Our Response: We do not anticipate that flood control operations or
management and maintenance of existing flood control facilities and
levees would be significantly impacted by designation of critical
habitat. Areas that have flood and erosion control structures such as
levees and other hardened features in place would not contain the
physical or biological features and have been textually excluded from
being considered as critical habitat. In addition, emergency actions to
avoid flooding or other uncontrolled circumstances that may cause loss
of life or property are allowed according to the emergency consultation
procedures identified under section 7 of the Act. Section 3 of the
economic analysis outlines the substantial baseline protections
currently afforded the western yellow-billed cuckoo throughout the
proposed designation. These baseline protections result from the
listing of the western yellow-billed cuckoo under the Act and the
presence of the species in all proposed critical habitat units, as well
as overlap with habitat of other, similar listed species and designated
critical habitat. As a result of these protections, the economic
analysis concludes that incremental impacts associated with section 7
consultations for the western yellow-billed cuckoo are likely limited
to additional administrative effort.
Comment 130: Multiple commenters expressed concern about the
potential impacts of the designation of critical habitat on water
management and water rights. Commenters noted specific concerns
regarding the following impacts and their costs: Reallocation of water
rights; restrictions on the use of unadjudicated water; restrictions on
river management and reservoir operations; restrictions on river and
habitat restoration projects; restrictions on drainage operations; and
the implications of such restrictions for local water supply and local
economies.
Our Response: As discussed under the Application of the ``Adverse
Modification'' Standard below, we consider ongoing water management
operations that are not within the agency's discretion to modify to be
part of the baseline. All areas identified as critical habitat where
ongoing water operations exist contain the physical or biological
features necessary to provide for the essential habitat needs of the
western yellow-billed cuckoo; therefore, we do not anticipate that the
continuation of existing water management operations would appreciably
diminish the value or quality of the critical habitat where they occur
and therefore ongoing water operations would not be significantly
modified as a result of the designation. Section 3 of the economic
analysis outlines the substantial baseline protections currently
afforded the western yellow-billed cuckoo throughout the proposed
designation. These baseline protections result from the listing of the
western yellow-billed cuckoo under the Act and the presence of the
species in all proposed critical habitat units, as well as overlap with
habitat of other, similar listed species and designated critical
habitat. As a result of these protections, the economic analysis
concludes that incremental impacts associated with section 7
consultations for the western yellow-billed cuckoo are likely limited
to additional administrative effort.
Comment 131: Multiple commenters expressed concern that the
economic analysis did not sufficiently evaluate potential impacts to
livestock grazing and agricultural activities. Several commenters
requested that the economic analysis explicitly consider impacts to
agricultural operations (including water use and use of pesticides),
particularly those that receive NRCS cost-share grants for projects
such as bank stabilization, irrigation, fencing, grazing management,
and weed control. The commenters expressed concern that the designation
of critical habitat could lead to a reduction in grazing or
agricultural output, or a reduction in the number of NRCS projects
undertaken. These impacts could, in turn, affect local ranching
communities and farm income.
Our Response: The Service does not anticipate requesting additional
modifications for livestock grazing or agricultural operations, or
cost-share projects undertaken with agencies such as NRCS, as a result
of the designation of critical habitat for the western yellow-billed
cuckoo. Section 3 of the economic analysis outlines the substantial
baseline protections currently afforded the western yellow-billed
cuckoo throughout the proposed designation. These baseline protections
result from the listing of the western yellow-billed cuckoo under the
Act and the presence of the species in all proposed critical habitat
units, as well as overlap with habitat of other, similar listed species
and designated critical habitat. As a result of these protections, the
economic analysis concludes that incremental impacts associated with
section 7 consultations for the western yellow-billed cuckoo are likely
limited to additional administrative effort.
However, the Service recognizes the potential for landowners'
perceptions of the Act to influence land use decisions, including
decisions to participate in Federal programs such as those managed by
NRCS. Several factors can influence the magnitude of perception-related
effects, including the community's experience with the Act and
understanding of the degree to which future section 7 consultations
could delay or affect land use activities. Information is not available
to predict the impact of the designation of critical habitat on
landowners' decisions to pursue cost-share projects with NRCS in
[[Page 20831]]
the future. However, incremental effects due to the designation of
critical habitat for the western yellow-billed cuckoo are likely to be
reduced due to the species being listed.
Comment 132: Multiple commenters expressed concern that the
designation of critical habitat for the western yellow-billed cuckoo
could affect agricultural operations through restrictions on the use of
irrigation facilities or pesticides, particularly those registered
under FIFRA.
Our Response: The Service does not anticipate requesting additional
modifications for agricultural operations, including irrigation or
pesticide use, as a result of the designation of critical habitat for
the western yellow-billed cuckoo. Section 3 of the economic analysis
outlines the substantial baseline protections currently afforded the
western yellow-billed cuckoo throughout the proposed designation. These
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all
proposed critical habitat units, as well as overlap with habitat of
other, similar listed species and designated critical habitat. As a
result of these protections, the economic analysis concludes that
incremental impacts associated with section 7 consultations for the
western yellow-billed cuckoo are likely limited to additional
administrative effort.
Comment 133: Multiple commenters expressed concern that the
designation of critical habitat could negatively affect mining
activities, including gravel pit operations and copper mining in
Arizona.
Our Response: Because the western yellow-billed cuckoo is listed as
threatened and all the units are occupied during the breeding season
and habitat would need to be protected during the nonbreeding season,
the majority of actions necessary to conserve the species would be
required based on the listing of the western yellow-billed cuckoo. As a
result of the species being listed, the economic analysis concludes
that incremental impacts of critical habitat associated with section 7
consultations for mining operations for the western yellow-billed
cuckoo are likely limited to additional administrative effort of
determining if adverse modification may occur. Because the commenters
were making general statements and not specific to individual mining
projects or actions, we are unable to determine what measures mining
interests may need to undertake to avoid adverse modification if
necessary.
Comment 134: Multiple commenters expressed concern about impacts to
recreational activities and facilities, such as parks. In particular,
one commenter expressed concern that the designation could limit access
to public lands. Other commenters expressed concern that the
designation could limit water use, which would affect recreation.
Another commenter stated that increased Federal oversight could hinder
efforts to properly manage and maintain public safety at local parks.
Another commenter expressed concern that the designation could restrict
future trail developments.
Our Response: Because the western yellow-billed cuckoo is listed as
threatened, all the units are occupied during the breeding season and
habitat would need to be protected during the nonbreeding season, the
majority of actions necessary to conserve the species would be required
based on the listing of the western yellow-billed cuckoo. Exhibit A-1
of the economic analysis, which displays the planned projects assumed
by the economic analysis to require formal consultation, includes
multiple consultations for recreational activities. Activities at
private or municipal recreational facilities, such as town parks, will
only require section 7 consultation if those activities have a Federal
nexus, such as Federal funding.
For activities that do have a Federal nexus for section 7
consultation, the Service does not anticipate conservation measures
above and beyond those needed for conserving the listed western yellow-
billed cuckoo. Section 3 of the economic analysis outlines the
substantial baseline protections currently afforded the western yellow-
billed cuckoo throughout the proposed designation. These baseline
protections result from the listing of the western yellow-billed cuckoo
under the Act and the presence of the species in all proposed critical
habitat units, as well as overlap with habitat of other, similar listed
species and designated critical habitat. As a result of these
protections, the economic analysis concludes that incremental impacts
associated with section 7 consultations for the western yellow-billed
cuckoo are likely limited to additional administrative effort.
Comment 135: Multiple commenters expressed concern that the
designation of critical habitat could negatively affect transportation
activities and road infrastructure. One commenter further noted that
road maintenance is necessary to maintain access to public and private
lands; as a result, impacts stemming from the designation of critical
habitat have the potential to severely limit public access to public
lands.
Our Response: Because the western yellow-billed cuckoo is listed as
threatened, and all the units are occupied during the breeding season
and habitat would need to be protected during the nonbreeding season,
the majority of actions necessary to conserve the species would be
required based on the listing of the western yellow-billed cuckoo. For
activities that do have a Federal nexus for section 7 consultation, the
Service does not anticipate conservation measures above and beyond
those needed for conserving the listed western yellow-billed cuckoo.
Section 3 of the economic analysis outlines the substantial baseline
protections currently afforded the western yellow-billed cuckoo
throughout the proposed designation. These baseline protections result
from the listing of the western yellow-billed cuckoo under the Act and
the presence of the species in all proposed critical habitat units, as
well as overlap with habitat of other, similar listed species and
designated critical habitat. As a result of these protections, the
economic analysis concludes that incremental impacts associated with
section 7 consultations for the western yellow-billed cuckoo are likely
limited to additional administrative effort.
Comment 136: Multiple commenters expressed concern about economic
impacts to operations on military installations. In particular, one
commenter expressed concern that the designation could result in the
closure or restriction of operations on two military installations near
Yuma, Arizona. Multiple commenters expressed concern about impacts to
Fort Huachuca in Cochise County, Arizona, noting that Fort Huachuca has
an approved integrated natural resources management plan (INRMP) that
provides conservation benefit to the western yellow-billed cuckoo.
Another commenter expressed particular concern that the designation
could affect operations on Fort Huachuca's Buffalo Soldier Electronic
Testing Range.
Our Response: No military lands or training areas were included in
the revised proposed rule or are included in this final designation. In
the timeframe between the proposed rule and this final designation, we
had discussions with the military installations at Yuma Proving Grounds
and Fort Huachuca regarding the designation of critical habitat. Both
military installations requested exclusion from the designation based
on national security reasons. We reviewed the request of
[[Page 20832]]
Yuma Proving Grounds and found that exclusion was not necessary for the
area requested by the Yuma Proving Grounds because the actions
described by the installation (overflight of critical habitat areas)
would not physically impact habitat for the western yellow-billed
cuckoo. Although the actions may require section 7 consultation to
consider the effects to western yellow-billed cuckoos, they would not
require consideration of adverse effects to critical habitat as
overflights would have no habitat-based effects. In addition, this area
has been excluded based on the LCR MSCP (see Exclusions, Private or
Other Non-Federal Conservation Plans Related to Permits Under Section
10 of the Act).
Fort Huachuca also requested exclusion of critical habitat on areas
outside the installation's jurisdiction. The Fort suggested that the
base's groundwater may be impacted and result in reduced operational
capacity in the future. The Fort is aware of our position that
groundwater impacts will not occur as a result of the designation of
critical habitat and the designation will not impact the Army's
military operations. We reviewed their request and determined that the
installation did not provide support for such an exclusion (see
Exclusions, Exclusions Based on Impacts on National Security and
Homeland Security).
Comment 137: One commenter expressed concern that the economic
analysis does not include costs to reinitiate consultations for several
USFS projects and activities in proposed Unit 64 (CA-2) at Lake
Isabella, California. These consultations include travel management in
the Sequoia National Forest, recreation management at Lake Isabella,
and the Hafenfeld Livestock Grazing Permit. In addition, the commenter
noted that a new consultation would likely be required for any
revisions to the Sequoia National Forest Land Management Plan. A public
comment period for the Revised Draft Land Management Plan for the
Sequoia National Forest (USFS 2019, entire) closed in September 2019.
Our Response: The Service appreciates the new information provided
by the commenter. As described in our revised proposed rule, we did not
identify areas associated with operations and management of Lake
Isabella as critical habitat. In addition, we excluded two additional
areas that provide conservation for the western yellow-billed cuckoo
(see Exclusions, Private or Other Non-Federal Conservation Plans or
Agreements and Partnerships, in General). Because these areas are not
designated as critical habitat, there are no economic costs of re-
initiation for critical habitat. For the remaining areas, section 3 of
the economic analysis forecasts future section 7 consultation activity
associated with the proposed designation based on the historical
consultation activity resulting from the listing of the western yellow-
billed cuckoo in 2014. Exhibit A-2 presents the resulting expected
annual consultation rates by unit. Importantly, the analysis concludes
that the incremental costs resulting from the designation of critical
habitat are likely to be limited to administrative costs of addressing
critical habitat in consultation, and are unlikely to exceed the
threshold for an economically significant rulemaking. To our knowledge,
the USFS has yet to complete its land management plan.
Comment 138: Multiple commenters expressed concern that the
designation of critical habitat could negatively affect habitat
restoration projects, including management programs designed to restore
riparian corridors that have been overtaken by tamarisk. One commenter
cites as an example an ongoing project delayed by the presence of
critical habitat for another listed species in the Upper San Pedro
River watershed.
Our Response: Because the western yellow-billed cuckoo is listed as
threatened, all the units are occupied during the breeding season, and
habitat would need to be protected during the nonbreeding season, the
majority of actions necessary to conserve the species would be required
based on the listing of the western yellow-billed cuckoo. For
activities that do have a Federal nexus for section 7 consultation, the
Service does not anticipate conservation measures above and beyond
those needed for conserving the listed western yellow-billed cuckoo.
Section 3 of the economic analysis outlines the substantial baseline
protections currently afforded the western yellow-billed cuckoo
throughout the proposed designation. These baseline protections result
from the listing of the western yellow-billed cuckoo under the Act and
the presence of the species in all proposed critical habitat units, as
well as overlap with habitat of other, similar listed species and
designated critical habitat. As a result of these protections, the
economic analysis concludes that incremental impacts associated with
section 7 consultations for the western yellow-billed cuckoo are likely
limited to additional administrative effort.
In addition, because all proposed critical habitat units for the
western yellow-billed cuckoo are considered occupied by the species,
all projects with a Federal nexus will be required to consult with the
Service under section 7 of the Act regardless of whether critical
habitat is designated. As a result, the designation of critical habitat
for the western yellow-billed cuckoo is unlikely to result in
incremental delays to projects.
Comment 139: Several commenters expressed concern that baseline
protections for the western yellow-billed cuckoo, including several
existing HCPs and the presence of southwestern willow flycatcher
critical habitat, do not provide sufficient protection to the western
yellow-billed cuckoo and its habitat. In particular, one commenter
disagreed with the assumption used in the economic analysis that
impacts have already occurred due to the listing of the western yellow-
billed cuckoo or the presence of other listed species. The commenter
stated that, if this assumption were true, the designation of critical
habitat for the western yellow-billed cuckoo would not be warranted. In
addition, one commenter stated that environmental reviews for livestock
grazing on Federal allotments have been reduced since the proposed rule
was published, weakening baseline protection.
Our Response: Guidelines issued by OMB for the economic analysis of
regulations direct Federal agencies to measure the costs and benefits
of a regulatory action against a baseline (i.e., costs and benefits
that are ``incremental'' to the baseline). OMB defines the baseline as
the ``best assessment of the way the world would look absent the
proposed action.'' In the case of critical habitat designation for the
western yellow-billed cuckoo, the baseline includes the listing of the
species, as well as protections already afforded its habitat as a
result of the presence of other listed species, such as the
southwestern willow flycatcher and the least Bell's vireo. Because all
proposed critical habitat units for the western yellow-billed cuckoo
are considered occupied by the species, all projects with a Federal
nexus will be subject to section 7 requirements regardless of whether
critical habitat is designated. In addition, the Service anticipates
that, except in cases that cannot be predicted at this time, project
modifications recommended to avoid adverse modification of western
yellow-billed cuckoo habitat will likely be the same as those needed to
avoid jeopardy to the species. As a result, the economic analysis finds
that the section 7-related costs of designating critical habitat for
the western yellow-billed cuckoo are likely to be limited to additional
[[Page 20833]]
administrative effort to consider adverse modification in consultation.
Comment 140: Multiple commenters noted that many existing HCPs
offer baseline protection to the species. One commenter expressed
concern that the designation of critical habitat could impose
substantial economic burden on landowners participating in such HCPs.
In addition, the commenter expressed concern that the designation of
critical habitat could create a disincentive for landowners to develop
new HCPs and thus negatively affect regional conservation.
Our Response: HCPs, particularly those developed at a regional
scale, are valuable tools for conservation. The designation of critical
habitat for the western yellow-billed cuckoo may, in some cases,
require re-initiation of past consultations, including consultations on
HCPs. However, as described in section 3 of the economic analysis,
incremental costs associated with section 7 consultations will likely
be limited to additional administrative costs following the designation
of critical habitat. Incremental impacts to HCP participants beyond
third-party administrative costs of consultation are not expected, and
we have excluded certain HCP areas from the final designation (see
Exclusions, Private or Other Non-Federal Conservation Plans Related to
Permits Under Section 10 of the Act).
Comment 141: Multiple commenters expressed concern about potential
impacts to utility operations. One commenter expressed concern that the
designation of critical habitat within transmission and distribution
corridors could hinder maintenance and operation activities. Such
activities are required by the Federal Energy Regulatory Commission
(FERC) to maintain equipment integrity, mitigate potential public
safety hazards, and comply with vegetation management standards.
Multiple commenters noted that non-compliance can result in penalties
up to $1,000,000 per incident per day. Another commenter noted that
impacts to grid reliability represent a significant public health and
safety, as well as economic, concern.
Our Response: Because the western yellow-billed cuckoo is listed as
threatened, all the units are occupied during the breeding season and
habitat would need to be protected during the nonbreeding season, the
majority of actions necessary to conserve the species would be required
based on the listing of the western yellow-billed cuckoo. For
activities that do have a Federal nexus for section 7 consultation, the
Service does not anticipate conservation measures above and beyond
those needed for conserving the listed western yellow-billed cuckoo.
Section 3 of the economic analysis outlines the substantial baseline
protections currently afforded the western yellow-billed cuckoo
throughout the proposed designation. These baseline protections result
from the listing of the western yellow-billed cuckoo under the Act and
the presence of the species in all proposed critical habitat units, as
well as overlap with habitat of other, similar listed species and
designated critical habitat. As a result of these protections, the
economic analysis concludes that incremental impacts associated with
section 7 consultations for the western yellow-billed cuckoo are likely
limited to additional administrative effort.
Comment 142: Several commenters were in favor of conservation
efforts to protect the western yellow-billed cuckoo, yet they expressed
concern that critical habitat designation would burden State regulatory
agencies and restrict ranching, farming, or other activities on private
lands. Other commenters were concerned about the level of oversight the
Service has in designating critical habitat on privately owned land.
Our Response: We are required to designate critical habitat for a
federally listed species if it is determined to be both prudent and
determinable, as is the case for the western yellow-billed cuckoo. We
further note that we are currently under court order to finalize
critical habitat for the western yellow-billed cuckoo.
In regard to State and private landowner burden, critical habitat
designations do not constitute or create a regulatory burden by
themselves, in terms of regulations on private landowners carrying out
private activities, but in certain areas they might trigger additional
State regulatory reviews and other requirements. Our economic analysis
did not find that there would be significant impacts for third party
entities (e.g., States private actions). When a third party action
requires Federal approval, permit, or is federally funded, the critical
habitat designation might impose a Federal regulatory burden for
private landowners, but consultation effort concerning the critical
habitat or species would be the responsibility of the Federal entity
involved, not the private landowner; absent Federal approval, permits,
or funding, the designation should not affect farming, ranching, or
other activities on private lands.
Comment 143: Multiple commenters stated they have determined that
the economic analysis is flawed in its approach and needs to be re-done
in order to consider the unanalyzed economic impacts to the city of
Sierra Vista, AZ, due to COVID-19. Other commenters stated the Service
failed to analyze the economic impact on private landowners and the
State of Arizona. Other commenters, including private landowners,
stated that the Service should consider the economic benefits of
birdwatching and recreational activities in riparian areas, and
supported the enhanced property value of areas with more conservation
focus. Other commenters expressed concerns that the economic analysis
of the proposed critical habitat designation has not yet been released
for public review and comment, which is required before proposed
critical habitat can be finalized.
Our Response: For both the 2014 proposed critical habitat and the
2020 revised proposed critical habitat, we completed economic analyses
to examine the incremental costs associated with the designation of
critical habitat. The economic analyses did not identify significant
impacts, and the two local government entities did not provide economic
information regarding any of the activities identified. These analyses
were available to the public as part of the docket for each publication
in the Federal Register. Critical habitat does not restrict private
landowner access to their property and would only need to be considered
if Federal agency funding or permitting for an activity is needed.
Because the areas are considered occupied, the majority of costs are
not associated with the designation, but with listing of the species as
threatened. If Federal funding is involved, the agency providing the
funding is the party responsible for meeting obligations of consulting
on projects on private lands. We have considered and applied the best
available scientific and commercial information in determining the
economic impacts associated with designating critical habitat. Section
5 of the economic analysis explains that the primary intended benefit
of critical habitat designation for the western yellow-billed cuckoo is
to support the species' long-term conservation. Critical habitat
designation may also generate ancillary benefits by protecting the
primary constituent elements on which the species depends. As a result,
management actions undertaken to conserve the species or its habitat
may have coincident, positive social welfare implications, such as
increased recreational opportunities in a region or
[[Page 20834]]
improved property values on nearby parcels.
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).
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring an endangered
or threatened species to the point at which the measures provided
pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such 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. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will consider
unoccupied areas to be essential only where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species (50 CFR 424.12(b)(2)).
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will
[[Page 20835]]
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, HCPs, or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
We derive the specific physical or biological features required for
the western yellow-billed cuckoo from studies of this species' habitat,
ecology, and life history as described below. Additional information
can be found in the proposed and final listing rules published in the
Federal Register on October 3, 2013 (78 FR 61621), and October 3, 2014
(79 FR 59992), respectively. The physical or biological features
identified here focus primarily on breeding habitat and secondarily on
foraging habitat because most of the habitat relationship research data
derive from studies of these activities. Much less is known about
migration, stop-over, or dispersal habitat within the breeding range;
however, for these purposes, western yellow-billed cuckoos use a
variety of habitats that may or may not be used for breeding. As a
result, we do not think that habitat for these purposes is limiting,
and we have not specifically identified areas for these purposes in our
designation. As stated above, the species' use of an area for breeding
purposes depends on food availability and habitat conditions. If those
conditions are not adequate (i.e., prey not present, environmental
conditions not favorable), the species may still use the area for the
other purposes identified above. Although the wintering and nesting
habitat for the western yellow-billed cuckoo that occurs outside of the
United States was not considered for critical habitat designation, some
information on breeding, migration, and wintering habitat outside the
United States is provided. We have determined that the following
physical or biological features are essential to the conservation of
the western yellow-billed cuckoo.
Space for Individual and Population Growth and for Normal Behavior
General breeding (nesting) habitat conditions. The western yellow-
billed cuckoo occurs and breeds during the breeding season (generally
June through September--May breeding does occur but is less common) in
a subset of its historical range in the western United States. The
western yellow-billed cuckoo primarily uses nesting sites in riparian
habitat where conditions are typically cooler and more humid than in
the surrounding environment (Gaines and Laymon 1984, p. 75; Laymon
1998, pp. 11-12; Corman and Magill 2000, p. 16). In the Southwest, the
western yellow-billed cuckoo also nests in more arid-adapted habitat in
drainages where conditions are also cooler and more humid than the
surrounding environment (Griffin 2015, entire; MacFarland and Horst
2015, entire; MacFarland and Horst 2017, entire; Corson 2018, entire;
Drost et al. 2020, entire). Riparian habitat characteristics, such as
dominant tree species, size and shape of habitat patches, tree canopy
structure, tree age, vegetation height, and vegetation density, are
important parameters of western yellow-billed cuckoo breeding habitat.
Older studies were geographically limited in their scope but
nevertheless established a suite of habitat characteristics that became
the archetype for western yellow-billed cuckoo breeding habitat.
However, habitat conditions across the DPS range vary considerably, and
more recent investigations that included other areas within the western
yellow-billed cuckoo's breeding range found that large areas of
riparian woodland vegetation are not the only areas used by the species
for nesting. We describe both the rangewide and southwestern breeding
habitat below with particular emphasis on describing the southwestern
habitat, because it is less well known as providing habitat for the
western yellow-billed cuckoo.
Rangewide breeding habitat. Rangewide breeding habitat across the
DPS exists primarily in riparian areas along low-gradient streams, with
patches of cottonwood (Populus spp.) and willow (Salix spp.) riparian
vegetation with an overstory and understory component. Patches of trees
interspersed with openings often aggregate into large expanses of
habitat. The vegetation is often characterized as
[[Page 20836]]
riparian woodlands. More specifically, rangewide breeding habitat is
characterized as having broad floodplains and open riverine valleys
that provide wide floodplain conditions. The general habitat
characteristics are areas that are often greater than 325 feet (ft)
(100 meter (m)) wide but may be narrow in parts of the floodplain,
contain low-gradient rivers and streams (surface slope usually less
than 3 percent), are part of floodplains created where rivers and
streams enter upstream portions of reservoirs or other water
impoundments, or are in areas associated with irrigated upland terraces
adjacent to water courses or riparian floodplains. The habitat is
usually dominated by willow or cottonwood, but sometimes by other
riparian species. The habitat has above-average canopy closure (greater
than 70 percent), and a cooler, more humid environment than the
surrounding riparian and upland habitats. The plant species most often
associated with rangewide breeding habitat are identified above (see
General Breeding (nesting) Habitat Conditions), and each may be
dominant depending on location. These areas contain the moist
conditions that support riparian plant communities made up of overstory
and understory components that provide breeding sites, shelter, cover,
and food resources for the western yellow-billed cuckoo. However, all
foraging needs may not be provided within areas of critical habitat.
Western yellow-billed cuckoo use rangewide breeding habitat as
described above throughout the DPS, including where it occurs in the
Southwest and the states of Sonora and Sinaloa, Mexico.
In addition to cottonwood and willow, riparian vegetation may
include tree species other than cottonwood and willow, including but
not limited to boxelder (Acer negundo); ash (Fraxinus spp.); walnut
(Juglans spp.); and sycamore (Platanus spp.) (Gaines 1974, pp. 7-9;
Gaines and Laymon 1984, pp. 59-66; Groschupf 1987 pp. 5, 8-11, 16-18;
Laymon and Halterman 1989, pp. 274-275; Corman and Magill 2000, pp. 5,
10, 11, 15, 16; Dettling and Howell 2011a, pp. 27-28). In California,
the species is typically found in riparian woodland areas along low-
gradient streams with patches of cottonwood (Populus spp.) and willow
(Salix spp.) riparian vegetation with an overstory and understory
component of other tree species, including but not limited to boxelder
(Acer negundo); Oregon ash (Fraxinus latifolia); California black
walnut (Juglans californica); California sycamore (Platanus racemosa);
Fremont cottonwood (Populus fremontii); and valley oak (Quercus lobata)
(Gaines 1974, pp. 7-9; Gaines and Laymon 1984, pp. 59-66; Laymon and
Halterman 1989, pp. 274-275; Dettling and Howell 2011a, pp. 27-28).
Western yellow-billed cuckoos have also been found nesting in
orchards adjacent to riparian habitat during the breeding season
(Laymon 1980, pp. 6-8; Laymon 1998, p. 5). Five pairs of western
yellow-billed cuckoos were found nesting along the Sacramento River in
a poorly groomed English walnut orchard that provided numerous densely
foliaged horizontal branches on which western yellow-billed cuckoos
built their nests (Laymon 1980, pp. 6-8). These western yellow-billed
cuckoos that nested in the orchard did not forage there, but flew
across the river to forage in riparian habitat. Kingsley (1985, pp.
245-249; 1989, p. 142) described western yellow-billed cuckoos as being
abundant in the pecan groves in Green Valley and Sahuarita, Arizona,
with an estimated density of one nesting pair per 10 ac (4 ha). We
consider these agricultural nesting sites to be the exception rather
than the preferred nesting habitat for the species due to the paucity
of reports identifying such nesting. In mapping the boundaries of the
critical habitat, we avoided identifying agricultural lands within the
designation. Any agricultural lands inadvertently within the boundary
of the designation would not be considered critical habitat because
those areas do not contain the physical or biological features.
Southwestern breeding habitat. In parts of the Southwestern United
States and the states of Sonora and Sinaloa, Mexico, western yellow-
billed cuckoo breeding habitat is more variable than in the rest of its
range. Southwestern breeding habitat, found primarily in Arizona and
New Mexico, occurs within or along perennial, intermittent, and
ephemeral drainages in montane canyons, foothills, bajadas, desert
floodplains, and arroyos. Breeding habitat may include woody side
drainages, terraces, and hillsides immediately adjacent to the main
drainage bottom below 6,000 ft elevation (1,829 m). In areas where
water is especially limited, but is nonetheless productive in terms of
food and cover for western yellow-billed cuckoos, breeding habitat
often consists of narrow, patchy, and/or sparsely vegetated drainages
surrounded by arid-adapted vegetation. Due to more arid conditions,
southwestern breeding habitat contains a greater proportion of
xeroriparian and nonriparian tree species than elsewhere in the DPS.
Riparian and xeroriparian trees in these ecosystems may even be more
sparsely distributed and less prevalent than nonriparian trees.
Southwestern breeding habitat may be less than 325 ft (100 m) wide
due to narrow canyons or limited water availability that do not allow
for development of wide reaches of habitat. Southwestern breeding
habitat is often but not always 200 ac (81 ha) or more in size, and may
consist of a series of smaller tree and large shrub patches separated
by openings. Occurring in both low- and high-gradient drainages, slope
does not appear to be a factor in whether or not western yellow-billed
cuckoos select these areas for nesting. Canopy closure is variable, and
where trees are sparsely scattered, it may be dense only at the nest
tree or small grove including the nest tree. The North American Monsoon
brings high humidity and rainfall to some of these habitats especially
in the ephemeral drainages in southeastern Arizona where winters are
mild and warm, wet summers are associated with the monsoon and other
tropical weather events (Wallace et al. 2013, entire; Erfani and
Mitchell 2014, pp. 13096-13097). The more arid ephemeral drainages may
not flow during summer monsoonal storms, but provide moisture for plant
growth and insect production.
Riparian and xeroriparian drainages in southwestern breeding
habitat bisect other habitats and often contain a mix of habitats
including but not limited to Madrean evergreen woodland (Madrean
encinal and Madrean pinyon-juniper), desert grassland (including semi-
desert grassland), or desert scrub (including mesquite (Prosopis, spp.)
upland and semi-desert scrub) (NatureServe 2016, entire; Drost et al.
2020, entire). To simplify, we refer to these habitats as riparian,
xeroriparian (including mesquite bosque), Madrean evergreen woodland,
desert grassland, and desert scrub. More than one vegetation type
within and immediately adjacent to the drainage may contribute toward
nesting habitat. For example, mesquite, with deeper roots that can
reach the water table, often flanks the upland perimeter of more water-
dependent cottonwood-willow riparian habitat. In addition to the
riparian trees found across the species' range, the vegetation making
up the breeding habitat of the western yellow-billed cuckoo in some
areas, especially in the more arid Southwest, includes some other
native and nonnative xeroriparian and non-riparian trees and large
shrubs, such as, but not limited to: Mesquite, hackberry (Celtis
reticulata and C. ehrenbergiana), soapberry (Sapindus saponaria), oak
(Quercus spp.), acacia (Acacia spp.,
[[Page 20837]]
Senegalia greggi), mimosa (Mimosa spp.), greythorn (Ziziphus
obtusifolia), desert willow (Chilopsis linearis), juniper (Juniperus
spp.), pine (Pinus spp.), alder (Alnus rhombifolia and A.
oblongifolia), wolfberry (Lycium spp.), Russian olive (Elaeagnus
angustifolia), and tamarisk (Tamarix spp.) (Groschupf 1987 pp. 5, 8-11,
16-18; Corman and Magill 2000, pp. 10, 15, 16; Corson 2018, pp. 5, 6-
20; Sferra et al. 2019, p. 3). Of these species, the nonriparian trees
and large shrubs include oak, juniper, acacia, greythorn, mimosa, and
mesquite (upland) (NatureServe 2013, pp. 11-18, 42-113, 132-140).
Drainage bottoms in these habitats consist of riparian, xeroriparian
and nonriparian trees and may be dominated by cottonwood, willow,
mesquite, hackberry, ash, sycamore, walnut, or oak (Sogge et al. 2008,
pp. 148-149; Johnson et al. 2012, pp. 20-21; WestLand Resources, Inc.
2019, entire; Villarreal et al. 2014, p. 58; Griffin 2015, pp. 17-25;
MacFarland and Horst 2015, pp. iiii, 2, 5-7; Corson 2018, entire;
Sferra et al. 2019, p.3; Drost et al. 2020, entire).
Occupied habitat within a single drainage may include both
rangewide breeding habitat and southwestern breeding habitat,
transitioning from large stands of gallery riparian forest to mesquite
woodland, or narrow or patchy stands of riparian or xeroriparian
habitat. These perennial and intermittent drainages include but are not
limited to parts of the Gila River, upper Verde River, Blue River,
Eagle Creek, Tonto Creek, San Francisco River, Aravaipa Creek, San
Pedro River, lower Cienega Creek, Mimbres River, and the Rio Grande
(Corman and Magill 2000, pp. 37-48; Sogge et al. 2008, pp. 148-149;
Johnson et al. 2012, pp. 20-21; Arizona Game and Fish Department (AGFD)
2018, entire; Cornell Lab of Ornithology 2020 (eBird data)).
In more intermittent and ephemeral drainages that bisect Madrean
evergreen woodlands, desert scrub, and desert grasslands in montane
canyons, foothills, bajadas, and desert floodplains of southeastern
Arizona, riparian and xeroriparian trees and large shrubs may be
present, but are often sparsely distributed or in a narrow band along
the drainage bottom. The hillsides immediately adjacent to the tree-
lined drainages range from dense woodlands to sparsely treed savannahs
with a variety of grasses, contributing toward foraging and breeding
habitat for the western yellow-billed cuckoo. Tree and large shrub
species such as mesquite, hackberry, acacia, mimosa, and greythorn are
present in desert scrub and desert grassland habitats (NatureServe
2013, pp. 88, 134). Madrean evergreen woodland habitat contains oak,
mesquite, juniper, acacia, and hackberry (Brown 1994, pp. 59-62) in
southeastern Arizona and southwestern New Mexico's mountain ranges, and
resembles habitat found in the Sierra Madre Occidental of Mexico. In
southeastern Arizona, occupied southwestern breeding habitat that
contains a more arid mix of species is found in drainages in the Santa
Catalina Mountains, Rincon Mountains, Santa Rita Mountains, Patagonia
Mountains, Huachuca Mountains, Pajarito/Atascosa Mountains, Whetstone
Mountains, Dragoon Mountains, and Buenos Aires National Wildlife
Refuge, among others (Corman and Magill 2000, pp. 37-48; American
Birding Association 2014, entire; Griffin 2015, pp. 17-25; MacFarland
and Horst 2015, pp. i-iii, 2, 5-7, 9-12; Tucson Audubon Society 2015,
p. 44; Arizona Game and Fish Department 2018, entire; Dillon et al.
2018, pp. 31-33; White et al. 2018, pp. 26-27; Rorabaugh 2019, in litt,
entire; Sferra et al. 2019, pp. 3-6, 9-11; Corson 2018, entire;
Westland Resources, Inc. 2019, entire; Cornell Lab of Ornithology 2020
(eBird data; Drost et al. 2020, entire). In Sonora and Sinaloa, Mexico,
western yellow-billed cuckoos also breed in similar riparian habitat
bisecting mesquite-dominated woodlands, and semi-desert and desert
scrub and grassland habitats (Russell and Monson 1998, p. 131).
Remnant mesquite bosques, historically extensive throughout the
Southwest along major rivers, still occupy some wide floodplains of the
lower Colorado River, Gila, Salt, San Pedro, Santa Cruz, and Rio Grande
Rivers in Arizona and New Mexico. In Sonora, Mexico, mesquite bosques
where western yellow-billed cuckoos have nested have also been greatly
reduced (Russell and Monson 1988, p. 131). For example, Arizona's upper
San Pedro River contains extensive reaches of mesquite bosque breeding
habitat adjacent to the cottonwood and willow dominated breeding
habitat in a broad floodplain.
Arid conditions and water management in the Southwest often
influence stream flows into and downstream of reservoirs, limiting
riparian vegetation regeneration, growth, and survival. In Arizona and
New Mexico, narrow or patchy riparian breeding habitat can be found
adjacent to heavily managed floodplains (such as areas within Caballo
Reservoir and the Lower Rio Grande for example (White et al. 2018, pp.
26-27)). Hydrologically perennial systems become intermittent or
ephemeral due to reservoir management or water delivery requirements.
For example, water abundance at Caballo Reservoir and downstream on the
Lower Rio Grande varies from year-to-year, and timing of release may
not occur prior to or throughout the western yellow-billed cuckoo
breeding season. As a result, riparian (including xeroriparian) habitat
may persist only as narrow bands or scattered patches along the
bankline or as small in-channel islands, or sections of undisturbed
native willows within the reservoir. Habitat within these areas may be
as small as approximately 30 ac (12 ha) and is typically composed of
either willow, tamarisk, or a mix of the two (White et al. 2018, pp.
26-27). Adjacent habitat may include mowed nonnative vegetation
typically less than 1 ft (0.3 m) tall or higher terraces within the
floodplain with mesquite or other drought-tolerant vegetation.
In a study on the Coronado National Forest, Arizona, Madrean
evergreen woodland drainages used by western yellow-billed cuckoos were
dominated by oak trees, often with mesquite trees flanking the riparian
strip (MacFarland and Horst 2015, pp. 1, 7). The drainages often merge
into the surrounding vegetation of juniper. In the wettest reaches of
the drainages, the oaks are interspersed with Arizona sycamore,
hackberry, willows, occasionally cottonwoods, and a few other
infrequently occurring species such as Arizona ash and Arizona walnut
(MacFarland and Horst 2015, p. 1). Total canopy cover in occupied
habitat was about 52 percent, with oaks as the predominant overstory
species recorded (overall average 35 percent), followed by mesquite (20
percent), and juniper (16 percent). The most frequent riparian
overstory species were sycamore (3 percent) followed by hackberry (5
percent) and willow (2 percent). The average height of the most
prevalent overstory tree species at each point recorded was 20 ft (6.1
m). Habitat occupied during the breeding season (which we also refer to
as territories even though western yellow-billed cuckoos may not defend
habitat (Hughes 2015, p. 3)) tended to have a higher percentage of
mesquites in the community composition, while unoccupied survey points
had a higher percentage of junipers (MacFarland and Horst 2015, pp. 9-
10). Western yellow-billed cuckoo detections ranged in elevation from
3,564 to 5,480 ft (1,086 to 1,670 m) (MacFarland and Horst 2015, p.
10).
Few western yellow-billed cuckoo detection records in southwestern
New Mexico exist between 1998 and 2014 in Madrean evergreen woodland
and
[[Page 20838]]
mesquite woodlands (including other thorn trees and shrubs) habitat
similar to southeastern Arizona (Cornell Lab of Ornithology 2020 (eBird
data)). Much of the southwestern New Mexico habitat is privately owned
and is not visited as frequently by birders as is southeastern Arizona.
No protocol surveys have been conducted in these areas. Based on the
best available survey information, we have not identified confirmed
breeding or breeding occupancy in Madrean evergreen woodland and
mesquite woodlands in New Mexico. Therefore, no critical habitat is
designated in similar southwestern habitat in southwestern New Mexico.
Tamarisk. Within Southwestern breeding habitat, tamarisk, also
known as salt cedar, is a common nonnative shrubby tree found occurring
along or within stream courses in western yellow-billed cuckoo riparian
habitat. Tamarisk, as a component of wildlife habitat, is often
characterized as being poor habitat for many species of wildlife, but
it can be a valuable substitute where the hydrology has been altered to
the extent that native woodland habitat can no longer exist (Hunter et
al. 1988, 113-123; Service 2002, pp. K-11-K-14; Sogge et al. 2008, pp.
148-152; Shafroth et al. 2010, entire). The spread of tamarisk and the
loss of native riparian vegetation is primarily a result of land and
water management actions. Tamarisk does not invade and out-compete
native vegetation in the Southwest (Service 2002, p. H-11). Rather,
human actions have facilitated tamarisk dispersal to new locales, and
created opportunities for its establishment by clearing vegetation,
modifying physical site conditions, altering natural river processes,
and disrupting biotic interactions (Service 2002, p. H-11). Because the
presence and relative dominance of tamarisk is greatly influenced by
hydrologic regime and depth to groundwater, native riparian vegetation
in tamarisk-dominated systems is unlikely to reestablish unless the
hydrologic regime is restored (Stromberg et al. 2007, pp. 381-391).
Western yellow-billed cuckoos will sometimes build their nests and
forage in tamarisk, but there is usually a native vegetation component
within the occupied habitat (Gaines and Laymon 1984, p. 72; Johnson et
al. 2008, pp. 203-204). Surveys conducted in the late 1990s in Arizona
in historically occupied western yellow-billed cuckoo riparian habitat
found 85 percent of all western yellow-billed cuckoo detections in
habitat dominated by cottonwood with a strong willow and mesquite
understory, 11.5 percent within mixed native and tamarisk habitats, 3.5
percent within mixed native and Russian olive habitats, and only 5
percent within tamarisk-dominated habitats (Johnson et al. 2008, pp.
203-204; Johnson et al. 2010, pp. 204-205). Even in the tamarisk-
dominated habitat, cottonwoods were still present at all but two of
these sites.
Although tamarisk monocultures generally lack the structural
diversity of native riparian habitat, western yellow-billed cuckoos may
use these areas for foraging, dispersal, and breeding, especially if
the tamarisk-dominated sites retain some native trees. Tamarisk
contributes cover, nesting substrate, temperature amelioration,
increased humidity, and insect production where native habitat
regeneration and survivability has been compromised by altered
hydrology (e.g., reduced flow or groundwater availability) and
hydrologic processes (e.g., flooding and sediment deposition). In parts
of the western yellow-billed cuckoo's range, some tamarisk-dominated
sites are used for nesting and foraging including parts of the Bill
Williams, Verde, Gila, Salt, and Rio Grande Rivers (Groschupf 1987, pp.
9, 15; Corman and Magill 2000, pp. 11, 14-16, Halterman 2001, pp. 11,
15; Leenhouts et al. 2006, p. 15; Sogge et al. 2008, p. 148; Sechrist
et al. 2009, p. 55; Dockens and Ashbeck 2011a, pp. 1, B-26; Dockens and
Ashbeck 2011b, pp. 8, D-2; Jarnevich et al. 2011, p. 170; McNeil et al.
2013b, p. I-1; Jakle 2014, entire; Orr et al. 2014, p. 25; SRP 2014,
entire; Service 2014b, p. 63; Arizona-Sonora Desert Museum 2016,
entire; Dillon et al. 2018 pp. 31-33; White et al. 2018 pp. 26-27; and
Parametrix, Incorporated (Inc.) and Southern Sierra Research Station
2019, p. 5-1).
Past restoration efforts favored nonnative tamarisk removal without
regard for its habitat suitability for the western yellow-billed
cuckoo. In areas where tamarisk is a major component (or part of the
understory), its removal may not be appropriate or recommended because
western yellow-billed cuckoo habitat selection may be based on
overstory/understory structure or annual variation in environmental
factors and not on specific vegetation types (Halterman 2001, pp. 11,
15; Sechrist et al. 2009, p. 53). Halterman (2001, pp. 11, 15) found
western yellow-billed cuckoos nesting in monoculture stands of tamarisk
in 2001 for the first time in the 6-year study, indicating that use of
tamarisk for nesting may change over time. In some areas, if tamarisk
is removed, the remaining habitat may be rendered unsuitable because it
is more exposed, hotter, and drier.
Another issue in regard to tamarisk is the introduction of
biocontrol agents to remove tamarisk. In 2001, the U.S. Department of
Agriculture's Animal and Plant Health Inspection Service (APHIS)
released various species of the nonnative tamarisk leaf beetle
(Diorhabda sp.) in an effort to control tamarisk invasion (APHIS 2005,
p. 4-5). Since 2001, the tamarisk leaf beetle has expanded rapidly and
its distribution now encompasses much of the western United States
(RiversEdge West, 2019, entire). This expansion of tamarisk defoliation
will lead to habitat degradation and may render areas unsuitable for
occupancy by the western yellow-billed cuckoo (Sogge et al. 2008, p.
150). Defoliation during the breeding season also exposes eggs and
nestlings to heat exposure and predation from decreased cover, as was
documented in 2008 in St. George, Utah, with the exposure-caused
failure of an active southwestern willow flycatcher nest (Paxton et al.
2011, p. 257). In defoliated areas of the Rio Grande, canopy cover was
still within the natural range of variation; however, the canopy cover
was composed of dead leaves as opposed to live leaves, which changed
the microclimate (Dillon and Ahlers 2018, pp. 26-27). Ultimately, the
sampled areas with the most tamarisk and subsequent defoliation
activity reflected the areas with the highest temperature extremes
(Dillon and Ahlers 2018, pp. 26-27).
Some tamarisk removal and native tree replacement projects are
under way to offset the arrival of tamarisk leaf beetles and subsequent
defoliation (Service 2016b, pp. 4-15). If these projects are
unsuccessful in sustaining native woodland habitat of at least the same
habitat value as habitat that was removed, the end result will be a net
loss of habitat. Another nonnative species identified as a biocontrol
agent, the tamarisk weevil (Coniatus sp.). has also been found in the
wild in Arizona, California, Nevada, and Utah (Eckberg and Foster 2011,
p. 51; Eichhorst et al. 2017, entire). The impact of the tamarisk
weevil has not been well studied and currently has not been shown to
significantly impact tamarisk-dominated habitats used by the western
yellow-billed cuckoo.
Breeding (nesting) habitat and home range size. In rangewide
western yellow-billed cuckoo habitat, the habitat used for breeding and
nesting by the species varies in size and shape. The available
information indicates that the species requires large tracts of habitat
for breeding and foraging during the nesting season (home range). The
larger the extent of habitat, the more likely it
[[Page 20839]]
will provide suitable habitat for the western yellow-billed cuckoos and
be occupied by nesting pairs (Laymon and Halterman 1989, pp. 274-275).
Rangewide breeding habitat can be relatively dense contiguous stands or
irregularly shaped mosaics of dense vegetation with more sparse or open
areas.
Along the Colorado River in California and Arizona, western yellow-
billed cuckoos tend to favor larger riparian habitat sites for nesting
(Laymon and Halterman 1989, p. 275): Sites less than 37 ac (15 ha) are
considered unsuitable nesting habitat; sites between 37 ac (15 ha) and
50 ac (20 ha) in size were rarely used as nest sites; and habitat
patches or aggregates of patches from 50 to 100 ac (20 to 40 ha) in
size were considered marginal habitat (Laymon and Halterman 1989, p.
275). Vegetation data collected in more recent years along the lower
Colorado River at 834 plots from 2006 through 2012 indicated the median
size of occupied sites (92 ac (37 ha)) was almost three times as large
as unoccupied sites (32 ac (13 ha)) (McNeil et al. 2013b, p. 94).
Habitat areas between 100 ac (40 ha) and 200 ac (81 ha), although
considered suitable, are not consistently used by the species in
California. The optimal size of habitat patches (aggregates of trees
that may be interspersed with openings, sparse understory or canopy, or
open floodplains) for the western yellow-billed cuckoo is generally
greater than 200 ac (81 ha) in extent and these patches should have
dense canopy closure and high foliage volume of willows and cottonwoods
in at least a portion of the overall habitat patch (Laymon and
Halterman 1989, pp. 274-275) to provide adequate space for nesting and
foraging.
In rangewide riparian breeding habitat and mixed riparian habitat
in California, Arizona, and New Mexico, the home ranges used by the
western yellow-billed cuckoo during the breeding season varied greatly
(Laymon and Halterman 1987, pp. 31-32; Halterman 2009, p. 93; Sechrist
et al. 2009, p. 55; McNeil et al. 2010, p. 75; McNeil et al. 2011, p.
37; McNeil et al. 2012, p. 69; McNeil et al. 2013a, pp. 49-52; McNeil
et al. 2013b, pp. 133-134). Home range estimates for western yellow-
billed cuckoos using telemetered birds on the lower Colorado River are
considerably smaller (20 ha) than those reported from other areas such
as the San Pedro River (38.6 ha) (Halterman 2009, p. 93) and the Rio
Grande (56.3 ha) (Sechrist et al. 2009, p. 55) and may indicate
differences in habitat area, quality, or prey densities (McNeil et al.
2013b, p. 137). On the Rio Grande in New Mexico, Sechrist et al. (2009,
p. 55) estimated a large variation in home range size, ranging from 12
to 697 ac (5 to 282 ha). On the upper San Pedro River in Arizona,
Halterman (2009, pp. 67, 93) also estimated a large variation in home
range size, ranging from 2.5 to 556 ac (1 to 225 ha). In the
intermountain west (Idaho, Utah, Colorado), the western yellow-billed
cuckoo breeds in similar habitats as described above but that are more
scattered and in lower density (Parrish et al. 1999, p. 197; Taylor
2000, pp. 252-253; Idaho Department of Fish and Game 2005, entire;
Wiggins 2005, p. 15). These measures suggest that the amount of habitat
required to support nesting western yellow-billed cuckoos even in
rangewide riparian breeding habitat is variable.
Home range size is unknown in southwestern breeding habitat,
including in more xeroriparian woodland, desert scrub and desert
grassland drainages with a tree component, and in Madrean evergreen
woodland drainages. Whether the area is considered marginal, suitable,
or optimal depends on numerous factors and is variable across the
species' range. Breeding habitat in more arid regions of the Southwest
may be made up of a series of adjacent or nearly adjacent habitat
patches, less than 200 ac (81 ha) each, which combined make up suitable
breeding habitat for the species. Often interspersed with large
openings, these habitat patches include narrow stands of trees, small
groves of trees, or sparsely scattered trees. For example, in the Agua
Fria River in central Arizona, occupied habitat consists not only of
mature cottonwood and willow gallery forest (multi-aged and multi-
height forest) found in rangewide breeding habitat, but also smaller
patches of young willows that are limited to narrow riparian corridors
with mesquite on the adjacent terrace, characteristic of southwestern
breeding habitat (Prager and Wise 2015, p. 13). In the bajadas,
foothills, and mountain drainages of southeastern Arizona, scattered
overstory trees, small patches of trees, or narrow stands of trees
contain suitable breeding habitat (MacFarland and Horst 2015, entire,
Corson 2018, pp. 5, 6-20; Sferra et al. 2019, entire).
Although large expanses of habitat are better than small patches
for the species, small habitat patches should be evaluated when
managing for the western yellow-billed cuckoo. The optimal minimum
breeding habitat patch size of 200 ac (81 ha) may not be applicable for
much of the Southwest, where breeding habitat may be narrower and
patchier and areas of less than 40 ac (16 ha) may be used for breeding
(Sechrist et al. 2009, p. 55; White et al. 2018, pp. 14-37). These
smaller sites support fewer western yellow-billed cuckoos, but
collectively they may be important for achieving recovery.
Western yellow-billed cuckoos appear to stage (gather) in southern
Arizona or northern Mexico pre- and post-breeding, suggesting that this
region is important to the DPS (McNeil et al. 2015, pp. 249, 251). Some
individuals also roam widely (several hundred miles), apparently
assessing food resources prior to selecting a nest site (Sechrist et
al. 2012, pp. 2-11). A plausible explanation for prolonged presence in
southern Arizona and northwestern Mexico pre- and post-breeding may be
that western yellow-billed cuckoos are taking advantage of increased
insect production in the monsoonal area. Identifying and maintaining
habitat across the species' range is important to allow the species to
take advantage of variable environmental conditions for successful
breeding opportunities.
Foraging area. Western yellow-billed cuckoos select a nesting site
based on optimizing the near-term foraging potential of the
neighborhood (Wallace et al. 2013, p. 2102). Given that western yellow-
billed cuckoos are larger birds with a short hatch-to-fledge time, the
adults must have access to abundant food sources to successfully rear
their offspring. High-quality foraging habitat in rangewide breeding
habitat often contains a mixture of overstory and understory vegetation
(typically cottonwoods and willows) that provides for diversity and
abundance of prey. However, tree habitat does not always have both an
overstory and understory. Western yellow-billed cuckoos generally
forage within the tree canopy, and the higher the foliage volume the
more likely western yellow-billed cuckoos are to use a site for
foraging (Laymon and Halterman 1985, pp. 10-12). Foraging areas can be
less dense with lower levels of canopy cover and often have a high
proportion of cottonwoods in the canopy. Foraging areas can also
include riparian habitat with a high abundance of tamarisk (White et
al. 2020, pp. 51-54).
The foraging distance and size of foraging habitat required by
western yellow-billed cuckoo varies on prey availability and other
environmental conditions and may vary annually and from site to site. A
foraging area during the breeding season may overlap with other western
yellow-billed cuckoo foraging areas if multiple nest sites are within a
single area. Hughes (2015, p. 3) suggests that adjacent nesting western
yellow-billed cuckoos use time spacing (i.e., no overlap in egg dates)
to partition
[[Page 20840]]
resources, allowing many nesting pairs to share localized short-term
abundance of food. In a study in rangewide breeding habitat in the
Sacramento Valley, California, the mean size of foraging areas for 4
pairs of western yellow-billed cuckoos was approximately 48 ac (19 ha)
(range 27 to 70 ac (11 to 28 ha)) of which about 25 ac (10 ha) was
considered usable habitat for foraging (Laymon 1980, p. 20; Hughes
1999, p. 7).
In the southwestern United States and northern Mexico, western
yellow-billed cuckoo foraging habitat is usually more arid than
adjacent occupied nesting habitat. Western yellow-billed cuckoos not
only forage within woodland breeding habitat, but they also forage in
almost any adjacent habitat. Desert vegetation in intermittent and
ephemeral drainages or adjacent upland areas may require direct
precipitation to flourish (Wallace et al. 2013, p. 2102). Other desert
areas with spring-fed habitat may provide similar habitat conditions.
Both are important features of western yellow-billed cuckoo foraging
habitat in the arid Southwest. In Arizona and New Mexico, adjacent
foraging habitat other than in riparian and xeroriparian or Madrean
evergreen woodland habitat includes several types of semi-desert scrub,
desert scrub, chaparral, semi-desert grassland, and desert grassland
(Brown and Lowe 1982, entire; Brown 1994, entire; Brown et al. 2007,
pp. 4-5; NatureServe 2016, entire; Drost et al. 2020, entire). In New
Mexico along the Rio Grande, 29 percent of all estimated territories in
the period 2009-2014 were located in understory vegetation (considered
less than 6 m (15 ft) in height) that lacked a canopy component
(considered less than 25 percent cover), but included a New Mexico
olive (Forestiera neomexicana) component (Hamilton 2014, p. 3-84). Of
these understory areas, roughly half were dominated by exotic species
(primarily tamarisk) (Carstensen et al. 2015, pp. 57-61). Western
yellow-billed cuckoos in New Mexico have also been observed foraging in
adjacent habitat up to 0.5 mi (0.8 km) away from nest sites (Sechrist
et al. 2009, p. 49). In the intermountain west (Idaho, Utah, Colorado),
the western yellow-billed cuckoo breeds in similar habitats as
described above but that are more scattered and in lower density
(Parrish et al. 1999, p. 197; Taylor 2000, pp. 252-253; Idaho Fish and
Game 2005, entire; Wiggins 2005, p. 15).
Movement corridors and connectivity of habitat. The western yellow-
billed cuckoo is a neotropical migratory species that travels between
North, Central, and South America each spring and fall (Sechrist et al.
2012, p. 5; McNeil et al. 2015, p. 244; Parametrix, Inc. and Southern
Sierra Research Station 2019, pp. 97-108). As such, it needs movement
corridors of linking habitats and stop-over sites along migration
routes and between breeding areas (Faaborg et al. 2010, pp. 398-414;
Allen and Singh 2016, p. 9). During movements between nesting attempts,
western yellow-billed cuckoos have been found at riparian sites with
small groves or strips of trees, sometimes less than 10 ac (4 ha) in
extent (Laymon and Halterman 1989, p. 274). The habitat features at
stop-over and foraging sites are typically similar to the features at
breeding sites, but may be smaller in size, may be narrower in width,
and may lack understory vegetation. Western yellow-billed cuckoos may
be using nonbreeding areas as staging areas or taking advantage of
local foraging resources (Sechrist et al. 2012, pp. 7-9; McNeil et al.
2015, pp. 250-252). As a result, western yellow-billed cuckoos use
nonbreeding or intermittently used breeding areas as staging areas,
movement corridors, connectivity between habitats, or foraging sites
(taking advantage of local foraging resources). However, because these
nonbreeding habitat areas are not limiting, we have not specifically
identified them as critical habitat.
Summary of Space for Individual and Population Growth and for Normal
Behavior
Therefore, based on the information above, for the majority of
habitat within the species' range (rangewide breeding habitat), we
identify rivers and streams of lower gradient and more open valleys
with a broad floodplain, containing riparian woodland habitat with an
overstory and understory vegetation component made up of various plant
species (most often dominated by willow or cottonwood) to be physical
or biological features essential to the conservation of the western
yellow-billed cuckoo. In more arid regions of the southwestern United
States (southwestern breeding habitat), we also identify reaches of
more arid riparian and xeroriparian habitat (including mesquite
bosques), desert scrub and desert grassland drainages with a tree
component, and Madrean evergreen woodland drainages in low- to high-
gradient drainages to be a physical or biological feature essential to
the conservation of this species. These habitat types provide space for
breeding, nesting, and foraging for the western yellow-billed cuckoo.
These habitat features also provide for migratory or stop-over habitat
and movement corridors for the western yellow-billed cuckoo.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food. Western yellow-billed cuckoos eat large insects but also prey
on small vertebrates such as frogs (e.g., Hyla spp.; Pseudacris spp.;
Rana spp.) and lizards (e.g., Lacertilia sp.) (Hughes 1999, p. 8). The
diet of the western yellow-billed cuckoo on the South Fork Kern River
in California showed the majority of the prey to be the big poplar
sphinx moth larvae (Pachysphinx occidentalis) (45 percent), tree frogs
(24 percent), katydids (22 percent), and grasshoppers (Order Othoptera)
(9 percent) (Laymon and Halterman 1985, pp. 10-12; Laymon et al. 1997,
p. 7). Minor prey at that site and other sites includes beetles (Order
Coleoptera sp.), dragonflies (Order Odonata), praying mantis (Order
Mantidae), flies (Order Diptera), spiders (Order Araneae), butterflies
(Order Lepidoptera), caddis flies (Order Trichoptera), crickets (Family
Gryllidae), and cicadas (Family Cicadidae) (Laymon et al. 1997, p. 7;
Hughes 1999, pp. 7-8). In Arizona, cicadas are an important food source
(Halterman 2009, p. 112). Western yellow-billed cuckoos on the Buenos
Aires National Wildlife Refuge in Arizona were observed eating tent
caterpillars, caterpillars of unidentified species, katydids, and
lizards (Griffin 2015, pp. 19-20). At upper Empire Gulch in
southeastern Arizona, a western yellow-billed cuckoo was photographed
in a tree in gallery riparian forest with a leopard frog (Rana spp.) in
its bill on July 21, 2014 (Barclay 2014, entire; Leake 2014, entire).
In the intermountain west (Idaho, Utah, Colorado), the western yellow-
billed cuckoo feeds on similar insect species (Parrish et al. 1999, p.
197; Idaho Fish and Game 2005, p. 2; Wiggins 2005, p. 18).
Western yellow-billed cuckoos depend on an abundance of large,
nutritious insect and vertebrate prey to survive and raise young. In
portions of the southwestern United States, high densities of prey
species may be seasonally found, often for brief periods of time,
during the vegetation growing season. The arrival and nesting of
western yellow-billed cuckoos typically coincides with the availability
of prey, which is later than in the eastern United States (Hughes 2020,
entire). Desiccated riparian sites produce fewer suitable insects than
moist sites. In areas that typically receive rains during the summer
monsoon, an increase in humidity, soil moisture, and surface
[[Page 20841]]
water flow are important triggers for insect reproduction and western
yellow-billed cuckoo nesting (Wallace et al. 2013, p. 2102). Western
yellow-billed cuckoos select a nesting site based on optimizing the
near-term foraging potential of the habitat (Wallace et al. 2013, p.
2102). Given that western yellow-billed cuckoos are large birds with a
short hatch-to-fledge time, the adults must have access to abundant
food sources to successfully rear their offspring (Laymon 1980, p. 27).
The variability of monsoon precipitation across a region may result in
areas with favorable conditions for western yellow-billed cuckoo
nesting in one year and less favorable in a different year. In years of
high insect abundance, western yellow-billed cuckoos lay larger
clutches (three to five eggs rather than two), a larger percentage of
eggs produce fledged young, and they breed multiple times (two to three
nesting attempts rather than one) (Laymon et al. 1997, pp. 5-7).
Therefore, we identify the presence of abundant, large insect fauna
(e.g., cicadas, caterpillars, katydids, grasshoppers, crickets, large
beetles, dragonflies, and moth larvae) and small vertebrates (frogs and
lizards) during nesting season of the western yellow-billed cuckoo to
be a physical or biological feature essential to the conservation of
the species.
Water and humidity. Rangewide breeding habitat for western yellow-
billed cuckoo is largely associated with perennial rivers and streams
that support the expanse of vegetation characteristics needed by
breeding western yellow-billed cuckoos. Throughout the western yellow-
billed cuckoo's range, winter precipitation (as rain or snow) provides
water flow to the larger streams and rivers in the late spring and
summer. In southwestern breeding habitat, western yellow-billed cuckoos
also breed in ephemeral and intermittent drainages, some of which are
associated with monsoonal precipitation events. Hydrologic conditions
at western yellow-billed cuckoo breeding sites can vary between years.
At some locations during low rainfall years, water flow may be reduced
or absent, or soils may not become saturated at appropriate times.
During high rainfall years, streamflow may be extensive and the
riparian vegetation can be inundated and soil saturated for extended
periods of time.
The North American Monsoon (monsoon) is a large-scale weather
pattern that causes high humidity and a series of thunderstorms during
the summer in northwestern Mexico and the southwestern United States
(Erfani and Mitchell 2014, pp. 13,096-13,097; National Weather Service
2019, p. 4). It supplies about 60-80 percent of the annual
precipitation for northwestern Mexico, 45 percent for New Mexico, and
35 percent for Arizona (Erfani and Mitchell 2014, p. 13,096). The
monsoon typically arrives in early to mid-July in Arizona and New
Mexico, where much of the rainfall occurs in the mountains (Erfani and
Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2).
The southwestern United States, at the northern edge of the monsoon's
range, receives less and more variable rainfall than northwestern
Mexico (National Weather Service 2019, p. 2).
Humid conditions created by the North American Monsoon (Erfani and
Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2)
and related surface and subsurface moisture appear to be important for
the western yellow-billed cuckoo. The moisture provides a ``green-up''
(sudden germination or growth of vegetation) that attracts prey and
improves habitat conditions. The species is restricted to nesting in
moist riparian habitat or in drainages that bisect semi-desert, desert
grasslands, desert scrub, and Madrean evergreen woodland in portions of
the western United States and northern Mexico because of humidity
requirements for successful hatching and rearing of young (Hamilton and
Hamilton 1965, p. 427; Gaines and Laymon 1984, pp. 75-76; Rosenberg et
al. 1991, pp. 203-204; Corman and Magill 2000, pp. 37-48; American
Birding Association 2014, entire; Arizona Game and Fish Department
2018, entire; Westland Resources, Inc. 2019, entire; Cornell Lab of
Ornithology 2020, (eBird data)).
Western yellow-billed cuckoos have evolved larger eggs and thicker
eggshells, which help them cope with potential higher egg water loss in
the hotter, drier conditions of the Southwest (Hamilton and Hamilton
1965, pp. 426-430; Ar et al. 1974, pp. 153-158; Rahn and Ar 1974, pp.
147-152). Nest sites have lower temperatures and higher humidity
compared to areas along the riparian forest edge or outside the forest
(Launer et al. 1990, pp. 6-7, 23). Recent research on the lower
Colorado River has confirmed that western yellow-billed cuckoo nest
sites had significantly higher daytime relative humidity (6-13 percent
higher) and significantly lower daytime temperatures (2-4 degrees
Fahrenheit (1-2 degrees Celsius) lower) than average forested sites
(McNeil et al. 2011, pp. 92-101; McNeil et al. 2012, pp. 75-83).
Seasonal precipitation results in vegetative regeneration in the
intermittent and ephemeral drainages and adjacent desert scrub, desert
grassland, and Madrean evergreen woodlands of the southwestern United
States. High summer monsoonal humidity and rain lead to summer flow
events in drainages and increased vegetative growth and associated
insect production during the breeding season. The North American
Monsoon promotes growth of shallow-rooted understory vegetation in
mesquite-dominated woodlands, Madrean evergreen woodlands, desert scrub
drainages, desert grassland drainages, and adjacent desert and
grassland vegetation (Brown 1994, pp. 59-62; Wallace et al. 2013, p.
2102). The hydrologic processes in Madrean evergreen woodlands, semi-
desert and desert scrub drainages, and semi-desert and desert grassland
drainages of southeastern Arizona are different than the rest of the
range of the western yellow-billed cuckoo. These bajada and upland
habitats on gently rolling hillsides are interspersed with intermittent
or ephemeral drainages. Humidity brought on by the summer monsoon may
be an especially important trigger for breeding western yellow-billed
cuckoos in this otherwise dry landscape.
Nesting continues through August and frequently into September in
southeastern Arizona, likely in response to the increased food
resources associated with the seasonal summer rains (Corman and Wise-
Gervais 2005, p. 202). For example, the big poplar sphinx moth is an
earth pupator (larvae burrow in the ground, and pupae emerge under
certain environmental conditions) (Oehlke 2017, p. 5). The sphinx moth
has a receptor that detects the water content of air to sense changes
in humidity and when conditions are favorable for feeding and breeding
(McFarland 1973, pp. 199-208; von Arx et al. 2012, p. 9471). In
riparian woodland habitat soil, moisture and humidity cue the sphinx
moths to emerge. In Arizona, summer monsoonal precipitation mimics
typical riparian woodland soil moisture conditions, which cue the
sphinx moth to emerge from the soil. Although sphinx moths are just one
of the foods eaten by western yellow-billed cuckoos, we use these moths
to illustrate that the unique monsoonal conditions in southeastern
Arizona contributing toward food production are an important factor in
western yellow-billed cuckoo presence in southeastern Arizona.
A large proportion of the remaining occupied habitat persists in
hydrologically altered systems in the
[[Page 20842]]
Southwest where the timing, magnitude, and frequency of natural flow
have changed (Service 2002, pp. J1-J34). Hydrologically altered
systems, with less dynamic riverine process than unaltered systems, can
support suitable western yellow-billed cuckoo habitat if suitable
woodland vegetation as described above is present. As discussed above
and in the October 3, 2014, Federal Register listing the western
yellow-billed cuckoo (79 FR 59992), human actions have cleared
vegetation, modified physical site conditions, altered natural river
processes, and disrupted biotic interactions along much of the western
yellow-billed cuckoo habitat in the West (Service 2002, p. H-11). In
the intermountain West (Idaho, Utah, Colorado), similar losses and
degradation of habitat have occurred (Parrish et al. 1999, pp. 200-201;
Idaho Fish and Game 2005, p. 3; Wiggins 2005, pp. 22-27). Habitat
conditions are greatly influenced by hydrologic regime and depth to
groundwater, and native riparian vegetation in altered systems is
unlikely to reestablish unless the hydrologic regime is restored
(Stromberg et al. 2007, pp. 381-391). However, these altered systems,
which often cannot support the native plant species and structural
diversity of unaltered systems, can support more adapted nonnative tree
species like tamarisk or Russian olive. Western yellow-billed cuckoos
occupy nonnative habitat interspersed with native habitat on the
Colorado, Bill Williams, Verde, Gila, Santa Cruz, San Pedro, and Rio
Grande Rivers (Corman and Magill 2000, pp. 15-16, 37-48; Sonoran
Institute 2008, pp. 30-34; Dockens and Ashbeck 2011a, p. 6; Dockens and
Ashbeck 2011b, p. 10; McNeil et al. 2013b, p. I-1; Arizona Game and
Fish Department 2018, entire; Parametrix, Inc. and Southern Sierra
Research Station 2019, p. 5-1).
Subsurface hydrologic conditions are equally important to surface
water conditions in determining riparian vegetation patterns. Depth to
groundwater plays an important part in the distribution of riparian
vegetation and western yellow-billed cuckoo habitat. Riparian forest
trees need access to shallow groundwater to grow to the appropriate
size and density to provide habitat for nesting, foraging, and
migrating western yellow-billed cuckoos. Goodding's willows and Fremont
cottonwoods do not regenerate successfully if the groundwater levels
fall below 6 ft (2 m) from the surface (Shafroth et al. 2000, pp. 66-
75). Goodding's willows cannot survive if groundwater levels drop below
10 ft (3 m), and Fremont cottonwoods cannot survive if groundwater
drops below 16 ft (5 m) (Stromberg and Tiller 1996, p. 123). Abundant
and healthy riparian vegetation decreases and habitat becomes stressed
and less productive when groundwater levels are lowered (Stromberg and
Tiller 1996, pp. 123-127).
Therefore, based on the information above, we identify seasonally
or perennially flowing rivers, streams, and drainages; elevated
subsurface groundwater tables; vegetative cover that provides important
microhabitat conditions for successful breeding and prey (high humidity
and cooler temperatures); seasonal precipitation (winter and summer) in
the Southwest; and high summer humidity as physical and biological
features essential to the conservation of the western yellow-billed
cuckoo.
Conditions for germination and regeneration of vegetation. The
abundance and distribution of fine sediment deposited on floodplains
during flood events is critical for the development, abundance,
distribution, maintenance, and germination of riparian tree species.
This sediment deposition must be accompanied by sufficient surface
moisture for seed germination and sufficient groundwater levels for
survival of seedlings and saplings (Stromberg 2001, pp. 27-28). The
lack of stream flow processes, which deposit such sediments and clear
out woody debris, may lead riparian forested areas to senesce (age and
become less productive) and to become degraded and not able to support
the varied vegetative structure required for western yellow-billed
cuckoo nesting and foraging.
In unmanaged hydrologic systems (natural riverine systems),
associated with rangewide breeding habitat, this variability of water
flow results in removal of stream banks and deposition of soil and
sediments. These sediments provide areas for vegetation (especially
cottonwood and willow) to colonize and provide diverse habitat for the
western yellow-billed cuckoo. In managed hydrologic systems (systems
controlled by dams), stream flow is often muted and does not provide
the magnitude of these removal and deposition events except during
flood events depending on stream-bank composition (Fremier et al. 2014,
pp. 4-6). However, if these systems are specifically managed to mimic
more natural conditions, some removal and deposition can occur. The
range and variation of stream flow frequency, magnitude, duration, and
timing that will establish and maintain western yellow-billed cuckoo
habitat can occur in both managed and unmanaged flow conditions
depending on the interaction of the water feature and its floodplain or
the physical characteristics of the landscape.
However, successional vegetation change that produces suitable
habitat consisting of varied vegetative structure can also occur in
managed river and reservoir systems (and in human-altered river
systems) when managed to mimic natural stream flows, but sometimes with
different vegetation species composition, at different timing,
frequency, and magnitude than natural riverine systems. For example,
varying amounts of western yellow-billed cuckoo habitat are available
from month-to-month and year-to-year as a result of dam operations.
During dry years, when lake levels may be low, vegetation can be
established and mature into habitat for the western yellow-billed
cuckoo. In wet years, this vegetation can be flooded for extended
periods of time and be stressed or killed. This is particularly true of
areas upstream of reservoirs like Lake Isabella in California,
Roosevelt and Horseshoe Reservoirs in Arizona, and Elephant Butte
Reservoir in New Mexico, all of which have relatively large western
yellow-billed cuckoo populations. The filling and draw-down of
reservoirs often mimics the flooding and drying events associated with
intact riparian woodland habitat and river systems providing habitat
for the western yellow-billed cuckoo.
In southern Arizona and New Mexico, where water is less available
and releases do not mimic the natural hydrograph, riparian habitat is
often narrower, patchier, sparser, and composed of more xeroriparian
and nonriparian trees and large shrubs than in a free- flowing river.
Habitat regeneration opportunities occur less frequently than in
natural systems or managed systems that mimic the natural hydrograph.
Prolonged drying and flooding from reservoir management can also affect
food resources and habitat suitability for western yellow-billed
cuckoos. For example, food availability is affected when prolonged
inundation reduces survivability of ground-dwelling insects such as
sphinx moth pupa or katydid eggs (Peterson et al. 2008, pp. 7-9).
Likewise, prolonged drying reduces the vegetation available for prey
insects to consume, so less insect biomass is available for western
yellow-billed cuckoos.
In the southwestern United States, the North American Monsoon
season, which peaks in July and August when western yellow-billed
cuckoos are breeding, provides about 45 percent and
[[Page 20843]]
35 percent of the annual precipitation for New Mexico and Arizona,
respectively (Erfani and Mitchell 2014, p. 13096). The increased
humidity and rains promote rapid and dense herbaceous growth (forbs,
grasses, and vines) in occupied habitat in riparian (including
xeroriparian) drainages intersecting desert scrub and desert grassland,
and Madrean evergreen woodlands. In southeastern Arizona, Madrean
evergreen woodland habitat receives half of the annual precipitation
during the growing season from May through August (Brown 1994, pp. 60,
62).
Therefore, based on the information above, we identify flowing
perennial rivers and streams and deposited fine sediments as physical
and biological features essential to the conservation of the western
yellow-billed cuckoo. These conditions may occur in either natural or
regulated human-altered riverine systems. We also identify intermittent
and ephemeral drainages and immediately adjacent upland habitat (which
receive moisture as a result of summer monsoon events and other
seasonal precipitation) that promote seed germination and regeneration
as essential physical or biological features of western yellow-billed
cuckoo habitat.
Cover or shelter. Rangewide breeding habitat and the more arid
southwestern breeding habitat provide the western yellow-billed cuckoo
with cover and shelter while foraging and nesting. Placing nests in
dense vegetation provides cover from predators that would search for
adult western yellow-billed cuckoos, their eggs, nestlings, and fledged
young. For example, northern harriers (Circus cyaneus) prey on western
yellow-billed cuckoo nestlings in open riparian vegetation at
restoration sites in California. Dense vegetation in the habitat patch
makes it difficult for northern harriers to prey on species like the
western yellow-billed cuckoo (Laymon 1998, pp. 12-14). As noted above,
shelter provided by the vegetation also contributes toward providing
nesting sites, temperature amelioration, and increased humidity, all of
which assist in benefiting the life history of western yellow-billed
cuckoo.
Therefore, we identify riparian trees, including but not limited to
willow, cottonwood, alder, walnut, sycamore, boxelder, and ash that
provide cover and shelter for nesting, foraging, and dispersing western
yellow-billed cuckoos as physical or biological features essential to
the conservation of the western yellow-billed cuckoo. In southwestern
breeding habitat in more arid riparian drainages, in addition to the
riparian species above, we identify oak, mesquite, hackberry, acacia,
juniper, greythorn, mimosa, soapberry, desert willow, Russian olive,
and tamarisk that provide cover and shelter for nesting, foraging, and
dispersing western yellow-billed cuckoos as physical or biological
features essential to the conservation of the western yellow-billed
cuckoo.
Sites for breeding, reproduction, or rearing (or development) of
offspring.
Young habitat. The presence of young trees appears to be a
component of breeding habitat in at least some sites. In studies of
riparian forests throughout California and along the California-Arizona
border along the lower Colorado River, researchers found that the
western yellow-billed cuckoo is not restricted to old-growth willows
and cottonwood habitat, but occurs in habitat with younger trees and
saplings 9-32 ft (3-30 m) or less (Gaines and Laymon 1984, pp. 73-75;
Anderson and Laymon 1989, entire; Laymon and Halterman 1989, entire;
Raulston 2020, p. 4). Along the lower Colorado River in restored sites
at the Palo Verde Ecological Reserve, the number of western yellow-
billed cuckoo territories increased annually until the fourth year
after planting and then began declining and moving into more recently
planted areas (Raulston 2020, p. 20). Between 2008 and 2012,
researchers found that small tree stem density associated with young
trees and total canopy closure at revegetation sites positively
associated with western yellow-billed cuckoo nest placement and that
native large tree stem density showed only a weak positive association
with nest placement (McNeil et al. 2013b, ES-2, Raulston 2020, p. 5).
Area (site size) was also a predictor of site occupancy to a lesser
degree; the median size of occupied sites (37.2 ha) was almost three
times as large as unoccupied sites (12.8 ha).
Western yellow-billed cuckoo nests have been documented in Fremont
cottonwood, Goodding's black willow (Salix gooddingii), red willow
(Salix laevigata), coyote willow (Salix exigua), yew-leaf willow (Salix
taxifolia), Arizona sycamore, mesquite, tamarisk, hackberry, boxelder,
soapberry, Arizona walnut, acacia, ash, alder, seep willow (Baccharis
salicifolia), English walnut (Juglans regia), oak, and juniper (Laymon
1980, pp. 6-8; Laymon 1998, p. 7; Hughes 1999, p. 13; Corman and Magill
2000, p. 16; Halterman 2001, p. 11; Halterman 2002, p. 12; Halterman
2003, p. 11; Halterman 2004, p. 13; Corman and Wise-Gervais 2005, p.
202; Halterman 2005, p. 10; Halterman 2007, p. 5; Holmes et al. 2008,
p. 21; McNeil et al. 2013b, pp. I-1-I-3; Tucson Audubon Society 2015,
p. 44; Groschupf 2015, entire; MacFarland and Horst 2015, pp. 9-12;
Sferra et al. 2019, p. 3).
In one study of a compilation of nests, nest site characteristics
in rangewide riparian woodland breeding habitat have been compiled from
217 western yellow-billed cuckoo nests from primarily rangewide
breeding habitat on the Sacramento and South Fork Kern Rivers in
California, and the Bill Williams and San Pedro Rivers in Arizona.
Western yellow-billed cuckoos generally nest in thickets dominated by
willow trees along floodplains greater than 200 ac (81 ha) in extent
and greater than 325 ft (100 m) in width. Nests are placed on well-
foliaged branches closer to the tip of the branch than the trunk of the
tree (Hughes 1999, p. 13). Nests are built from 4 ft to 73 ft (1 m to
22 m) above the ground (average 22 ft (7 m)). Nests at the San Pedro
River averaged higher (29 ft (9 m)) than either the Bill Williams River
(21 ft (6 m)) or the South Fork Kern River (16 ft (5 m)). Nest trees
ranged from 10 ft (3 m) to 98 ft (30 m) in height and averaged 35 ft
(11 m). In older stands, heavily foliaged branches that are suitable
for nesting often grow out into small forest openings or over sloughs
or streams, making for ideal nest sites. In younger stands, nests are
more often placed in vertical forks or tree crotches. Most nest sites
in the study were in rangewide riparian breeding habitat and were
placed in willows (72 percent of 217 nests), in generally willow-
dominated sites. Nests were also documented in other riparian tree
species, including Fremont cottonwood (13 percent), mesquite (7
percent), tamarisk (4 percent), netleaf hackberry (Celtis laevigata
var. reticulata) (2 percent), English walnut (Juglans regia) (1
percent), boxelder (less than 1 percent), and soapberry (Sapindus
saponaria) (less than 1 percent) (Laymon 1980, p. 8; Laymon 1998, p. 7;
Hughes 1999, p. 13; Corman and Magill 2000, p. 16; Halterman 2001, p.
11; Halterman 2002, p. 12; Halterman 2003, p. 11; Halterman 2004, p.
13; Corman and Wise-Gervais 2005, p. 202; Halterman 2005, p. 10;
Halterman 2007, p. 5; Holmes et al. 2008, p. 21).
Canopy cover directly above the nest is generally dense (average
cover is 89 percent) and is denser at the South Fork Kern River (93
percent) and Bill Williams River (94 percent) than at the San Pedro
River (82 percent). Canopy closure in a plot around the nest averages
71 percent and was higher at the Bill Williams River (80 percent) than
at the South Fork Kern River (74 percent) or San Pedro River (64
percent) (Laymon et al. 1997, pp. 22-23; Halterman 2001, pp. 28-29;
Halterman
[[Page 20844]]
2002, p. 25; Halterman 2003, p. 27; Halterman 2004, p. 42; Halterman
2005, p. 32; Halterman 2006, p. 34). In the intermountain West (Idaho,
Utah, Colorado), the western yellow-billed cuckoo breeds in similar
habitats as described above, but they are more scattered and in lower
density (Parrish et al. 1999, pp. 196-197; Taylor 2000, pp. 252-253;
Idaho Fish and Game 2005, entire; Wiggins 2005, p. 15). Optimal
breeding habitat in rangewide riparian breeding habitat contains
willow-dominated groves with dense canopy closure and well-foliaged
branches for nest building with nearby foraging areas consisting of a
mixture of cottonwoods and willows with a high volume of healthy
foliage.
In a study on a lower Colorado River revegetation site, where
cottonwood, willow, and mesquite were planted yellow-billed cuckoos
nested in cottonwoods (n = 95, 57.5 percent), Goodding's willows (n =
49, 29.7 percent), honey mesquite (Prosopis glandulosa) (n = 13, 7.9
percent), tamarisk (n = 5, 3.0 percent), coyote willow (n = 2, 1.2
percent), and seep willow (n = 1, 0.7 percent) (Parametrix, Inc. and
Southern Sierra Research Station 2019, Table 24 p. 89). Trees or shrubs
used as nest substrates ranged in height from 2.5 m (8.2 ft) to 25.0 m
(82 ft) (mean = 12.3 m (40.4 ft)). Nest heights ranged from 1 m (3.3
ft) to 20 m (66 ft) (mean = 7.6 m (24.8 ft)) (Parametrix, Inc. and
Southern Sierra Research Station 2019, pp. ES-3, 88). Tamarisk was not
planted and is uncommon within the revegetation sites.
Some historical records document western yellow-billed cuckoo
presence during the breeding season in extensive mesquite bosques on
the Santa Cruz River and in the semi-desert grasslands and desert scrub
xeroriparian drainages of Canelo Hills; and in the Madrean evergreen
woodlands mountain drainages of the Atascosa, Pajarito, Santa Rita,
Patagonia, Huachuca, and Chiricahua Mountains of Southeastern Arizona
(Groschupf (1987, pp. 11, 14, 16; Corman and Magill 2000, pp. 26-29,
37). In Arizona in the late 1990s, western yellow-billed cuckoos were
documented in Sycamore Canyon and Pena Blanca Canyon in the Atascosa
Mountains, Canelo Hills, and in the desert scrub and grassland
xeroriparian drainages in the Altar Valley on Buenos Aires National
Wildlife Refuge (Corman and Magill 2000, pp. 38, 40-44, 48, 51). The
first oak nest documented in a Madrean evergreen woodland drainage was
found in the lower Santa Rita Mountains in 2014 (Tucson Audubon Society
2015, p. 44).
In a 2018-2019 study to confirm western yellow-billed cuckoo
breeding (copulation, active nests, or fledged young), breeding was
documented at 39 out of 51 occupied sites in ephemeral xeroriparian
drainages in Madrean evergreen woodland, desert and semi-desert scrub,
and semi-desert grassland habitats in southeastern Arizona. These 51
occupied drainages were in the lower Santa Catalina Mountains, lower
Santa Rita Mountains, Patagonia Mountains, lower Atascosa Mountains,
Altar Valley, Baboquivari Mountains, Canelo Hills, and Huachuca
Mountains (Drost et al. 2020, pp. 11-13. Multiple nests were found at
some sites, including Las Guijas Wash and Canoa Wash in the Altar
Valley, and Box Canyon and Florida Canyon in the Santa Rita Mountains.
Trees where nests were placed varied in size and amount of cover,
ranging from small to large trees and from well-concealed nests to
partially exposed nests (Service 2020c, entire). Most nests were
located along the drainage bottoms (See section on southwestern
breeding (nesting) habitat).
Therefore, we identify rangewide riparian woodland generally
containing willow and cottonwood, usually within floodplains greater
than 200 ac (81 ha) in extent and greater than 325 ft (100 m) in width,
with one or more densely foliaged nesting areas, to be a physical or
biological feature essential to the conservation of the species. In
some areas, we also identify southwestern breeding habitat (drainages
with riparian, xeroriparian, and nonriparian tree and large shrub
habitat intersecting desert scrub, desert grassland, and Madrean
evergreen woodland, and Madrean pinyon-juniper woodland) that may be
less than the 200-ac (81-ha) area, 325-ft (100-m) width with one or
more nesting and foraging sites to be a physical or biological feature
essential to the conservation of the species.
Effects of climate change. The available information on the effects
of climate change has led us to predict that there will be altered
environmental conditions across the western United States (the breeding
range of the western yellow-billed cuckoo) (Hoerling et al. 2013, pp.
3-15). In the southwestern United States, northern Mexico, California,
Intermountain West, and Pacific Northwest, climate change information
is generally leading us to predict an overall warmer, drier climate,
with periodic episodic precipitation events that, depending on site
conditions, are expected to have adverse effects on habitat of the
western yellow-billed cuckoo (Enquist et al. 2008, pp. 1-32; Gardali et
al. 2012, pp. 8-10; Munson et al. 2012, pp. 1,083-1,095; Friggens and
Finch 2015, entire; Smith and Finch 2016, entire). In rivers that
depend on snowmelt, these changes are expected to result in more winter
flooding and reduced summer stream flows (Dominguez et al. 2012, pp. 1-
7). The amount of surface and groundwater available to regenerate and
sustain riparian forests is expected to decline overall with persistent
drought, favor the spread of tamarisk and other nonnative vegetation,
and increase fire frequency (Westerling et al. 2006, pp. 942-943;
McCarthy 2012, pp. 23-25; Smith and Finch 2016, p. 128). Precipitation
events under most climate change scenarios within the range of the DPS
will decrease in frequency and increase in severity (Dominguez et al.
2012, pp. 4-7; Melillo et al. 2014, pp. 70-81). Impacts to riparian
habitat from climate change will exacerbate impacts from water drawdown
from human use, impoundments, channelization, and alteration of river
flows across the western United States and Mexico, and from conversion
of habitat from native to mostly nonnative vegetation (Glenn and Nagler
2005, p. 439; Bradley et al. 2009, pp. 1514-1519; IPCC 2014, pp. 4-11;
Friggens and Finch 2015, pp. 120-131).
Changing climate is expected to place added stress on the species
and its habitat. This change may reduce available nesting sites and
patch size and affect prey abundance as a result of lower humidity in
riparian areas from reduced moisture retention, through periods of
prolonged desiccation, and through increased likelihood of scouring
flood events (Melillo et al. 2014, p. 75). A recent study found western
yellow-billed cuckoo habitat suitability to be significantly reduced
with hotter maximum July temperatures and increased distance to water
along the Rio Grande, with 65-98 percent of their suitable habitat in
New Mexico expected to be lost by 2090 (Friggens and Finch 2015, p.
11). Droughts may impact areas in Arizona that are influenced by
monsoons (Wallace et al. 2013, pp. 2094-2107). Analyses of stream gauge
data in the southwestern United States indicate that earlier and
diminished stream discharge is expected in Arizona, Colorado, New
Mexico, and Utah, which will likely reduce survival and reproduction
rates of cottonwood, willow, box elder, and sycamore tree species
(Smith and Finch 2016, pp. 120-131). Habitat suitability models further
predict that changes in climate will increase habitat fragmentation and
decrease breeding habitat patch size along the Rio Grande
[[Page 20845]]
in New Mexico (Friggens and Finch 2015, pp. 1-22). In addition,
evidence shows that climate change may disrupt the synchrony of nesting
western yellow-billed cuckoos and their food supply, causing further
population decline and curtailment of its occupied range (Durst 2004,
pp. 40-41; Scott et al. 2004, p. 70; Visser and Both 2005, pp. 2561-
2569). For a more thorough discussion of climate change and the impacts
it has on habitat for the western yellow-billed cuckoo, see the final
rule to list the species as threatened published in the Federal
Register on October 3, 2014 (79 FR 59992 at 60023).
Summary of Physical or Biological Features Essential for the Western
Yellow-billed Cuckoo
According to 50 CFR 424.12(b)(1)(ii), we identify physical and
biological features essential to the conservation of the species at an
appropriate level of specificity using the best available scientific
data. This analysis will vary between species and may include
consideration of the appropriate quality, quantity, and spatial and
temporal arrangements of such features in the context of the life
history, status, and conservation needs of the species.
Given the wide variety and extent of foraging habitat outside the
breeding habitat, and the large geographic areas in which western
yellow-billed cuckoos search for food, we are not designating foraging
habitat as critical habitat. Based on our current knowledge of the
habitat characteristics required to sustain the species' life-history
processes including breeding and dispersing, we have determined that
the specific physical or biological features essential to the
conservation of the western yellow-billed cuckoo consist of the
following three components:
Physical or Biological Feature 1--Rangewide breeding habitat.
Riparian woodlands across the DPS; Southwestern breeding habitat,
primarily in Arizona and New Mexico: Drainages with varying
combinations of riparian, xeroriparian, and/or nonriparian trees and
large shrubs. This physical or biological feature includes breeding
habitat found throughout the DPS range as well as additional breeding
habitat characteristics unique to the Southwest.
a. Rangewide breeding habitat (including areas in the Southwest).
Rangewide breeding habitat is composed of riparian woodlands within
floodplains or in upland areas or terraces often greater than 325 ft
(100 m) in width and 200 ac (81 ha) or more in extent with an overstory
and understory vegetation component in contiguous or nearly contiguous
patches adjacent to intermittent or perennial watercourses. The slope
of the watercourses is generally less than 3 percent but may be greater
in some instances. Nesting sites within the habitat have an above-
average canopy closure (greater than 70 percent), and have a cooler,
more humid environment than the surrounding riparian and upland
habitats. Rangewide breeding habitat is composed of varying
combinations of riparian species including the following nest trees:
Cottonwood, willow, ash, sycamore, boxelder, alder, and walnut.
b. Southwestern breeding habitat. Southwestern breeding habitat,
found primarily in Arizona and New Mexico, is more variable than
rangewide breeding habitat. Southwestern breeding habitat occurs within
or along perennial, intermittent, and ephemeral drainages in montane
canyons, foothills, desert floodplains, and arroyos. It may include
woody side drainages, terraces, and hillsides immediately adjacent to
the main drainage bottom. Drainages intersect a variety of habitat
types including, but not limited to, desert scrub, desert grassland,
and Madrean evergreen woodlands (presence of oak). Southwestern
breeding habitat is composed of varying combinations of riparian,
xeroriparian, and/or nonriparian tree and large shrub species
including, but not limited to, the following nest trees: Cottonwood,
willow, mesquite, ash, hackberry, sycamore, walnut, desert willow,
soapberry, tamarisk, Russian olive, juniper, acacia, and/or oak. In
perennial and intermittent drainages, Southwestern riparian breeding
habitat is often narrower, patchier, and/or sparser than rangewide
riparian breeding habitat and may contain a greater proportion of
xeroriparian trees and large shrub species. Although some cottonwood
and willow may be present in Southwestern riparian habitat,
xeroriparian species may be more prevalent. Mesquite woodland may be
present within the riparian floodplain, flanking the outer edges of
wetter riparian habitat, or scattered on the adjacent hillsides. The
more arid the drainage, the greater the likelihood that it will be
dominated by xeroriparian and nonriparian nest tree species. Arid
ephemeral drainages in southeastern Arizona receive summer humidity and
rainfall from the North American Monsoon (PBF 3), with a pronounced
green-up of grasses and forbs. These arid ephemeral drainages often
contain xeroriparian species like hackberry or nonriparian species
associated with the adjacent habitat type like oak, mesquite, acacia,
mimosa, greythorn, and juniper. In southeastern Arizona mountains,
breeding habitat is typically below pine woodlands (~6,000 ft (1,829
m)).
Physical or Biological Feature 2--Adequate prey base. Presence of
prey base consisting of large insect fauna (for example, cicadas,
caterpillars, katydids, grasshoppers, large beetles, dragonflies, moth
larvae, spiders), lizards, and frogs for adults and young in breeding
areas during the nesting season and in post-breeding dispersal areas.
Physical or Biological Feature 3--Hydrologic processes. The
movement of water and sediment in natural or altered systems that
maintains and regenerates breeding habitat. This physical or biological
feature includes hydrologic processes found in rangewide breeding
habitat as well as additional hydrologic processes unique to the
Southwest in southwestern breeding habitat:
a. Rangewide breeding habitat hydrologic processes (including the
Southwest): Hydrologic processes (either natural or managed) in river
and reservoir systems that encourage sediment movement and deposits and
promote riparian tree seedling germination and plant growth,
maintenance, health, and vigor (e.g., lower-gradient streams and broad
floodplains, elevated subsurface groundwater table, and perennial
rivers and streams). In some areas where habitat is being restored,
such as on terraced slopes above the floodplain, this may include
managed irrigated systems that may not naturally flood due to their
elevation above the floodplain.
b. Southwestern breeding habitat hydrologic processes: In
southwestern breeding habitat, elevated summer humidity and runoff
resulting from seasonal water management practices or weather patterns
and precipitation (typically from North American Monsoon or other
tropical weather events) provide suitable conditions for prey species
production and vegetation regeneration and growth. Elevated humidity is
especially important in southeastern Arizona, where western yellow-
billed cuckoos breed in intermittent and ephemeral drainages.
Because the western yellow-billed cuckoo exists in noncontiguous
areas across a wide geographical and elevational range and its habitat
is subject to dynamic events, the areas described below (see Final
Critical Habitat Designation) are essential to the conservation of the
western yellow-billed cuckoo because they provide opportunities for
breeding, allow for connectivity between habitat, assist in dispersal,
provide redundancy to
[[Page 20846]]
protect against catastrophic loss, and provide representation of the
varying habitat types used for breeding, thereby helping to sustain the
species. The physical or biological features essential to the
conservation of the western yellow-billed cuckoo are present in the
areas designated, but the specific quality of habitat for nesting,
migration, and foraging will vary in condition and location over time
due to plant succession and the dynamic environment in which they
exist. As a result, the areas that are designated may not contain at
any one time all of the physical and biological features that have been
identified for the western yellow-billed cuckoo.
Based on use of the areas for breeding, we conclude that all of the
areas identified contain all or most of the physical or biological
features, but in some cases, these features are less prevalent, or
their presence is variable over time due to the changing nature of
habitat from hydrologic processes. As stated above, all critical
habitat units are considered to have been occupied at the time of
listing.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. Here we describe the type of special management
considerations or protection that may be required for the physical or
biological features identified for the western yellow-billed cuckoo
above. The specific critical habitat units and subunits where these
management considerations or protection may be required are identified
in Table 2 below.
A detailed discussion of activities influencing the western yellow-
billed cuckoo and its habitat can be found in the final listing rule
(79 FR 59992, October 3, 2014). The above-described physical or
biological features (PBFs) may require special management
considerations or protection to reduce the following threats or
potential threats: Disruption of hydrologic processes that are
necessary to maintain a healthy riparian system; unauthorized or
uncontrolled grazing; loss of habitat from development activities and
extractive uses (sand, gravel, or mineral extraction); degradation of
habitat as a result of expansion of nonnative vegetation; destruction
of habitat by uncontrolled wildfire; reduction of prey insect abundance
by the unauthorized or improper application of pesticides; removal of
habitat by biocontrol insects; and habitat loss and degradation from
invasive nonnative pest insects. More specific activities that may need
special management are identified in Table 2, below.
Special management considerations or protection are required within
critical habitat areas to address these threats. Management activities
that could ameliorate these threats include (but are not limited to)
the following: Monitoring and regulating stream flows below reservoirs
to mimic natural flooding and other hydrologic processes to help
maintain habitat; establishing permanent conservation easements or land
acquisition to protect the species and its habitat; minimizing habitat
disturbance, fragmentation, and destruction through use of best
management practices; and providing appropriate buffers around western
yellow-billed cuckoo habitat.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently designating
any areas outside the geographical area occupied by the species because
the western yellow-billed cuckoo is found throughout its historical
range, nor are we designating all areas within the geographical area
occupied by the species. Additional areas besides those identified as
critical habitat may be important for recovery for the western yellow-
billed cuckoo, but these areas were not identified as critical habitat;
however, they may be part of future recovery planning efforts for the
species.
To determine and select appropriate occupied areas that contain the
physical or biological features essential to the conservation of the
species, we developed a conservation strategy for identifying critical
habitat for the species. The goal of our conservation strategy for the
western yellow-billed cuckoo is to assist in recovery of the species to
the point where the protections of the Act are no longer necessary.
Other actions in addition to designating critical habitat may be
necessary to achieve recovery of the species including development of
additional management actions aimed at conserving, enhancing, and
protecting the western yellow-billed cuckoo and its habitat. These
actions would be further identified in a Recovery Plan for the species.
The role of critical habitat in achieving this conservation goal is to
identify the specific areas within the western yellow-billed cuckoo's
range that provide essential physical and biological features, without
which areas the DPS's rangewide resiliency, redundancy, and
representation could not be achieved. This, in turn, requires an
understanding of the fundamental parameters of the species' biology and
ecology based on well-accepted conservation-biology and ecological
principles for conserving species and their habitats, such as those
described by Carroll et al. (1996, pp. 1-12); Meffe and Carroll (1997,
pp. 347-383); Shaffer and Stein (2000, pp. 301-321); NRCS (2004
entire); Tear et al. (2005, pp. 835-849) and Wolf et al. (2015, pp.
200-207); and more general riparian and avian conservation management
prescriptions such as those described in Service 1985; Gardner et al.
1999; Wyoming Partners in Flight 2002; Rich et al. 2004; Riparian
Habitat Joint Venture (RHJV) 2004; Shuford and Gardali 2008; and Griggs
2009.
Conservation Strategy
In developing our conservation strategy for determining what areas
to include as critical habitat for the western yellow-billed cuckoo, we
focused on the western yellow-billed cuckoo's breeding habitat.
Breeding habitat includes areas for nesting and foraging and also
provides for dispersal habitat when breeding or food resources may not
be optimal. Breeding habitat is widely spread across the species' range
and typically provides the physical and biological features essential
to the conservation of the species without which rangewide resiliency,
redundancy, and representation of the species could not be achieved. As
explained further below, this focus led to the inclusion of breeding
habitat within three general habitat settings as part of the
conservation strategy. The three general settings include: (1) Large
river systems (mainstem rivers and their tributaries) in the southern
and central portions of New Mexico, Arizona, and along the California
border with Arizona (generally referred to as the Southwest); (2)
locations within southern Arizona not associated with major river
systems or their tributaries; and (3) large river systems outside the
Southwest (as identified in (1) above) that occur in
[[Page 20847]]
different ecological settings that are being consistently used as
breeding areas by western yellow-billed cuckoo (such as areas in parts
of California, Utah, Idaho, or Colorado).
As discussed above, the western yellow-billed cuckoo is a migratory
species that travels long distances to take advantage of localized food
resource outbreaks or habitat availability. Maintaining breeding areas
(which include nesting habitat, foraging habitat, and dispersal
habitat) throughout the range of the western yellow-billed cuckoo
allows for within-year and year-to-year movements to take advantage of
any spatial and temporal changes in habitat resources and food
abundance. We consider this necessary to conserve the species because
of the dynamic nature of habitat used by the species. Identifying
habitat across the species' range, but primarily in the Southwest where
the core of the population breeds: (a) Helps maintain a robust, well-
distributed population and enhances survival and productivity of the
western yellow-billed cuckoo as a whole; (b) facilitates interchange of
individuals between units; (c) promotes recolonization of any sites
within the current range of the species that may experience declines or
local extirpations due to low productivity or temporary habitat loss or
changes in resource availability from the core population areas; and
(d) allows for use of areas not being used as breeding in a given year
as habitat for movement and dispersal.
The western yellow-billed cuckoo breeding coincides with moist and
humid conditions that support abundant prey resources occurring in the
temperate zones of the western United States and northern Mexico during
the late spring and summer. Breeding areas of the western yellow-billed
cuckoo occur primarily in riparian woodlands along perennial rivers or
intermittent or ephemeral drainages containing vegetative structure,
canopy cover, and appropriate environmental conditions. These areas
provide suitable nesting habitat and adjacent foraging habitat with
adequate food resources on a consistent basis to successfully produce
and fledge young.
In general, the north-south migratory pathway of the western
yellow-billed cuckoo funnels through northern Mexico into the American
Southwest, with a significant portion of returning birds establishing
breeding territories along large river systems (mainstem rivers and
their tributaries) in the southern and central portions of New Mexico,
Arizona, and along the California border with Arizona. A significant
proportion of breeding western yellow-billed cuckoos also occurs in
large river systems in northwestern Mexico, primarily in Sonora and
Sinaloa, with smaller numbers in Chihuahua and Western Durango, and the
tip of Baja California. While returning western yellow-billed cuckoos
also establish breeding territories throughout portions of the western
States north of Arizona and New Mexico, these large southwestern and
Mexican river systems (including but not limited to the Lower Colorado,
Salt, Virgin, San Pedro, Gila, Verde, and Rio Grande Rivers) serve as
core breeding habitats for the western yellow-billed cuckoo as it
returns from wintering grounds in South America. These core areas
together provide a consistent, robust supply of resources necessary for
the maintenance and expansion of western yellow-billed cuckoos into
other habitats across the range. We consider the large river systems
(mainstem rivers and their tributaries) in the southern and central
portions of New Mexico, Arizona, and along the California border with
Arizona to be core areas for conservation of the western yellow-billed
cuckoo, and they constitute the first part of our conservation strategy
in determining its critical habitat. The core mainstem rivers and
streams along with their major tributaries and adjacent habitats
contain the physical or biological features essential for the
conservation of the western yellow-billed cuckoo.
However, these managed large river systems may not provide
sufficient breeding habitat for the western yellow-billed cuckoo in all
years (for example, in low flow years the amount of breeding habitat
along rivers is diminished), and unregulated smaller tributaries
supported or influenced by monsoonal weather patterns may assist in
supporting breeding western yellow-billed cuckoos during low flow or
drought conditions. Thus, the second part of our conservation strategy
includes areas within southern Arizona not associated with major river
systems or their tributaries as identified above. In southern Arizona,
western yellow-billed cuckoo also use drier habitats for breeding sites
in the desert, foothill, and mountain ephemeral drainages of southern
Arizona and northwestern Mexico (including but not limited to desert
grasslands and scrub, and Madrean evergreen woodland drainages). These
areas receive moisture from the seasonal North American Monsoon weather
systems and other summer tropical storm events. During the breeding
season, these habitats experience a ``flush'' of vegetation and
concurrent insect population eruptions, especially in the drainages
receiving relatively more moisture than uplands.
A portion of the DPS uses these wet-seasonal or monsoonal habitats
in southern Arizona and Mexico for breeding habitat. Use of these types
of sites by the western yellow-billed cuckoo provides additional
resiliency to the species due to the different weather patterns and
hydrological regimes that produce the habitat conditions suitable for
breeding. The availability of these additional resilient sites in
southern Arizona and northwestern Mexico other than the large
southwestern and Mexican river systems described above increases the
overall redundancy for the species. Therefore, the southwestern
monsoon-driven drainages with sufficient resources for western yellow-
billed cuckoo foraging and successful breeding are essential for the
overall resiliency and redundancy of the DPS and are therefore
essential to allow for conservation of the western yellow-billed cuckoo
across its range.
Finally, while large riverine riparian systems in the core area of
the American Southwest are fundamentally important for their ability to
contribute to the resiliency of the western yellow-billed cuckoo due to
the abundance of birds in these areas, similar systems throughout the
western yellow-billed cuckoo range are also likely important
contributors to local resiliency and maintaining distribution of the
western yellow-billed cuckoo across its range. These large river
systems outside the Southwest that are being consistently used as
breeding areas by western yellow-billed cuckoo have been identified as
the third part of our conservation strategy for determining critical
habitat. These areas are located in habitats identified as being within
different ecological settings, eco-types, or physio-geographic
provinces and provide for additional redundancy and representation for
the western yellow-billed cuckoo across its breeding range. The
physical and biological features of large river systems in differing
habitats with sufficient resources for western yellow-billed cuckoo
foraging and successful breeding are likely important for contributing
to the western yellow-billed cuckoo's overall resiliency, redundancy,
and representation, and are therefore essential for conservation of the
western yellow-billed cuckoo across its range. Habitats and
environmental settings in the arid Southwest differ significantly from
those in central California or higher elevation areas of Utah, Idaho,
or Colorado. By identifying known breeding habitat of appropriate size
throughout the species' range, we
[[Page 20848]]
provide habitat where yellow-billed cuckoos are most likely to thrive
and potentially increase in numbers.
Selection Criteria and Methodology Used To Determine Critical Habitat
As discussed above, to assist in determining which areas to
identify as critical habitat for the western yellow-billed cuckoo, we
focused our selection on areas known to have breeding or suspected
breeding. The western yellow-billed cuckoo is a migratory bird and
travels long distances between its wintering grounds in Central and
South America to its breeding grounds in Mexico and the Continental
United States. As a result, the western yellow-billed cuckoo continues
to be found in areas throughout its historical range in the west,
including areas which it may pass through or stopover during its
travels. Some of the areas it travels through or stops over at, may
include parks, golf courses, or other areas not containing the physical
or biological features essential to the conservation of the species.
Other areas, such as historically occupied breeding areas also contain
the physical or biological features for the species but are not
occupied for breeding. Currently known or suspected breeding areas were
selected as critical habitat because they contain the physical and
biological features essential to the conservation of the species
necessary for western yellow-billed cuckoos to produce offspring, have
ample foraging habitat, vegetative structure, environmental conditions,
and prey. By selecting breeding areas as critical habitat across the
western yellow-billed cuckoo's range, we will assist in conserving the
ability of the species to continue to occupy these areas. Moreover, the
breeding habitat is most likely to be essential to the conservation of
the species because of the importance of breeding for survival and
recovery of the species.
For the 2014 proposed rule, we reviewed information between 1998
and 2014 to determine whether the area was occupied at the time of
listing. For the 2020 revised proposed rule, we proposed additional
units we consider to have been occupied at the time of listing using
new data received through the 2017 breeding season. To further support
designation of these units, we used additional occupancy or nesting
data up until the 2020 breeding season.
We considered an area to be a breeding area if it was occupied by
the western yellow-billed cuckoo in one of the following two ways:
If western yellow-billed cuckoos were present in the area
on one or more days between June 1 and September 30 (considered to be
the primary breeding period) in at least two years between 1998 and
2014 (or later as described above); or
If western yellow-billed cuckoos were confirmed to be a
pair and nesting was observed (or there was evidence of nesting
behavior) in at least one year between 1998 and 2014, regardless of the
time of year. Thus, if the mated pair and evidence of nesting behavior
was discovered prior to June 1, the area was considered to be a
breeding area. Evidence of nesting behavior other than presence of an
active nest includes copulation, food carries (bird does not eat food)
to the same area, stick carries (nest building), multiple incidents of
alarm calls, fledgling (unable to fly) with adult, distraction display
(dropped wing), or pair exchanging multiple ``kowlp'' or alarm calls
(not coos) within 100 m (328 ft) of one another (Service and
Reclamation 2019).
In addition to these fundamental criteria established for breeding
areas across the DPS range, we identified additional criteria for areas
in the Southwest (Arizona and New Mexico). This was to take into
account the migratory nature of the species moving up from Mexico
through the Southwest, either to or from other breeding areas. The
additional criteria is as follows:
Areas in the Southwest were not considered to be breeding
areas if the area contains only two western yellow-billed cuckoo
records from different years, one of which was in September and no
pairs were detected. Although western yellow-billed cuckoos are still
breeding in September in Arizona, a September detection may or may not
signify breeding due to birds migrating south or moving between
breeding areas in Mexico.
As described above, to delineate the units of critical habitat, we
first looked to those areas being used during the breeding season. We
defined what we considered breeding areas as those areas that contained
seasonal occurrences of the western yellow-billed cuckoo between 1998
and 2014, during the timeframe in which breeding typically occurs for
the species in the United States (June-September). In limited
instances, this timeframe was expanded into May if the information
available confirmed breeding activity during this earlier timeframe.
These breeding season occurrences (location points where western
yellow-billed cuckoos were detected or breeding activity was confirmed)
were then plotted on maps along with information on vegetation cover,
topography, and aerial imagery. We then delineated habitat around that
location, as well as riparian habitat (including xeroriparian and
associated nonriparian habitat in the Southwestern drainages) upstream
and downstream from the occurrence location.
We used survey data and reports prepared by the USGS, USFS, NPS,
BLM, Reclamation, the Salt River Project, State wildlife agencies,
State natural diversity data bases, Cornell Lab of Ornithology (eBird
data), researchers, nongovernment organizations, universities, and
consultants, as well as available information in our files, to
determine the location of areas used for breeding within the
geographical area occupied by the western yellow-billed cuckoo at the
time of listing. As stated above, since 2014, we have become aware of
additional areas occupied by the species with evidence of breeding. We
still consider these areas to have been occupied by the species at the
time of listing, based on habitat conditions and occupancy of nearby
areas.
Because of the dynamic aspects of western yellow-billed cuckoo
habitat as a result of potential flooding, changing river locations,
and land uses, we used the active floodplain to identify where riparian
habitat occurs. When delineating the critical habitat boundary, we
included the surrounding contiguous suitable woodland habitat
(including along the stream course and in immediate uplands for
breeding, feeding, and sheltering) upstream and downstream until we
identified a major break in the vegetation. In many drainages, we
included these 0.25 miles (mi) (0.62 kilometers (km)) or more breaks in
habitat to combine one or more areas if we determined that: (1) The gap
in vegetation was within minor variances of this distance; (2) the
habitat on the other side of the gap was a continuation of similar or
better suitable habitat and included breeding occupancy as identified
above; or (3) the gap in vegetation was determined to be a consequence
of natural stream dynamics essential to the continuing function of the
hydrologic processes of the occupied areas.
By including breaks in habitat and combining areas, we allow for
regeneration of vegetation in these areas, which is often more
productive and provides additional food resources for the species and
allows for appropriate habitat conditions for use when dispersing to
other breeding locations. Blocks of suitable habitat often contain
openings that can change over time in dynamic riverine systems.
Naturally occurring gaps in habitat following flooding and scouring are
part of succession in riparian systems. In time, trees will regenerate
and fill these
[[Page 20849]]
openings. Suitable habitat consists of a variety of configurations that
include small patches of woodland interspersed with openings, large
expanses of woodland, narrow woodland, or a combination of different
configurations within the same drainage at any given time. Western
yellow-billed cuckoos often nest and forage near the edges and openings
that are part of the matrix of suitable habitat. Upland woodland
habitat immediately adjacent to river, stream, or drainages may be
composed of more xeroriparian or nonriparian trees.
In California, western yellow-billed cuckoos forage mainly within
the riparian woodland habitat or directly adjacent uplands when
breeding (Laymon 1980, pp. 6-8; Hughes 2015, p. 12). In New Mexico,
foraging activity has been observed in riparian habitat, immediately
adjacent tree-covered habitat (including salt cedar) and a variety of
upland habitats including desert scrub (Sechrist et al. 2009, pp. 24-
50). However, based on foraging behavior in other habitats in the West,
we expect the foraging distance to remain relatively close to the
nesting habitat. In addition, riparian corridors along streams,
especially in highly developed areas, can in some instances be very
narrow, highly degraded, and be characterized as a patchwork of
vegetated and nonvegetated areas.
Whether these habitat areas were included or combined into a single
larger unit depended on the extent of use of the areas by western
yellow-billed cuckoo, the relative amount of habitat gained if the
multiple patches were included or combined, the relationship of the
area to the overall designation, and the ease or complexity of removing
all nonhabitat from the designation. In addition, by combining these
areas, they then better meet an appropriate scale of analysis, given
the data as is described in our regulations for determining critical
habitat (50 CFR 424.12(b)(1)). For example, if a break in habitat
occurred between an area with high occupancy with sufficient habitat
and an area with low occupancy, the adjacent area may not have been
included. Alternatively, if two smaller areas with relatively low
occupancy were adjacent to each other, those areas most likely would
have been combined to form a single, larger, more manageable area.
To distinguish between the western yellow-billed cuckoo more
typical breeding habitat in riparian areas throughout the range from
breeding habitat recently found in more arid areas of the Southwest, we
use the terms ``rangewide breeding habitat'' and ``southwestern
breeding habitat,'' respectively (see Space for Individual and
Population Growth and for Normal Behavior below). In rangewide breeding
habitat, we generally selected low-gradient streams containing the
physical and biological features that were greater than 200 ac (81 ha))
in size. In considering the extent of each area, in some cases we
included the entire streambed as well as the presently vegetated areas.
Streams, especially those with intermittent flows, migrate within the
streambed depending on flows and other natural fluvial processes. The
vegetated areas within the streambed may also move to coincide with the
stream movement. As a result, the whole area may not be contiguously
vegetated. In these low-gradient rangewide riparian breeding habitats
(i.e., cottonwood, willow), areas that currently contain less than 200
ac (81 ha) of riparian habitat outside the Southwest were not selected.
However, in some areas of the Southwest, the physical or biological
features for areas used as breeding habitat vary from other locations
in the range of the western yellow-billed cuckoo. These areas occur in
Arizona and New Mexico and are associated with summer monsoonal
moisture and are smaller, narrower habitat areas that may extend into
upland areas (areas dominated by mesquite and oak) with higher
gradient. Selection of these areas depended on the amount of use of the
area by the species, the relative proximity to other selected areas,
the ecosystem uniqueness, or value to distribution of the area on the
landscape. As a result, these habitat sites were selected on a case-by-
case basis to provide for the variability of habitat use by the species
in these areas.
We have not included critical habitat units within Oregon or
Washington because the species has been extirpated as a breeder from
those States since at least the 1940s (Littlefield 1988, p. 2;
Washington Department of Fish and Wildlife 2013, pp. 200-201), and
recent observations of the species, although promising, have not
coincided for the most part with suitable breeding habitat and appear
to be dispersing but not breeding birds. We also did not include
occupied areas within Montana, Nevada, and Wyoming. The reasons for not
including critical habitat in these States is that sufficient areas
already have been identified within this designation, and these areas
do not meet our conservation strategy for designating critical habitat.
The conservation strategy focuses on areas with confirmed breeding. No
confirmed breeding has been identified in Montana or Wyoming. In
Nevada, the only known areas where the western yellow-billed cuckoo has
confirmed breeding is in the southern part of the State near the
borders of California and Arizona. These habitats are essentially the
same as those identified in the Southwest in Arizona and New Mexico,
but do not significantly contribute to population numbers for the
western yellow-billed cuckoo.
Sources of data reviewed or cited for this species in the
development of critical habitat include peer-reviewed articles,
information maintained by universities and State agencies, existing
State management plans, species-specific reports, habitat information
sources, climate change studies, incidental detections, and numerous
survey efforts conducted throughout the species' range, including but
not limited to the more recent information below: Corman and Magill
2000; Dockens and Ashbeck 2011a, 2011b; SRP 2011a, 2011b; Beason 2012;
Dettling and Seavy 2012; Gardali et al. 2012; Johnson et al. 2012;
McCarthy 2012; McNeil et al. 2012; Sechrist et al. 2012; Greco 2013;
IPCC 2013; Johnson et al. 2013; McNeil et al. 2013b; Pederson et al.
2013; Rohwer and Wood 2013; Scribano 2013; Sechrist et al. 2013;
Stromberg et al. 2013; Wallace et al. 2013; American Birding
Association 2014; Ault et al. 2014; Garfin et al. 2014; IPCC 2014;
Melillo et al. 2014; Orr et al. 2014; Stanek 2014; Villarreal et al.
2014; Dettling et al. 2015; Griffin 2015; Hughes 2015; MacFarland and
Horst 2015, 2017; Van Dooremolen 2015; WestLand Resources, Inc. 2015
a,b,c,d,e; Arizona Game and Fish Department 2018; Corson 2018;
Parametrix, Inc., and Southern Sierra Research Station 2019; RiversEdge
West 2019; Sferra et al. 2019; WestLand Resources, Inc. 2019; Cornell
Lab of Ornithology 2020 (eBird data); and Drost et al. 2020.
The amount and distribution of critical habitat that we are
designating will give the western yellow-billed cuckoo the opportunity
to potentially: (1) Maintain its existing distribution; (2) move
between areas depending on food, resource, and habitat availability;
(3) increase the size of the population to a level where it can
withstand potentially negative genetic or demographic impacts; and (4)
maintain its ability to withstand local- or unit-level environmental
fluctuations or catastrophes.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures or lands used as
[[Page 20850]]
parks or for agriculture, because such lands lack physical or
biological features necessary for the western yellow-billed cuckoo. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing and are considered to
still be occupied and that contain one or more of the physical or
biological features that are essential to support life-history
processes of the species. This variability is due to environmental
conditions and the dynamic nature of the habitat used by the western
yellow-billed cuckoo (see Species Information).
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 and on our
website at http://www.fws.gov/sacramento.
Final Critical Habitat Designation
We are designating 63 units as critical habitat for the western
yellow-billed cuckoo. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for the western yellow-billed cuckoo.
The areas we are designating as critical habitat are located in
Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah and
are described below. Table 1 shows the critical habitat units and the
approximate area of each unit. Land areas identified as ``Other''
include county, city, unclassified, or unknown land ownerships.
Table 1--Critical Habitat Units for the Western Yellow-Billed Cuckoo
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Tribal Other Total
Unit name Unit ---------------------------------------------------------------------------------------------------
AC HA AC HA AC HA AC HA AC HA
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA-AZ 1 Colorado River 1.................. 1 Excluded under section 4(b)(2) of the Act 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA-AZ 2 Colorado River 2.................. 2 Excluded under section 4(b)(2) of the Act 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 1 Bill Williams River.................. 3 Excluded under section 4(b)(2) of the Act 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 2 Alamo Lake........................... 4 Excluded under section 4(b)(2) of the Act 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 3 Hassayampa River..................... 5 12 5 ........ ........ ........ ........ 896 363 908 367
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 4 Agua Fria River...................... 6 1,802 729 235 95 ........ ........ 1,300 526 3,336 1,350
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 5 Upper Verde Creek.................... 7 2,367 958 546 221 ........ ........ 2,275 921 5,188 2,100
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 6 Oak Creek............................ 8 596 241 160 65 ........ ........ 1,475 597 2,231 903
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 7 Beaver Creek......................... 9 1,335 540 ........ ........ ........ ........ 747 302 2,081 842
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 8 Lower Verde/West Clear Ck............ 10 638 258 30 12 ........ ........ 1,466 593 2,134 864
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 9A Horseshoe Dam....................... 11 2,667 1,079 ........ ........ ........ ........ ........ ........ 2,667 1,079
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 9B Horseshoe Dam....................... 11 694 281 ........ ........ ........ ........ 88 55 782 316
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 10 Tonto Creek......................... 12 2,045 828 ........ ........ ........ ........ 1,135 459 3,181 1,287
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 11 Pinal Creek......................... 13 Excluded under section 4(b)(2) of the Act 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 12 Bonita Creek........................ 14 828 335 ........ ........ ........ ........ 101 41 928 375
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 13 San Francisco River................. 15 1,192 482 ........ ........ ........ ........ 135 55 1,327 537
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 14 Upper San Pedro River............... 16 17,957 7,267 1,903 770 ........ ........ 11,199 4,532 31,059 12,569
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 15 Lower San Pedro/Gila River.......... 17 2,695 1,091 2,280 922 ........ ........ 17,421 7,050 22,397 9,064
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 16 Sonoita Creek....................... 18 ........ ........ 926 375 ........ ........ 1,563 633 2,488 1,007
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 17 Upper Cienega Creek................. 19 4,630 1,874 574 232 ........ ........ ........ ........ 5,204 2,106
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 18 Santa Cruz River.................... 20 505 204 4 2 ........ ........ 9,029 3,654 9,538 3,860
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 19 Black Draw.......................... 21 891 360 134 54 ........ ........ 570 231 1,595 646
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 20 Gila River 1........................ 22 778 315 215 87 ........ ........ 9,547 3,863 10,540 4,266
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 21 Salt River.......................... 23 502 203 ........ ........ ........ ........ 79 32 581 235
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 22 Lower Cienega Creek................. 24 ........ ........ 759 307 ........ ........ 1,601 648 2,360 955
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 20851]]
AZ 23 Blue River.......................... 25 1,025 415 ........ ........ ........ ........ ........ ........ 1,025 415
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 24 Pinto Creek South................... 26 368 149 ........ ........ ........ ........ 5 2 373 151
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 25 Aravaipa Creek...................... 27 622 252 116 47 ........ ........ 2,199 890 2,937 1,189
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 26 Gila River 2........................ 28 1,895 767 204 83 ........ ........ 3,736 1,512 5,836 2,362
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 27 Pinto Creek North................... 29 415 168 ........ ........ ........ ........ 12 5 427 173
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 28 Mineral Creek....................... 30 1 http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.
Unit 1: CA/AZ-1 Colorado River 1; Imperial, Riverside, and San
Bernardino Counties, California, and Yuma and La Paz Counties, Arizona.
Critical habitat Unit CA/AZ-1 was proposed as containing 82,138 ac
(33,240 ha) including a 150-mi (242-km) stretch of the Colorado River
in Arizona and California. We have excluded the entire unit from the
final designation (see Exclusions). A description and map of this unit
is maintained in supporting information for this designation (Service
2020b, entire).
Unit 2: CA/AZ-2 Colorado River 2; San Bernardino County, California
and Mohave County, Arizona.
Critical habitat unit CA/AZ-2 is 23,589 ac (9,546 ha) in extent. It
is a 23-mi (37-km)-long continuous segment of the Colorado River
between the Interstate 40 Bridge, including Topock Marsh in San
Bernardino County, California, and upstream to the Arizona-Nevada
border in Mohave County, Arizona. We have excluded the entire unit from
the final critical habitat designation (see Exclusions). A description
and map of this unit is maintained in supporting information for this
designation (Service 2020b, entire).
Unit 3: AZ-1 Bill Williams; Mohave and La Paz Counties, Arizona.
Critical habitat unit AZ-1 is 3,389 ac (1,371 ha) in extent and is
a continuous segment of the Bill Williams River, a tributary to the
Colorado River, from the upstream end of Lake Havasu upstream to
Castaneda Wash in Mohave and La Paz Counties, Arizona. We have excluded
the entire unit from the final critical habitat designation (see
Exclusions). A description and map of this unit is maintained in
supporting information for this designation (Service 2020b, entire).
Unit 4: AZ-2 Alamo Lake; Mohave and La Paz Counties, Arizona.
Critical habitat unit AZ-2 totals 2,793 ac (1,130 ha) in extent and
is a continuous stream made up of a 6-mi (10-km)-long continuous
segment of the Santa Maria River and a 3-mi (5-km)-long continuous
segment of the Big Sandy River that feeds into the Santa Maria River
above Alamo Lake State Park in Mohave and La Paz Counties, Arizona. We
have excluded the entire Unit from the final critical habitat
designation (see Exclusions). A description of this unit is maintained
in supporting information for this designation (Service 2020b, entire).
Unit 5: AZ-3 Hassayampa River; Maricopa County, Arizona.
Critical habitat unit AZ-3 is 908 ac (367 ha) in extent and is an
approximately 7-mi (11-km)-long continuous segment of the Hassayampa
River in the vicinity of Wickenburg in Maricopa County, Arizona.
Approximately 12 ac (5 ha) is in Federal ownership, and 896 ac (363 ha)
is in other ownership. This unit is considered to have been occupied at
the time of listing. Western yellow-billed cuckoos occupy and nest at
this site annually during the breeding season (Corman and Magill 2000,
pp. 42-43; Kondrat-Smith 2015-2016, entire; Cornell Lab of Ornithology
2020 (eBird data); Service 2020c). This unit is part of the core area
as identified in our conservation strategy for designating critical
habitat for the western yellow-billed cuckoo. The unit provides the
habitat component provided in PBF 1 and the prey component in PBF 2.
Hydrologic processes, in natural or altered systems, that provide for
maintaining and regenerating breeding habitat as identified in PBF 3
occur within this unit but depend on river flows and flood timing. The
site also provides a movement corridor and migratory stop-over habitat
for western yellow-billed cuckoos.
Much of the private land in this revised proposed unit is within
The Nature Conservancy's (TNC) and Maricopa County Parks and Recreation
Department's Hassayampa River Preserve, which is occupied by yellow-
billed cuckoos during the breeding season. Preserve management requires
management of cottonwood and willow habitat to control nonnative
species and maintenance of fencing to prevent trespass livestock from
damaging habitat (Maricopa County Parks and Recreation Department 2018,
pp. 8, 10). Western yellow-billed cuckoos occupy and nest at this site
during the breeding season annually Habitat is gallery woodland with
cottonwood, willow, and mesquite (Kondrat-Smith 2015, entire). Very
little tamarisk is present in much of the site because the river scours
out frequently, preventing tamarisk from becoming established.
Unit 6: AZ-4, Agua Fria River; Yavapai County, Arizona.
Critical habitat unit AZ-4 is 3,336 ac (1,350 ha) in extent and is
made up of a continuous segment of the Agua Fria River (called Ash
Creek above the confluence with Sycamore Creek), which is joined by the
Sycamore Creek tributary. Other portions of tributaries that are part
of this unit include Silver Creek, Indian Creek, and Little Ash Creek.
Together they form a continuous unit located approximately 2.5 mi (4.0
km) east of Cordes Lakes in Yavapai County, Arizona. Approximately
1,802 ac (729 ha) is in Federal ownership; 235 ac (95 ha) is in State
ownership; and 1,300 ac (526 ha) is in other ownership. This unit is
considered to have been occupied at the time of listing. Western
yellow-billed cuckoos occupy and nest at this site annually during the
breeding season (Corman and Magill 2000, pp. 37, 40, 47; Prager and
Wise 2013, 2014, 2015, 2016, 2017, 2018, 2019, entire). This unit is
part of the core area as identified in our conservation strategy for
designating critical habitat for the western yellow-billed cuckoo. BLM
management to reduce off-road vehicle and grazing pressure has resulted
in gradual improvement to riparian habitat on its Agua Fria National
Monument (Prager and Wise 2019, pp. 2-4). Periodic floods on the Agua
Fria River scour brushy understory and encourage recruitment of
cottonwood and willows. Other species include sycamore, ash, walnut,
mesquite, acacia, juniper,
[[Page 20855]]
tamarisk, and adjacent mesquite bosque. The unit provides the habitat
component provided in PBF 1 and the prey component in PBF 2. Hydrologic
processes, in natural or altered systems, that provide for maintaining
and regenerating breeding habitat as identified in PBF 3 occur within
this unit but depend on river flows and flood timing. The site also
provides migration stop-over habitat for western yellow-billed cuckoos
moving farther north. Altered hydrology has caused the introduction and
spread of nonnative tamarisk, resulting in reduced quality of riparian
habitat. Although tamarisk is not as desirable as native habitat, it
may contribute toward habitat suitability in areas where the native
tree density can no longer be sustained.
Unit 7: AZ-5, Upper Verde River; Yavapai County, Arizona.
Critical habitat unit AZ-5 is 5,188 ac (2,100 ha) in extent. We
have excluded approximately 272 ac (110 ha) of State land associated
with the AGFD's Upper Verde River Wildlife Area and 191 ac (77 ha) of
Yavapai-Apache tribal land from this unit (see Exclusions). This unit
extends from approximately 0.6 mi (0.9 km) east of State Route 89 to I-
17 in Yavapai County. Short reaches of Granite Creek, Peck's Lake and
Tavasci Marsh, and Sycamore Creek are also included in this unit.
Approximately 2,367 ac (958 ha) is in Federal ownership; 546 ac (221
ha) is in State ownership; and 2,275 ac (921 ha) is in other ownership.
This unit is considered to have been occupied at the time of listing.
Western yellow-billed cuckoos occupy and nest at numerous locations
throughout this unit (Holmes et al. 2008, pp. 13, 16, 18-20; Johnson
and Rakestraw 2016, pp. 6-7; AGFD 2017, entire; AGFD 2019, entire;
Jacobs Engineering 2019, pp. 2-9; Prescott National Forest, 2019,
entire; SRP 2019c, entire; Cornell Lab of Ornithology 2020 (eBird
data); National Audubon Society 2020f; Service 2020c, entire). This
unit is part of the core area as identified in our conservation
strategy for designating critical habitat for the western yellow-billed
cuckoo. The unit provides the habitat component provided in PBF 1 and
the prey component in PBF 2. Hydrologic processes, in natural or
altered systems, that provide for maintaining and regenerating breeding
habitat as identified in PBF 3 occur within this unit but depend on
river flows and flood timing. This site also provides a movement
corridor and migratory stop-over habitat for western yellow-billed
cuckoos.
Habitat is primarily cottonwood and willow gallery riparian forest,
and may contain other species such as ash, sycamore, mesquite,
boxelder, walnut, juniper, alder, desert willow, hackberry, tamarisk,
and Russian olive, often with adjacent mesquite woodland (Agyagos 2016,
entire, Prescott National Forest 2019, entire). The Upper Verde State
Wildlife and Tuzigoot and IBAs lie within this unit (National Audubon
Society 2016b, entire; 2020a, entire; Arizona Important Bird Areas
(IBA) 2020c, entire).
Unit 8: AZ-6 Oak Creek; Yavapai and Coconino Counties, Arizona.
Critical habitat unit AZ-6 is 2,231 ac (903 ha) and is a continuous
segment of Oak Creek from the State Highway 179 Bridge within the City
of Sedona in Coconino County, Arizona, downstream to the confluence
with the Verde River in Yavapai County, Arizona. Approximately 596 ac
(241 ha), is in Federal ownership; 160 ac (65 ha) is in State
ownership; and 1,475 ac (597 ha) is in other ownership. This unit is
considered to have been occupied at the time of listing and is occupied
by western yellow-billed cuckoos during the breeding season (Corman and
Magill 2000, p. 42; Holmes et al. 2008, pp. 13, 16, 18-20; Agyagos
2016, entire, AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird
data); Service 2020c). This unit is part of the core area as identified
in our conservation strategy for designating critical habitat for the
western yellow-billed cuckoo. The unit provides the habitat component
provided in PBF 1 and the prey component in PBF 2. Hydrologic
processes, in natural or altered systems, that provide for maintaining
and regenerating breeding habitat as identified in PBF 3 occur within
this unit but depend on river flows and flood timing. The site also
provides a movement corridor and migratory stop-over habitat for
western yellow-billed cuckoos.
This unit contains the Lower Oak Creek Important Bird Area (IBA),
where western yellow-billed cuckoos are identified as a breeding bird
(National Audubon Society 2016a, entire). Vegetation is a mix of
riparian gallery of cottonwood, willow, sycamore, and mesquite and
hackberry woodland (National Audubon Society 2016a, entire). The reach
from Cornville to the confluence with the Verde River contains the best
broad[hyphen]valley floodplain and mesquite bosque habitat on Oak Creek
(Agyagos 2016, entire). The Oak Creek confluence with the Verde River
consists of an approximately 98-ft (30-m)-wide riparian area, with
mesquite habitat adjacent to the riparian vegetation (Johnson and
Rakestraw 2016, p. 6). Sycamore and boxelder are the dominant trees at
the confluence, with scattered cottonwood and some willow and tamarisk
trees.
Unit 9: AZ-7 Beaver Creek; Yavapai County, Arizona.
Critical habitat unit AZ-7 is 2,081 ac (842 ha) in extent and is a
23-mi (37-km)-long continuous segment of Beaver Creek from the
confluence with the Verde River near Camp Verde upstream to above the
Town of Rimrock in Yavapai County, Arizona. We have excluded
approximately 1 ac (http://www.regulations.gov.
In our screening memo, which was based on our 2013 and 2019 review
of potential economic impacts and comments received on our analysis
established that the primary expected impact from the critical habitat
designation would be the additional analysis to consider adverse
modification of critical habitat (and not just jeopardy). While
additional analysis for critical habitat in a consultation will require
time and resources by both the Federal action agency and the Service,
in most circumstances, these additional analyses would be predominantly
administrative in nature and would not incur significant costs. Our
screening analysis also includes discussion of other incremental
impacts that may be triggered by this action that in turn may result in
costs or benefits--such as, additional permitting requirements or
changes in public perception. However, those impacts are uncertain, and
some of the data necessary for a full assessment of those costs and
benefits are lacking. We recognize that changes in land value are
possible. But because the magnitude and timing are uncertain, the best
assessment of these possible impacts is to conduct a bounding analysis
of the total possible land value costs and benefits of developable land
within the critical habitat designation.
The critical habitat designation for the western yellow-billed
cuckoo includes 63 units in 7 western States: Arizona, California,
Colorado, Idaho, New Mexico, Texas, and Utah. A total of 298,845 ac
(120,939 ha) is being designated after excluding or removing 194,820 ac
(78,840 ha). Approximately 35 percent of the proposed total acreage is
Federal land, 11 percent is State land, and 54 percent is privately
owned or owned by local government entities. No Tribal lands are being
designated. All critical habitat units are considered to be occupied.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect would be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on Tribal or private lands. However, all
Tribal lands have been excluded and based on coordination efforts State
and local agencies, the cost to private entities within these sectors
is expected to be relatively minor (administrative costs of less than
$5,200 per formal consultation effort) and, therefore, would not be
significant.
The probable incremental economic impacts of the western yellow-
billed cuckoo critical habitat designation are expected to be limited
to additional administrative effort, as well as minor costs of
conservation efforts resulting from a small number of future section 7
consultations. This low level of impacts is anticipated because, given
that the critical habitat is occupied by the species, actions that may
adversely modify the critical habitat would also likely jeopardize the
continued existence of the species; as a result, other than
administrative costs, incremental economic impacts of critical habitat
designation over and above impacts from consulting for jeopardy are
unlikely. At approximately $5,200 or less per formal consultation, in
order to reach the threshold of $100 million of incremental
administrative impacts in a single year, Federal agencies would need to
undertake more than 20,000 formal consultations in a single year. In
our 2020 economic screening memo, we identified 16 formal consultations
initiated for the western yellow-billed cuckoo since listing. The
resulting incremental economic burden is estimated to be less than
$74,000 in a given year (IEc 2019, entire). This estimate calculated
the administrative cost (staff time) the Federal agency would need to
expend on its analysis of adverse modification of critical habitat for
each consultation. As discussed above, we recognize that changes in
land value are possible. Because the magnitude and timing are
uncertain, we conducted a bounding analysis of the per-acre land values
for undeveloped properties within the
[[Page 20874]]
designation that may be subject to development pressure in the
foreseeable future. Public perception of the effect of critical habitat
may diminish land values by some percent of these total values. Data
limitations prevent us from estimating the size of this percent
reduction. However, any diminishment in property value cannot exceed
the total value of the property. The bounding analysis indicates that
approximately 287 acres of developable land are located within census
tracts overlapping the proposed designation with population densities
greater than 1,000 people per square mile. If public perception causes
the value of critical habitat acres to be diminished, these acres are
those most likely to be affected. Due to existing data limitations
regarding the probability that such effects will occur, and the likely
degree to which property values will be incrementally affected by this
designation (above and beyond potential perceptional effects resulting
from the presence of the cuckoo and the flycatcher, as well as
flycatcher critical habitat), we are unable to estimate the magnitude
of perception-related costs resulting from this designation. However,
the cost cannot exceed the total value of affected properties. Our
bounding analysis estimates the total value of developable land within
the proposed critical habitat to be $20.3 million. Therefore, we have
concluded that the future probable incremental economic impacts based
on the value of developable land in the vicinity of the proposed
designation, the combined total of section 7 and other possible costs
and benefits are unlikely to exceed $100 million in any single year,
and impacts to any specific geographic area or sector as a result of
this critical habitat designation are also unlikely.
Exclusions
Exclusions Based on Economic Impacts
The Service considered the economic impacts of the critical habitat
designation as described above. Based on this information, the
Secretary has determined not to exercise his discretion to exclude any
areas from this designation of critical habitat for the western yellow-
billed cuckoo based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), national-security or
homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2),
the Service must consider impacts on national security, including
homeland security, on lands or areas not covered by section
4(a)(3)(B)(i). Accordingly, the Policy on Exclusions makes clear that
we will always consider for exclusion from the designation areas for
which DoD, Department of Homeland Security (DHS), or another Federal
agency has requested exclusion based on an assertion of national-
security or homeland-security concerns (see Policy on Exclusions (81 FR
7226)).
We cannot, however, automatically exclude requested areas. First,
when we adopted the policy on exclusion, we explained that, when DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, it must
provide a reasonably specific justification of an incremental impact on
national security that would result from the designation of that
specific area as critical habitat. That justification could include
demonstration of probable impacts, or a delay in training or facility
construction, as a result of compliance with section 7(a)(2) of the
Act. If the agency requesting the exclusion does not provide us with a
reasonably specific justification, we will contact the agency to
recommend that it provide a specific justification or clarification of
its concerns relative to the probable incremental impact that could
result from the designation.
Second, even if the agency provides a reasonably specific
justification, the result is not that we automatically exclude the
area, but rather that we undertake an exclusion analysis to determine
whether or not to exclude the area. In undertaking that exclusion
analysis, we will defer to the expert judgment and give great weight to
national-security and homeland-security concerns of DoD, DHS, or
another Federal agency as outlined in our policy (81 FR 7226).
Department of Army--Yuma Proving Grounds and Department of Air Force--
Luke Air Force Base
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the DoD where a national-security impact
might exist. We received comments from the Department of the Army and
Department of the Air Force requesting exclusion of areas used by the
Army and Air Force for training operations based on national security
or other military operations. The comments were from the Yuma Proving
Grounds (Department of the Army 2014a, entire) and the Luke Air Force
Base (Department of the Air Force 2014, entire) concerning airspace
above critical habitat; however, the actions described by the two
installations (overflight of critical habitat areas) do not directly or
indirectly affect the physical or biological features of critical
habitat for the western yellow-billed cuckoo; thus, they would not
require consideration of adverse modification of the critical habitat.
Consequently, national security activities carried out by the Army
operations at Fort Yuma or operations by Luke Air Force Base will not
be disrupted as a result of designation of critical habitat. Therefore,
we are including these areas in our critical habitat designation.
Department of Army--Fort Huachuca
We also received comments from the U.S. Army installation at Fort
Huachuca requesting that areas outside the installation in Unit 16 (AZ-
14) that includes the San Pedro Riparian National Conservation Area
(SPRNCA) be excluded from the final designation (U.S. Department of the
Army 2014b, entire). Unit 16 is managed by the BLM and composed of
Federal, State, and private lands and not owned by the DoD or part of
the lands managed under the Fort Huachuca's INRMP or used for training.
The Army's rationale for the requested exclusion was that any
additional restrictions to ground water pumping and water usage could
affect their ability to increase staffing when needed or carry out
missions critical to national security. The Army also stated that
designation of lands within the SPRNCA would increase its regulatory
burden and disrupt its operations related to national security but
provided no specific examples or information supporting or explaining
these claims either through its comments or during our meetings with
them after the revised proposed rule was issued. The Army pointed to
its continued land stewardship actions and its commitment to protecting
natural resources on the base.
As stated above, the lands within Unit 16 (AZ-14) are primarily
owned and managed by BLM. Declining base flow and habitat loss in the
San Pedro River due anthropogenic factors, drought, and climate change
has long been a concern
[[Page 20875]]
to landowners and communities in and near this unit. In addition, the
November 2013 Fort Huachuca Revised Biological Assessment (BA) on its
operations, titled Programmatic Biological Assessment for Ongoing and
Future Military Operations and Activities at Fort Huachuca, Arizona,
(U.S. Department of the Army 2013, p. 5-28), states that ``Fort-
attributable groundwater use is unlikely to affect the yellow-billed
cuckoo (proposed for listing at the time) or its habitat where the
species is known to occur in the SPRNCA, Babocomari Cienega, or the
lower San Pedro River. . . .'' The Fort subsequently states that a
modeled decline in baseflow to the lower Babocomari River downstream
could exist by 2030 (U.S. Department of the Army 2013, p. 5-28). The BA
concludes there will be no adverse effect on western yellow-billed
cuckoo or its habitat from Fort Huachuca's operational actions or
ground water pumping. Within the Service's subsequent 2014 biological
and conference opinion under section 7 of the Act, we issued a
conference report concluding that Fort Huachuca's operational
activities and groundwater pumping as related to the SPRNCA, Babocomari
Cienega, the lower San Pedro River, or the lower Babocomari River were
not likely to adversely affect western yellow-billed cuckoo (NLAA)
(Service 2014c, pp. 300-306).
However, although the Fort's water conservation measures are
intended to avoid, minimize, and/or offset the effects of water use to
the Upper San Pedro River Unit, they also do not constitute a western
yellow-billed cuckoo conservation plan or prevent water use or habitat
loss by other entities affecting this unit. The Fort's water
conservation actions are not sufficient to protect the San Pedro River
critical habitat from ongoing and future actions that threaten to
reduce flow and western yellow-billed cuckoo suitable habitat in this
large unit. The Fort does not manage or control lands covered by this
unit and ground water use is only one component of western yellow-
billed cuckoo PBFs. The Service has engaged in several Section 7
consultations on proposed actions that may affect western yellow-billed
cuckoo habitat but for which the Fort has no management authority
including herbicide treatment, fire management, grazing, exotic plant
control, mesquite (breeding habitat) removal, recreation, off-road
vehicle use, development, and other proposed actions that may result in
loss of water or suitable habitat. We will continue to engage in future
consultations that may affect habitat in this active unit. Given that
the Fort's groundwater use has been determined to not adversely affect
western yellow-billed cuckoos or their habitat, it is unlikely that
there would be future restrictions on the Fort's groundwater use
resulting from the designation of critical habitat and accordingly, we
are not considering the area for exclusion from this final rule due to
national security. Designating critical habitat may actually help
retain base flow and western yellow-billed cuckoo habitat, through
section 7 consultation with other entities affecting this unit.
Unit 1 (CA-AZ 1), Unit 44 (AZ-32), Unit 45 (AZ-33), Unit 52 (AZ-40),
Unit 20 (AZ-18), Unit 61 (AZ-49), Unit 16 (AZ-14), and Unit 21 (AZ-
19)--U.S. Customs and Border Protection (CBP)/Department of Homeland
Security (DHS)--U.S./Mexico Border Lands
We received a request from the U.S. Customs and Border Protection
(CBP) under the Department of Homeland Security (DHS) that the
Roosevelt Reservation portion of critical habitat along the U.S./Mexico
border be considered for exclusion under section 4(b)(2) of the Act for
national security reasons.
The Roosevelt Reservation is a 60-ft (18 m) wide strip of land
owned by the Federal Government along the United States side of the
U.S./Mexico border in California, Arizona, and New Mexico (DHS 2020,
entire). No critical habitat was proposed along the border in New
Mexico, while the border area in Texas is not part of the Roosevelt
Reservation (Proclamation 758 1907, entire). DHS and CBP requested an
exclusion for portions of the Roosevelt Reservation located in Yuma,
Pima, Santa Cruz, and Cochise counties in Arizona. Their exclusion
request identified Unit 1 (CA-AZ 1), Unit 44 (AZ-32), Unit 45 (AZ-33),
Unit 52 (AZ-40), Unit 20 (AZ-18), Unit 61 (AZ-49), Unit 16 (AZ-14), and
Unit 21 (AZ-19). The area being excluded totals 113 ac (46 km). All the
units are considered to have been occupied at the time of listing and
are currently occupied. Unit 1 (CA-AZ 1) has been excluded due to
management from the LCR MSCP (see Exclusions Private or Other Non-
Federal Conservation Plans Related to Permits Under Section 10 of the
Act). Each of these units extend for miles north of the border beyond
the 60-ft (18 m) wide Roosevelt Reservation (see Unit Descriptions).
The following analysis addresses only the 60-ft (18-m) wide Roosevelt
Reservation along the border and not additional portions of the units.
The U.S. Border Patrol (USBP), a law enforcement component of CBP,
uses the Roosevelt Reservation for border security operations. The
mission of the CBP is ``To safeguard America's borders thereby
protecting the public from dangerous people and materials while
enhancing the Nation's global economic competitiveness by enabling
legitimate trade and travel.'' The Roosevelt Reservation contains
border security related infrastructure consisting of border barrier,
lighting, a patrol road, and cleared vegetation of the 60-ft (18-m)
wide reservation. USBP conducts routine patrols and law enforcement
activities between the land ports of entries such as intervention of
drug smuggling, human trafficking, and tracking of illegal immigrant
foot traffic. Border enforcement activities can occur along the road
bordering the barrier (within the 60-ft (18-m) Roosevelt Reservation)
and outside of the Roosevelt Reservation, as needed for enforcement.
The Roosevelt Reservation has historically been used for border
enforcement actions in Arizona for decades and includes an existing
patrol road in most areas. New border barrier is being constructed in
portions of the Roosevelt Reservation in Arizona where there has
historically not been barrier. These new areas of border barrier
include the clearing of vegetation within the 60-ft (18-m) wide
Roosevelt Reservation, construction of a patrol road paralleling the
barrier, lighting, and detection technology. A significant amount of
water, which often flows through these drainages important to the
western yellow-billed cuckoo, is being extracted from local sources
along the border to mix with cement in border wall construction. Upon
completion of construction, these areas of new barrier along with
existing areas of barrier will be used for border enforcement actions
by USBP for the foreseeable future. DHS states that they will continue
to maintain and clear vegetation within the Roosevelt Reservation to
ensure a safe operating environment for agents patrolling and enforcing
border laws on the border. These border-security activities are not
compatible with riparian habitat. As a result, since designating the
60-ft (18-m) wide Roosevelt Reservation as critical habitat for the
western yellow-billed cuckoo would interfere with on-going border
security operations, DHS states that the 60-ft (18-m) wide Roosevelt
Reservation should be excluded because of national security reasons.
DHS and CBP currently have the authority to conduct work within the
60-ft (18-m) Roosevelt Reservation to
[[Page 20876]]
secure the border under existing waivers of environmental laws,
including the ESA. These waivers cover the construction and maintenance
of discrete border infrastructure projects, as issued by the Secretary
of the Interior. Congress directed DHS to achieve and maintain
operational control of the U.S. Mexico border (Secure Fence Act of
2006, Pub. L. 109-367, section 2, 120 Stat. 2638 (Oct. 26, 2006) (8
U.S.C. 1701 note)). Congress further provided DHS with a number of
authorities to carry out DHS's border security mission (85 FR 9794,
February 20, 2020). One of these authorities, under section 102 of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996, as amended, authorized DHS to waive laws where necessary to
ensure the expeditious construction of border infrastructure in areas
of high illegal entry (IIRIRA 2019). Per section 102 of IIRIRA, the
Secretary of Homeland Security has waived certain laws, regulations,
and other legal requirements in order to ensure the expeditious
construction of barriers and roads and achieve operational control of
the border. As such, review of specific federally funded projects
through the section 7 consultation process under the Endangered Species
Act is not required, although DHS coordinates with the Service
concerning actions along the 60-ft (18-m) Roosevelt Reservation, where
applicable.
Currently, CBP is authorized to access the project area; remove
vegetation; extract and use water; and create, maintain, and use roads,
barrier fence, drainage, and lighting, as well as conduct operations
involved with homeland security. Actions pertaining to the current
building, maintenance, and operation of the border infrastructure are
considered to have negative effects to western yellow-billed cuckoo
individuals and habitat, based on the western yellow-billed cuckoo's
behaviors and biological needs. Some of the actions CBP takes within
the Roosevelt Reservation may also affect western yellow-billed cuckoos
immediately outside the Roosevelt Reservation, and include actions such
as but not limited to: Drainage design, gate placement and operations,
and lighting footprint.
Benefits of Inclusion--U.S./Mexico Border Lands
An important benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners and
the public regarding the potential conservation value of an area, and
it may help focus management and conservation efforts on areas of high
value for certain species. Any information about the western yellow-
billed cuckoo that reaches a wide audience, including parties engaged
in conservation activities, is valuable and would continue to encourage
collaboration between DHS, CBP, and USBP and the Service.
The border area is important because it spans riparian areas and
associated drainages that run north-south between Mexico and the U.S.
These corridors are migratory routes of not only western yellow-billed
cuckoos, but also many other migratory birds. Including the Roosevelt
Reservation provides opportunities for education and public awareness
concerning migratory birds' needs, particularly those of the western
yellow-billed cuckoo and potentially encourages future restoration and
minimization of adverse effects in areas designated. This may lead to
retaining existing trees, allowing for successional development of
future riparian habitat, and provide for naturally functioning
drainages to maintain or restore the environmental qualities of the
sites. Retaining hydrological processes that allow for drainages to
fully function naturally will sustain riparian habitat upstream and
downstream of the Roosevelt Reservation. Inclusion of these border
areas delineates geographically important habitat for this species that
may otherwise remain unknown by agencies and organizations working
along the border.
In addition, inclusion of western yellow-billed cuckoo habitat
within the critical habitat designation would be consistent with other
designations of critical habitat for other listed species along the
border without exclusions. The border includes designated critical
habitat for the jaguar (Panthera onca), Yaqui chub (Gila purpurea),
beautiful shiner (Cyprinella formosa), Yaqui catfish (Ictalurus
pricei), Sonoyta mud turtle (Kinosternon sonoriense longifemorale) and
Sonora chub (Gila ditaenia).
However, because of the waiver discussed above, which waives ESA
requirements, the benefits of including this area within the
designation are relatively low, given that section 7 consultations are
unlikely to occur.
Benefits of Exclusion--U.S./Mexico Border Lands
The benefits of excluding the 60-ft (18-m) Roosevelt Reservation
area are significant. CBP has been tasked with enforcing national
security along border areas of the United States. The Roosevelt
Reservation and infrastructure within the area is a key component in
assisting CBP to conduct its normal operations and fulfilling their
national security mission along the southern border of the United
States. CBP has identified the following activities and infrastructure
occurring within the Roosevelt Reservation: Barrier fencing, lighting
systems, enforcement zones, patrol roads, cleared vegetation, vehicular
patrol operations, ongoing border barrier construction and maintenance,
and illegal immigrant foot traffic and trespass. The designation of the
Roosevelt Reservation may reduce CBP's availability of unencumbered
space to support its operations. By excluding the 60-ft (18-m)
Roosevelt Reservation the CBP would be able to fulfill its mission of
securing the border and conduct necessary border patrol operations as
well as construct any necessary border security infrastructure.
Excluding the Roosevelt Reservation from western yellow-billed
cuckoo critical habitat will enable CBP to continue actions without a
need to consult on the possible effects of adverse modification to
critical habitat. CBP states that excluding critical habitat will also
reduce the chances that they will need to obtain additional waivers
that they might not otherwise need for border infrastructure projects.
By excluding the Roosevelt Reservation, we will maintain our
working relationship with the DHS/CBP. The Department of the Interior
(DOI), Department of Agriculture (USDA), and DHS entered into a
Memorandum of Understanding (MOU) in 2006 (DHS-DOI-USDA 2006, entire).
The MOU is intended to provide consistent goals, principles, and
guidance related to DHS, DOI, and USDA working together in fulfilling
their mandated responsibilities. The MOU sets goals for communication,
cooperation, and resolving conflicts while allowing for border security
operations such as: Law enforcement operations; tactical infrastructure
installation; utilization of roads; and minimization and/or prevention
of significant impact on or impairment of natural and cultural
resources, including those protected under the Act.
Excluding the Roosevelt Reservation from the designation of
critical habitat so that CBP border activities can continue could also
have several positive effects to western yellow-billed cuckoos. For
example, border infrastructure and patrolling could help prevent
unauthorized trespass and resource destruction to areas adjacent to the
border that may impact western yellow-billed cuckoo habitat.
[[Page 20877]]
Benefits of Exclusion Outweigh Benefits of Inclusion--U.S./Mexico
Border Lands
The benefits of including lands in a critical habitat designation
include educating landowners, agencies, tribes, and the public
regarding the potential conservation value of an area, as well as
potentially helping to focus conservation efforts on areas of high
value for certain species and maintaining consistency with other areas
being designated for other listed species within the Roosevelt
Reservation. Because DHS and CBP have obtained a waiver of ESA
requirements, the benefits of including the area as critical habitat is
minimized. Because the Roosevelt Reservation only extends 60 ft (18 m)
along the border, the amount of area associated with the exclusion is
small and the overwhelming majority of critical habitat that is being
designated adjacent to the Roosevelt Reservation remains in the final
designation, allowing for the educational benefits to remain. As a
result, the educational benefits are small.
The benefits of exclusion of the Roosevelt Reservation are
significant. We base this on several reasons. Firstly, the exclusion
will allow DHS to conduct its mission of securing the border unimpaired
from the designation of critical habitat for the western yellow-billed
cuckoo. Secondly, the exclusion will further our partnership with DHS
and allow for coordination of both the Service's and DHS's
responsibilities. We view this as a significant benefit of exclusion.
Thirdly, exclusion would allow for CBP to continue conducting border
infrastructure and patrolling thereby helping to prevent unauthorized
trespass and resource destruction to areas adjacent to the Roosevelt
Reservation that may affect western yellow-billed cuckoo habitat. We
reviewed and evaluated the benefits of inclusion and benefits of
exclusion for the 60-ft (18-m) Roosevelt Reservation for the DHS to
conduct its national security operations and have determined that the
benefits of excluding outweigh the benefits of including the areas.
Exclusion Will Not Result in Extinction of the Species--U.S./Mexico
Border Lands
Because of the 2006 MOU, CBP has a track record of communicating
with the Service and of remaining committed to seeking solutions to
reduce harm along the border to listed species and their habitat,
including the western yellow-billed cuckoo. In addition, if the
operation waivers are discontinued, DHS and CBP would be required to
consult with the Service under section 7 of the Act. These
consultations would need to consider the effects on the species and its
habitat, and could be more numerous, complex, or costly if the areas
are included within the critical habitat designation. We have
determined that exclusion of the 60-ft (18-m) Roosevelt Reservation
lands from the critical habitat designation will not result in the
extinction of the western yellow-billed cuckoo. Accordingly, we have
determined that areas totaling 12 ac (5 ha) within the (60-ft (18-m))
Roosevelt Reservation in Unit 44 (AZ-32) (0.6 ac (0.24 ha)), Unit 45
(AZ-33) (0.26 ac (0.1 ha)), Unit 52 (AZ-40) (0.67 ac (0.27 ha)), Unit
20 (AZ-18) (4 ac (2 ha)), Unit 61 (AZ-49) (1 ac (0.4 ha)), Unit 16 (AZ-
14) (0.6 ac (0.24 ha)), and Unit 21 (AZ-19) (4 ac (2 ha)), are excluded
under subsection 4(b)(2) of the Act because the benefits of exclusion
outweigh the benefits of inclusion and will not cause the extinction of
the species.
Consideration of Other Relevant Impacts
When identifying the benefits of inclusion for an area, we consider
other relevant impacts, such as the additional regulatory benefits that
the area would receive due to the protection from destruction or
adverse modification as a result of actions with a Federal nexus, the
educational benefits of mapping essential habitat for recovery of the
listed species, and any benefits that may result from a designation due
to State or Federal laws that may apply to critical habitat. The
western yellow-billed cuckoo migrates and is present in the U.S. mainly
during its breeding season (generally May through September).
Regardless of the time of year, proposed actions with a Federal nexus
that may remove or reduce the quality or quantity of critical habitat
must undergo Section 7 consultation for an adverse modification
analysis. Similarly, the listing of the western yellow-billed cuckoo as
a threatened species ensures that, regardless of the time of year,
consultation under the jeopardy standard in either section 7 or section
10 of the Act would also be required in areas where members of the
species are known to occur. When considering the benefits of exclusion,
we consider, among other things, whether exclusion of a specific area
is likely to result in conservation, or in the continuation,
strengthening, or encouragement of partnerships.
In the case of western yellow-billed cuckoo, the benefits of
critical habitat include public awareness of the presence of western
yellow-billed cuckoo and the importance of habitat protection, and,
where a Federal nexus exists, increased habitat protection for western
yellow-billed cuckoo due to protection from destruction or adverse
modification of critical habitat. Additionally, continued
implementation of an ongoing management plan that provides equal to or
more conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, the degree to which the record of the plan supports
a conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership; how it provides for the conservation of the essential
physical or biological features; whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan will be implemented into the future;
whether the conservation strategies in the plan are likely to be
effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information (see Policy on Exclusions (81 FR 7226 at 7247)).
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Exclusions Based on Other Relevant Impacts
Based on the information provided by entities seeking exclusion,
any additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in the critical
habitat were appropriate for exclusion from this final designation
under section 4(b)(2) of the Act. If our analysis indicated that the
benefits of excluding lands from the final designation outweighed the
benefits of designating those lands as critical habitat, then we
identified those areas for the Secretary to exercise his
[[Page 20878]]
discretion to exclude those lands from the final designation, unless
exclusion would result in extinction.
In considering whether to exclude areas under section 4(b)(2) of
the Act, we consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements (SHAs), or candidate conservation
agreements with assurances (CCAAs); whether there are other
conservation agreements and partnerships that would be encouraged by
designation of, or exclusion from, critical habitat; whether there are
tribal conservation plans and partnerships or whether inclusion or
exclusion of specific areas could affect the government-to-government
relationship of the United States with tribal entities; and whether
there are social impacts that might occur because of the designation.
In the paragraphs below, we provide a detailed balancing analysis
of the areas being excluded under section 4(b)(2) of the Act. Table 3
below provides approximate areas (ac, ha) of lands that meet the
definition of critical habitat but that we are excluding from this
final critical habitat rule under section 4(B)(2) of the Act.
Table 3--Areas Excluded by Critical Habitat Unit for the Western Yellow-Billed Cuckoo
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed critical Area excluded (ac Final critical habitat
Unit Unit name habitat, (ac (ha)) (ha)) (ac (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 CA/AZ-1................................... Colorado River 1............... 82,138 (33,240) 82,138 (33,240) 0
2 CA/AZ-2................................... Colorado River 2............... 23,589 (9,546) 23,589 (9,546) 0
3 AZ-1...................................... Bill Williams River............ 3,389 (1,371) 3,389 (1,371) 0
4 AZ-2...................................... Alamo Lake..................... 2,793 (1,130) 2,793 (1,130) 0
7 AZ-5...................................... Upper Verde River.............. 6,047 (2,447) 673 (272) 5,188 (2,100)
9 AZ-7...................................... Beaver Creek................... 2,082 (842) 1 (http://www.fws.gov/sacramento (see ADDRESSES).
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.
The following Tribes were contacted directly during the proposed
and final rule process: Ak-Chin Indian Community; Fort Mojave Indian
Tribe; Colorado River Indian Reservation; Fort Yuma Indian Reservation;
Cocopah Indian Tribe; Chemehuevi Indian Tribe; Fort McDowell Yavapai
Nation; Yavapai-Apache Nation; Yavapi-Prescott Indian Tribe; Tohono
O'odham Nation; Tonto Apache Tribe; Havasupai Tribe; Hualapai Indian
Tribe; Hopi Tribe; Pasua Yaqui Tribe; San Carlos Apache Tribe; Gila
River Indian Community; Salt River Pima-Maricopa Indian Community;
White Mountain Apache Tribe; Navajo Nation; Santa Clara, Ohkay Owingeh,
and San Ildefonso Pueblos; Cochiti, Santo Domingo, San Felipe, Sandia,
Santa Ana and Isleta Pueblos; Shoshone-Bannock, Fort Hall Reservation;
the Cachil DeHe Band of Wintun Indians; and the Ute Tribe of the Uinta
and Ouray Reservation. We will continue to work on a government-to-
government basis with Tribal entities on conservation of habitat after
the designation of critical habitat for the western yellow-billed
cuckoo.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov in Docket No. FWS-R8-ES-
2013-0011 and upon request from the Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and Service staff
in each associated Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
[[Page 20939]]
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 revising the entry for ``Cuckoo, yellow-
billed [Western DPS]'' under ``BIRDS'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Vertebrate Listing
population where citations and
Common name Scientific name Where listed endangered or Status applicable
threatened rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Cuckoo, yellow-billed Coccyzus U.S.A., Canada, Western DPS: U.S.A. T 79 FR 59991, 10/
[Western DPS]. americanus. Mexico, (AZ, CA, CO 3/2014; 50 CFR
Central and (western), ID, MT 17.95(b).CH
South America. (western), NM
(western), NV, OR,
TX (western), UT,
WA, WY (western));
Canada (British
Columbia
(southwestern);
Mexico (Baja
California, Baja
California Sur,
Chihuahua, Durango
(western), Sinaloa,
Sonora).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (b) by adding an entry for ``Yellow-
billed Cuckoo (Coccyzus americanus), Western DPS'' after the entry for
``MARIANA CROW (CORVUS KUBARYI)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Yellow-Billed Cuckoo (Coccyzus americanus), Western DPS
(1) Critical habitat units are depicted for Arizona, California,
Colorado, Idaho, New Mexico, Texas, and Utah, on the maps in this
entry.
(2) Within these areas, the specific physical or biological
features essential to the conservation of western yellow-billed cuckoo
consist of three components:
(i) Rangewide breeding habitat. Riparian woodlands across the
Distinct Population Segment (DPS); Southwestern breeding habitat,
primarily in Arizona and New Mexico: Drainages with varying
combinations of riparian, xeroriparian, and/or nonriparian trees and
large shrubs. This physical or biological feature includes breeding
habitat found throughout the DPS range as well as additional breeding
habitat characteristics unique to the Southwest.
(A) Rangewide breeding habitat (including areas in the Southwest).
Rangewide breeding habitat is composed of riparian woodlands within
floodplains or in upland areas or terraces often greater than 325 ft
(100 m) in width and 200 ac (81 ha) or more in extent with an overstory
and understory vegetation component in contiguous or nearly contiguous
patches adjacent to intermittent or perennial watercourses. The slope
of the watercourses is generally less than 3 percent but may be greater
in some instances. Nesting sites within the habitat have an above-
average canopy closure (greater than 70 percent), and have a cooler,
more humid environment than the surrounding riparian and upland
habitats. Rangewide breeding habitat is composed of varying
combinations of riparian species including the following nest trees:
Cottonwood, willow, ash, sycamore, boxelder, alder, and walnut.
(B) Southwestern breeding habitat. Southwestern breeding habitat,
found primarily in Arizona and New Mexico, is more variable than
rangewide breeding habitat. Southwestern breeding habitat occurs within
or along perennial, intermittent, and ephemeral drainages in montane
canyons, foothills, desert floodplains, and arroyos. It may include
woody side drainages, terraces, and hillsides immediately adjacent to
the main drainage bottom. Drainages intersect a variety of habitat
types including, but not limited to, desert scrub, desert grassland,
and Madrean evergreen woodlands (presence of oak). Southwestern
breeding habitat is composed of varying combinations of riparian,
xeroriparian, and/or nonriparian tree and large shrub species
including, but not limited to, the following nest trees: Cottonwood,
willow, mesquite, ash, hackberry, sycamore, walnut, desert willow,
soapberry, tamarisk, Russian olive, juniper, acacia, and/or oak. In
perennial and intermittent drainages, Southwestern riparian breeding
habitat is often narrower, patchier, and/or sparser than rangewide
riparian breeding habitat and may contain a greater proportion of
xeroriparian trees and large shrub species. Although some cottonwood
and willow may be present in Southwestern riparian habitat,
xeroriparian species may be more prevalent. Mesquite woodland may be
present within the riparian floodplain, flanking the outer edges of
wetter riparian habitat, or scattered on the adjacent hillsides. The
more arid the drainage, the greater the likelihood that it will be
dominated by xeroriparian and nonriparian nest tree species. Arid
ephemeral drainages in southeastern Arizona receive summer humidity and
rainfall from the North American Monsoon, with a pronounced green-up of
grasses and forbs. These arid ephemeral drainages often contain
xeroriparian species like hackberry or nonriparian species associated
with the adjacent habitat type like oak, mesquite, acacia, mimosa,
greythorn, and juniper. In southeastern Arizona mountains, breeding
habitat is typically below pine woodlands (~6,000 ft (1,829 m)).
(ii) Adequate prey base. Presence of prey base consisting of large
insect fauna (for example, cicadas, caterpillars, katydids,
grasshoppers, large beetles, dragonflies, moth larvae, spiders),
lizards, or frogs for adults and young in breeding areas during the
nesting season and in post-breeding dispersal areas.
(iii) Hydrologic processes. The movement of water and sediment in
natural or altered systems that maintains and regenerates breeding
[[Page 20940]]
habitat. This physical or biological feature includes hydrologic
processes found in rangewide breeding habitat as well as additional
hydrologic processes unique to the Southwest in southwestern breeding
habitat:
(A) Rangewide breeding habitat hydrologic processes (including the
Southwest). Hydrologic processes (either natural or managed) in river
and reservoir systems that encourage sediment movement and deposits and
promote riparian tree seedling germination and plant growth,
maintenance, health, and vigor (e.g., lower-gradient streams and broad
floodplains, elevated subsurface groundwater table, and perennial
rivers and streams). In some areas where habitat is being restored,
such as on terraced slopes above the floodplain, this may include
managed irrigated systems that may not naturally flood due to their
elevation above the floodplain.
(B) Southwestern breeding habitat hydrologic processes. In
southwestern breeding habitat, elevated summer humidity and runoff
resulting from seasonal water management practices or weather patterns
and precipitation (typically from North American Monsoon or other
tropical weather events) provide suitable conditions for prey species
production and vegetation regeneration and growth. Elevated humidity is
especially important in southeastern Arizona, where cuckoos breed in
intermittent and ephemeral drainages.
(3) Critical habitat does not include humanmade structures (such as
buildings, aqueducts, runways, roads, bridges, and other paved or
hardened areas as a result of development) and the land on which they
are located existing within the legal boundaries of the critical
habitat units designated for the species on May 21, 2021. Due to the
scale on which the critical habitat boundaries are developed, some
areas within these legal boundaries may not contain the physical or
biological features and therefore are not considered critical habitat.
(4) Data layers defining map units were created on a base of the
Natural Resources Conservation Service National Agriculture Imagery
Program (NAIP 2011), and critical habitat was then mapped using North
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's Sacramento Fish
and Wildlife Office's internet site at http://www.fws.gov/sacramento,
or on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011. You
may obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Unit 1: CA/AZ-1, Colorado River 1; Imperial, Riverside, and San
Bernardino Counties, California, and Yuma and La Paz Counties, Arizona.
This unit was excluded from the designation pursuant to section 4(b)(2)
of the Act.
(6) Unit 2: CA/AZ-2, Colorado River 2; San Bernardino County,
California, and Mohave County, Arizona. This unit was excluded from the
designation pursuant to section 4(b)(2) of the Act.
(7) Unit 3: AZ-1, Bill Williams River; Mohave and La Paz Counties,
Arizona. This unit was excluded from the designation pursuant to
section 4(b)(2) of the Act.
(8) Unit 4: AZ-2, Alamo Lake, Mohave and La Paz Counties, Arizona.
This unit was excluded from the designation pursuant to section 4(b)(2)
of the Act.
[[Page 20941]]
(9) Unit 5: AZ-3, Hassayampa River; Maricopa County, Arizona. Map
of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.000
[[Page 20942]]
(10) Unit 6: AZ-4, Agua Fria River; Yavapai County, Arizona. Map of
Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.001
[[Page 20943]]
(11) Unit 7: AZ-5, Upper Verde River; Yavapai County, Arizona. Map
of Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.002
[[Page 20944]]
(12) Unit 8: AZ-6, Oak Creek; Yavapai and Coconino Counties,
Arizona. Map of Unit 8 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.003
[[Page 20945]]
(13) Unit 9: AZ-7, Beaver Creek; Yavapai County, Arizona. Map of
Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.004
[[Page 20946]]
(14) Unit 10: AZ-8, Lower Verde River and West Clear Creek; Yavapai
County, Arizona. Map of Unit 10 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.005
[[Page 20947]]
(15) Unit 11: AZ-9A and AZ-9B, Horseshoe Dam; Gila, Maricopa, and
Yavapai Counties, Arizona. Maps of Unit 11 follow:
(i) Map of Unit 11: AZ-9A, Horseshoe Dam.
[GRAPHIC] [TIFF OMITTED] TR21AP21.006
[[Page 20948]]
(ii) Map of Unit 11: AZ-9B, Horseshoe Dam.
[GRAPHIC] [TIFF OMITTED] TR21AP21.007
[[Page 20949]]
(16) Unit 12: AZ-10, Tonto Creek; Gila County, Arizona. Map of Unit
12 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.008
(17) Unit 13: AZ-11, Pinal Creek; Gila County, Arizona. This unit
was excluded from the designation pursuant to section 4(b)(2) of the
Act.
[[Page 20950]]
(18) Unit 14: AZ-12, Bonita Creek; Graham County, Arizona. Map of
Unit 14 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.009
[[Page 20951]]
(19) Unit 15: AZ-13, San Francisco River; Greenlee County, Arizona.
Map of Unit 15 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.010
[[Page 20952]]
(20) Unit 16: AZ-14, Upper San Pedro River; Cochise County,
Arizona. Map of Unit 16 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.011
[[Page 20953]]
(21) Unit 17: AZ-15, Lower San Pedro River and Gila River; Pima,
Pinal, and Gila Counties, Arizona. Map of Unit 17 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.012
[[Page 20954]]
(22) Unit 18: AZ-16, Sonoita Creek; Santa Cruz County, Arizona. Map
of Unit 18 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.013
[[Page 20955]]
(23) Unit 19: AZ-17, Upper Cienega Creek; Pima County, Arizona. Map
of Unit 19 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.014
[[Page 20956]]
(24) Unit 20: AZ-18, Santa Cruz River; Santa Cruz County, Arizona.
Map of Unit 20 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.015
[[Page 20957]]
(25) Unit 21: AZ-19, Black Draw; Cochise County, Arizona. Map of
Unit 21 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.016
[[Page 20958]]
(26) Unit 22: AZ-20, Gila River 1; Graham County, Arizona. Map of
Unit 22 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.017
[[Page 20959]]
(27) Unit 23: AZ-21, Salt River; Gila County, Arizona. Map of Unit
23 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.018
[[Page 20960]]
(28) Unit 24: AZ-22, Lower Cienega Creek; Pima County, Arizona. Map
of Unit 24 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.019
[[Page 20961]]
(29) Unit 25: AZ-23, Blue River; Greenlee County, Arizona. Map of
Unit 25 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.020
[[Page 20962]]
(30) Unit 26: AZ-24, Pinto Creek South; Gila and Pinal Counties,
Arizona. Map of Unit 26 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.021
[[Page 20963]]
(31) Unit 27: AZ-25, Aravaipa Creek; Pinal and Graham Counties,
Arizona. Map of Unit 27 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.022
[[Page 20964]]
(32) Unit 28: AZ-26, Gila River 2; Graham and Greenlee Counties,
Arizona. Map of Unit 28 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.023
[[Page 20965]]
(33) Unit 29: AZ-27, Pinto Creek North; Gila County, Arizona. Map
of Unit 29 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.024
[[Page 20966]]
(34) Unit 30: AZ-28, Mineral Creek; Pinal and Gila Counties,
Arizona. Map of Unit 30 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.025
[[Page 20967]]
(35) Unit 31: AZ-29, Big Sandy River; Mohave County, Arizona. Map
of Unit 31 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.026
[[Page 20968]]
(36) Unit 32: NM-1, San Francisco River; Catron County, New Mexico.
Map of Unit 32 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.027
[[Page 20969]]
(37) Unit 33: NM-2, Gila River; Grant County, New Mexico. Map of
Unit 33 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.028
[[Page 20970]]
(38) Unit 34: NM-3A and NM-3B, Mimbres River; Grant County, New
Mexico. Maps of Unit 34 follow:
(i) Map of Unit 34: NM-3A, Mimbres River.
[GRAPHIC] [TIFF OMITTED] TR21AP21.029
[[Page 20971]]
(ii) Map of Unit 34: NM-3B, Mimbres River.
[GRAPHIC] [TIFF OMITTED] TR21AP21.030
[[Page 20972]]
(39) Unit 35: NM-4, Upper Rio Grande 1; Rio Arriba County, New
Mexico. Map of Unit 35 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.031
(40) Unit 36: NM-5, Upper Rio Grande 2; Santa Fe and Rio Arriba
Counties, New Mexico. This unit was excluded from the designation
pursuant to section 4(b)(2) of the Act.
[[Page 20973]]
(41) Unit 37: NM-6A and NM-6B, Middle Rio Grande; Sierra, Socorro,
Valencia and Bernalillo Counties, New Mexico. Unit 37: NM-6A was
excluded from the designation pursuant to section 4(b)(2) of the Act.
Map of Unit 37: NM-6B, Middle Rio Grande, follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.032
[[Page 20974]]
(42) Unit 38: NM-7, Upper Gila River; Grant and Hidalgo Counties,
New Mexico. Map of Unit 38 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.033
(43) Unit 39: NM-8A, Caballo Delta North and NM-8B, Caballo Delta
South; Sierra County, New Mexico. This unit was excluded from the
designation pursuant to section 4(b)(2) of the Act.
(44) Unit 40: NM-9, Animas; Sierra County, New Mexico. This unit
was excluded from the designation pursuant to section 4(b)(2) of the
Act.
(45) Unit 41: NM-10, Selden Canyon and Radium Springs; Do[ntilde]a
Ana County, New Mexico. This unit was excluded from the designation
pursuant to section 4(b)(2) of the Act.
[[Page 20975]]
(46) Unit 42: AZ-30, Arivaca Wash and San Luis Wash; Pima County,
Arizona. Map of Unit 42 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.034
(47) Unit 43: AZ-31, Florida Wash; Pima and Santa Cruz Counties,
Arizona. Map of Unit 43 follows:
[[Page 20976]]
[GRAPHIC] [TIFF OMITTED] TR21AP21.035
[[Page 20977]]
(48) Unit 44: AZ-32, California Gulch; Santa Cruz County, Arizona.
Map of Unit 44 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.036
[[Page 20978]]
(49) Unit 45: AZ-33, Sycamore Canyon; Santa Cruz County, Arizona.
Map of Unit 45 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.037
[[Page 20979]]
(50) Unit 46: AZ-34, Madera Canyon; Pima and Santa Cruz Counties,
Arizona. Map of Unit 46 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.038
[[Page 20980]]
(51) Unit 47: AZ-35, Montosa Canyon; Santa Cruz County, Arizona.
Map of Unit 47 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.039
[[Page 20981]]
(52) Unit 48: AZ-36, Patagonia Mountains; Santa Cruz County,
Arizona. Map of Unit 48 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.040
[[Page 20982]]
(53) Unit 49: AZ-37, Canelo Hills; Santa Cruz County, Arizona. Map
of Unit 49 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.041
[[Page 20983]]
(54) Unit 50: AZ-38, Arivaca Lake; Pima and Santa Cruz Counties,
Arizona. Map of Unit 50 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.042
[[Page 20984]]
(55) Unit 51: AZ-39, Peppersauce Canyon; Pinal County, Arizona. Map
of Unit 51 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.043
[[Page 20985]]
(56) Unit 52: AZ-40, Pena Blanca Canyon; Santa Cruz County,
Arizona. Map of Unit 52 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.044
[[Page 20986]]
(57) Unit 53: AZ-41, Box Canyon; Pima County, Arizona. Map of Unit
53 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.045
[[Page 20987]]
(58) Unit 54: AZ-42, Rock Corral Canyon; Santa Cruz County,
Arizona. Map of Unit 54 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.046
[[Page 20988]]
(59) Unit 55: AZ-43, Lyle Canyon; Santa Cruz and Cochise Counties,
Arizona. Map of Unit 55 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.047
[[Page 20989]]
(60) Unit 56: AZ-44, Parker Canyon Lake; Santa Cruz and Cochise
Counties, Arizona. Map of Unit 56 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.048
[[Page 20990]]
(61) Unit 57: AZ-45, Barrel Canyon; Pima County, Arizona. Map of
Unit 57 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.049
[[Page 20991]]
(62) Unit 58: AZ-46, Gardner Canyon; Pima and Santa Cruz Counties,
Arizona. Map of Unit 58 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.050
[[Page 20992]]
(63) Unit 59: AZ-47, Brown Canyon; Pima County, Arizona. Map of
Unit 59 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.051
[[Page 20993]]
(64) Unit 60: AZ-48, Sycamore Canyon; Santa Cruz County, Arizona.
Map of Unit 60 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.052
[[Page 20994]]
(65) Unit 61: AZ-49, Washington Gulch; Santa Cruz County, Arizona.
Map of Unit 61 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.053
[[Page 20995]]
(66) Unit 62: AZ-50, Paymaster Spring and Mowry Wash; Santa Cruz
County, Arizona. Map of Unit 62 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.054
[[Page 20996]]
(67) Unit 63: CA-1, Sacramento River, Colusa, Glenn, Butte, and
Tehama Counties, California. Map of Unit 63 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.055
[[Page 20997]]
(68) Unit 64: CA-2, South Fork Kern River Valley; Kern County,
California. Map of Unit 64 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.056
[[Page 20998]]
(69) Unit 65: ID-1, Snake River 1; Bannock and Bingham Counties,
Idaho. Map of Unit 65 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.057
[[Page 20999]]
(70) Unit 66: ID-2, Snake River 2; Bonneville, Madison, and
Jefferson Counties, Idaho. Map of Unit 66 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.058
[[Page 21000]]
(71) Unit 67: ID-3, Henry's Fork and Teton Rivers; Madison and
Fremont Counties, Idaho. Map of Unit 67 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.059
[[Page 21001]]
(72) Unit 68: CO-1, Colorado River; Mesa County, Colorado. Map of
Unit 68 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.060
[[Page 21002]]
(73) Unit 69: CO-2, North Fork Gunnison River; Delta County,
Colorado. Map of Unit 69 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.061
[[Page 21003]]
(74) Unit 70: UT-1, Green River 1; Uintah and Duchesne Counties,
Utah. Map of Unit 70 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.062
[[Page 21004]]
(75) Unit 71: UT-2, Green River 2; Emery and Grand Counties, Utah.
Map of Unit 71 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.063
[[Page 21005]]
(76) Unit 72: TX-1, Terlingua Creek and Rio Grande; Brewster
County, Texas. Map of Unit 72 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.064
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director U.S. Fish and Wildlife Service.
[FR Doc. 2021-07402 Filed 4-20-21; 8:45 am]
BILLING CODE 4333-15-C
