Betrayal of an Endangered Species

Status and Management of the Southwestern willow flycatcher

 

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY

Prepared by Noah Greenwald

Endangered Species Series No. 40

May 26, 1998


Table of Contents

I. Rangewide population status

II. Current management status

III. Causes of past and continued population declines

IV. Recommendations

V. Case Studies: the political realities of endangered species management

Agribusiness crushes the USFWS and the flycatcher at Lake Isabella
Bureau of Reclamation calls the shots at Lake Mead

VI. Status of the Southwestern willow flycatcher by river

The Colorado River
The Bill Williams River
The San Pedro River
The Gila River
The San Francisco River
The Little Colorado River
The Salt River
Tonto Creek
The Verde River
The San Luis Rey River
The South Fork of Kern River
The Santa Margarita River
The Santa Ana River
Mill Creek
The Mojave River
The Santa Ynez River
The Rio Grande
Coyote Creek
The Rio Chama
The Zuni River
The Virgin River

Bibliography

Appendix A: Biological opinions

List of Tables

Table 1. flycatcher populations are critically small
Table 2. the majority of flycatcher populations are isolated
Table 3. breeding status of the flycatcher
Table 4. demographic vulnerability classes
Table 5. demographic vulnerability of the flycatcher
Table 6. flycatcher population trends
Table 7. management threats
Table 8. assessing total management threats
Table 9. extirpated populations
Table 10. site names
Table 11. USFWS authorized take of flycatchers
Table 12. unequal mitigation
Table 13. Jeopardy decisions
Table 14. Contemporaneous non-jeopardy decisions
Table 15. Federal Agencies resist consultation
Table 16. Critical Habitat under three proposals
Table 17. Cowbirds and flycatchers
Table 18. Grazing and the flycatcher
Table 19. Tamarisk and the flycatcher
Table 20. Altered rivers and the flycatcher
Table 21. Colorado River Territories
Table 22. Bill Williams River Territories
Table 23. San Pedro River Territories
Table 24. Gila River Territories
Table 25. San Francisco River Territories
Table 26. Little Colorado River Territories
Table 27. Salt River and Tonto Creek Territories
Table 28. Verde River Territories
Table 29. San Luis Rey River Territories
Table 30. South Fork of Kern River Territories
Table 31. Santa Margarita River Territories
Table 32. Santa Ana River Territories
Table 33. Mill Creek Territories
Table 34. Mojave River Territories
Table 35. Santa Ynez River Territories
Table 36. Rio Grande Territories
Table 37. Coyote Creek Territories
Table 38. Rio Chama Territories
Table 39. Zuni River Territories
Table 40. Virgin River Territories


Rangewide population status

Flycatcher populations are critically small and isolated

The Southwestern willow flycatcher population has reached a critical threshold, with only approximately 550 flycatcher territories in 1997, between 62 sites (A site is loosely defined as an area harboring a flycatcher population or populations). This places the flycatcher at extreme risk of rapid extinction, as confirmed by a recent statement by the USFWS:

"This figure (300-500 pairs) is alarming because, at such low population levels, random demographic, environmental, and genetic events could lead to extirpation of breeding groups and eventually render this species extinct, even if all extant sites were fully protected." (USFWS 1997a)

Small populations in general and the flycatcher in particular are at greater risk because of demographic stochasticity (e.g. random shifts in birth and death rates, and sex ratios), inbreeding depression and environmental stochasticity (e.g. extreme weather events, floods or fires). The latter is perhaps the gravest concern for the flycatcher because its habitat occurs in a rapidly changing environment that has been severely reduced by anthropogenic forces (see below).

Magnifying risk of extinction further, the flycatcher occurs in exceedingly small, isolated population groups. Seventy-eight percent of all flycatcher populations are found in groups of 5 or less (table 1). Thus, the flycatcher population as a whole is at risk of being piecemealed to extinction one small population at a time.

Not only are flycatcher populations exceedingly small, they also are highly isolated. We classified a population as isolated when it was greater than 50 miles from the nearest breeding population within the same drainage. Based on limited data, flycatchers are thought to disperse to new sites via connected watersheds (Plentovich personal communication 1997, Yong and Finch 1997). By our definition, approximately 75% of the total population is isolated (note: most are much further than 50 miles from the nearest breeding population)(table 2). Thus, when a population group is extirpated, in most cases, there is a low probability that the habitat will be recolonized, and each time this happens the flycatcher population as a whole becomes ever more fragmented.

Table 1, flycatcher populations are critically small

Sites with no territories in 1997 Sites with 1-5 pairs Sites with 5-25 pairs Sites with >25 pairs Sites with >100 pairs
18% 59% 20% 1 1

Table 2, the majority of flycatcher populations are isolated

Flycatcher populations not within 50 miles of another breeding population Flycatcher populations within 50 miles of another breeding population
75% 25%

Reproduction is a major limiting factor for the flycatcher

The flycatcher is severely limited by lack of breeding and poor nest success (defined as failure to fledge at least one bird). Less than half of all flycatcher sites (43%) had successful breeding in any year between 1994 and 1997 (table 3). This presumably is the result of the small size and isolation of most habitat patches occupied by flycatchers. Small patch size likely increases nest parasitism and depredation by increasing edge to interior ratios, and isolation results in lowered success in finding a mate, as evidenced by the approximately 18% of all territories in 1997 consisting of single unpaired males. Thus, the majority of flycatcher populations are sliding towards extinction or being sustained by immigration.

A small number of sites have been responsible for most breeding. These include the lower San Pedro, Cliff-Gila Valley, San Luis Rey River, South Fork of Kern River, Lake Mead, Topock Marsh, and Tonto and Salt River inflows to Lake Roosevelt. These sites were responsible for 73% of all nesting attempts and 69% of all fledglings in 1997, excluding the Cliff-Gila Valley where nesting is not monitored. These sites are absolutely critical to the long term survival of the flycatcher.

Despite the limited number of secure breeding populations, the USFWS has authorized destruction of populations at Lake Mead and Roosevelt, and partial destruction of populations at Lake Isabella by rising reservoir levels. Lake Mead populations are already underwater and Salt and Tonto populations will be as soon as there is enough water to fill the reservoir behind the recently raised Roosevelt Dam. Kern populations will lose 1,100 acres of habitat and nine pairs when the Isabella Reservoir is raised to provide additional water for agriculture. Populations at Mead and Roosevelt alone produced 28% of all known fledglings in 1997.

A combination of larger habitat blocks, better habitat, greater numbers of birds and cowbird trapping, which occurs at Kern, the San Luis Rey and Lake Roosevelt, has made these sites less susceptible to both brood parasitism and predation, resulting in generally higher nest success rates. The four sites listed above had a simple nest success rate of 43% in 1996, whereas all other breeding sites in Arizona had 27% (Sferra et al. 1997). Hence, survival and recovery of the flycatcher is decidedly dependent on maintaining and restoring large blocks of riparian habitat with stable breeding populations of flycatchers.

Table 3, breeding status of the flycatcher

Sites with successful breeding 1994-1997 Sites with successful breeding 1997 Sites with nesting, unknown outcome 1997 Sites where breeding is not monitored
43% 31% 13% 15%

Assessing demographic vulnerability

As detailed above, the majority of flycatcher populations are small, isolated and have little or no reproduction, placing nearly all populations at risk of extirpation. To describe the degree of this risk for each flycatcher population, we categorized populations by size, isolation and past reproduction into high, medium and low demographic vulnerability classes (table 4).

Table 4, demographic vulnerability classes

Demographic vulnerability Population status, based on size, reproduction and geographic isolation
High 1.) 5 or less pairs
2.) 5-15 pairs and total young fledged over four years does not equal the highest number of individuals at a connected site
3.) 15-25 pairs and total young fledged over four years does not equal the highest number of individuals at an isolated site
Medium 1.) 5-25 pairs and total young fledged in four years equals highest number of individuals at the site
2.) 15-25 pairs and some young fledged, but not equal to equal the highest number of individuals at a connected site
Low 1.) 25 or more pairs and young fledged
2.) 15-25 pairs and total young fledged in four years equals highest number of individuals at a connected site


The vast majority of sites, 51 (82%), are high vulnerability and, thus, have a high likelihood of being extirpated (table 5). This is evidenced by 14 sites (18%), all of which would have been considered high vulnerability, that were extirpated between 1994 and 1997 (see below).

Seven sites (11%) are considered medium vulnerability because they have greater than five pairs and adequate breeding. The size of these seven populations, however, still is cause for serious concern, as none are individually viable.

Only four sites are classified as having low vulnerability, including the Cliff-Gila Valley, Salt and Tonto inflows to Roosevelt Lake and South Fork of the Kern River. Of these, all but the Cliff-Gila Valley carry a high management threat (see below) because of the impending inundation and destruction of habitat at Tonto, Salt and Isabella by rising reservoir levels.

Table 5, demographic vulnerability of flycatcher populations

Class Low Medium High
Demographic Vulnerability 4 (7%) 7 (11%) 51 (82%)

For most populations, their status is not likely to improve anytime soon. We defined a population decline or increase as an overall change of two pairs or 4 individuals. This definition is admittedly biased towards the last year of survey, but does provide an approximation of trend. Only 16 sites (21%) have populations that increased between 1994 and 1997 (table 6). A full forty percent of all populations were either stable or declined between 1994 and 1997. This indicates that little to no recovery has occurred since listing under the Endangered Species Act (ESA) was first proposed for the flycatcher in 1994. To the contrary, this report documents the flycatcher's status has declined since listing.

Table 6, flycatcher population trends

Population Trend  
Increase 16(21%)
Decrease 12(16%)
Stable 19(24%)
Extirpated 14(19%)
Unknown 15(20%)

Management threats

Nearly all flycatcher populations are threatened by one or more causes of habitat loss and population decline, including livestock grazing, dams, flood control, groundwater pumping, development, invasion by tamarisk and cowbird parasitism (table 7). Long-term degradation of habitat and continued loss of populations ever increases risk of extinction for the flycatcher.

In several cases, substantial populations are at immediate risk of extirpation by a management decision, including destruction of important populations at Lake Mead, Roosevelt and Isabella by rising reservoir levels. That these actions significantly increase risk of extinction for the flycatcher is confirmed by recent statements made by the USFWS:

"As habitat is lost and fragmented, populations throughout the range are becoming separated by longer distances. In Arizona, with habitat loss at Lake Roosevelt, the distance between the nearest known populations increased from 65 air miles (Roosevelt Lake to San Pedro River) to 135 air miles (San Pedro River to Verde River at Camp Verde)." (USFWS 1997b)

"The Service believes that a loss of this magnitude (Lake Mead), both in the amount of habitat involved and the potential rapid rate of loss, is catastrophic when the status of the flycatcher and riparian habitat on the LCR (lower Colorado River) and in the southwestern U.S. are considered."(USFWS 1997a)

Clearly, because these sites support successful breeding populations, are essential to maintaining a shred of contiguity within the flycatcher population, support quality habitat and, harbor three of the four low demographic vulnerability populations, their protection is absolutely essential to keep the flycatcher viable. Lake levels could still be lowered at Lake Isabella with minimal habitat damage and levels at Roosevelt have yet to flood habitat, meaning that it's not too late for these critical flycatcher populations.

Table 7, management threats

Cause for imperilment Flycatcher sites impacted
Cowbirds 100%
Livestock Grazing 59%
Tamarisk invasion 56%
Dams 43%
Flood-control >5%
Groundwater-pumping 16%
Development 2 sites

Assessing total management threat

Based on existing management threats (table 7), we classified each population as either having high, medium or low total management threat. Those with a high management threat are in immediate danger of extirpation or sharp decline because of an impending action, such as flooding of habitat behind a dam or clearing for development. A medium threat indicates presence of one or more ongoing degrading factors, such as livestock grazing, cowbird presence or parasitism, tamarisk invasion or groundwater pumping. A low threat indicates absence of any known threats.

One hundred percent of all sites are threatened by at least one of the primary causes of habitat loss and decline. Thus, none are classified with low management threat (table 8).

Nineteen sites (31%) have a high management threat, indicating impending decline or loss. These sites harbor 26% of all 1997 territories and several important breeding populations. Loss of this magnitude will probably push the flycatcher population as a whole below any threshold of viability.

The remaining 43 sites (69%) have a medium management threat, most because of more than one factor. Thus, these sites will either continue to decline or remain stable, but are unlikely to recover.

Table 8, total management threat

Class Low Medium High
Total Management Threat 0 43(69%) 19(31%)


Extirpated Populations

Demonstrating the fragility of flycatcher populations, a total of 14 sites were extirpated between 1994 and 1997, meaning in at least the last year of survey they supported zero territories (table 9). Prior to declining to zero, the majority of these sites would have been classified as high demographic vulnerability, indicating the degree to which populations are threatened by small size, lack of reproduction and isolation.

Given that 60% of all flycatcher sites support less than five territories with little or no breeding, numerous other sites are likely going to be extirpated within the next five years.

The small size, isolation and low breeding status of flycatcher populations only is exasperated by existing management threats, such as grazing, dams, cowbirds and tamarisk, which degraded habitat conditions at all these sites.

Table 9, status of 14 flycatcher populations prior to extirpatation.

Extirpated Site Last territories and (pairs) Breeding Isolated demographic vulnerability total management threat
Cibola NWR 3(2) none Y high medium
Ehrenberg 1(1) attempt Y high medium
Mittry Lake 2(1) none Y high medium
Fergusen Lake 1(1) none Y high medium
Gadsen Pond 1 none Y high medium
Bill Williams Delta 2(1) none N high medium
Fortuna Wash 1 none Y high medium
Hall Creek 1 none N high medium
Nelson Reservoir 1 none N high medium
Tuzigoot Bridge 2(1) attempt N high high
Tavasci Marsh 2(1) attempt N high high
De Luz Creek 1 unknown Y high medium
Horno Creek 1 unknown Y high medium
San Onofre Creek 1 unknown Y high medium

Table 10, Site names corresponding to Figure 1.

The Colorado River
1. Lake Mead
2. Havasu NWR
3. Imperial NWR
4. Grand Canyon National Park

The San Pedro River
5. PZ Ranch
6. Cook's Lake Cienega
7. Cook's Lake Seep
8. Indian Hills
9. Dudleyville Crossing
10. CB Crossing SE
11. Wheatfields
12. Apache Powder Road
13. Highway 90 Bridge

The Gila River
14. Cliff Gila Valley
15. Gila Lower Box
16. Safford Area, including Fort Thomas Bridge
17. Kearny Sewage Ponds and Kelton Bridge to Ashhurst-Hayden Dam

The Bill Williams River
18. Bill Williams River Delta
19. Alamo Lake
20. Highway 93 Bridge
21. Lower Big Sandy
22. Lower Santa Maria

The Little Colorado River
23. Greer/River Reservoir

The Salt River
24. Salt River Inflow

Tonto Creek
25. Tonto Creek Inflow

The San Francisco River
26. Alpine

The Verde River
27. Camp Verde
28. Ister Flat

The San Luis Rey River
29. Upper San Luis Rey River

The South Fork Of the Kern River
30. South Fork Kern River

The Santa Margarita River
31. Camp Pendleton

The Santa Ana River
32. Prado Basin and Mill Creek

The Mojave River
33. Near Route 18

The Santa Ynez River
34. Multiple locations

The Rio Grande
35. Alamosa NWR
36. Tierra Azul /Orilla Verde
37. Toas Junction Bridge/Orilla Verde
38. Velarde
39. San Juan Pueblo Bridge
40. San Marcial
41. Radium Springs
42. Coyote Creek

The Rio Chama
43. Parkview Area

The Zuni River
44. Nutria Diversion Dam
45. Black Rock Dam

The Virgin River
46. Virgin River Delta, Mesquite, Mormon Mesa and Muddy River Delta
47. Hurricane to St. Goerge.


Current Management Status

Despite clear evidence of endangerment, the USFWS resisted listing the Southwestern willow flycatcher as an endangered species

Though the Southwestern willow flycatcher was identified as a valid subspecies in danger of extinction in 1987 (Unitt 1987) and was classified as a category 1 species in 1991, the USFWS failed to list the flycatcher under the Endangered Species Act until forced to do so by a formal petition, submitted by the Southwest Center for Biological Diversity January 25, 1992. The combination of conclusive biological data, and the strict legal timelines of the ESA, should have resulted in a prompt listing decision. The USFWS, however, dragged its feet. The 90 day finding, required by the ESA, was four months late. The proposed rule was six months late and came only after a lawsuit by the Environmental Defense Center. The final rule was 14 months late- it too from a lawsuit, this time by the Southwest Center for Biological Diversity. Though the listing proposal included 643 miles of critical habitat, the final rule designated none, alleging a riparian conservation plan could preclude the need for critical habitat. The plan never materialized and, indeed, a Freedom of Information Act request revealed no evidence of any plan. After a third lawsuit by Southwest Center, the USFWS published a final rule designating 599 miles of critical habitat, just over half of a 1,033 miles recommended by agency biologists. Indeed, the final proposal includes barely more than half of all known populations, even though critical habitat by law must include all areas necessary for the flycatcher's survival and recovery.

Though evidence of the flycatchers perilous status was abundantly clear, the USFWS missed every single ESA listing deadline, refusing to act unless ordered to do so by federal court orders. The agency's refusal to obey the law and take decisive action to prevent the flycatcher's slide towards extinction continued long after the species was formally listed under the ESA.

The USFWS is unwilling to protect the flycatcher by significantly modifying or halting projects

In order to protect endangered species from harmful actions, Federal agencies are legally required to consult with the USFWS on any action likely to impact a species or its habitat. During consultation, the USFWS produces a biological opinion, which describes the affects of the action on any endangered species. If a proposed Federal action is determined to result in take of a federally listed species or its critical habitat, the USFWS is required to devise "reasonable and prudent measures" (RPM) that minimize impact of the action (U.S.C 16 1536(b(4C))). If an agency action is likely to "jeopardize the continued existence of an endangered species", the USFWS is legally obligated to provide "reasonable and prudent alternatives" (RPA) to the action, meaning it is not to be carried out as planned (U.S.C 16 1536(b(3A))). Thus, the USFWS has both the means and the responsibility to stop or modify damaging projects when they impact endangered species.

To date, the USFWS has issued 28 biological opinions from consultations on federal actions affecting the flycatcher, including 6 rare jeopardy opinions and 16 incidental take permits (Appendix A).

In the majority of cases, the USFWS has allowed projects impacting the flycatcher to proceed essentially unchanged, regardless of severity of impact. Whether faced with an expansion of a major dam, a federal grazing allotment, a housing development or a bridge, the USFWS refused to significantly modify projects to prohibit take and habitat loss. The USFWS has, instead, relied on RPMs and RPAs that project or restore habitat elsewhere, or require cowbird trapping. In the limited number of cases (8 of 28) where a project has been modified, rather than mitigated, the modifications were inadequate to eliminate take or habitat loss.

Given the status of the flycatcher, a policy which allows the majority of projects to go forward unaltered is inconsistent with the USFWS' mandate to ensure the survival and recovery of endangered species.

The USFWS has authorized take of at least 20% of the flycatcher population

In total, the USFWS has permitted take of at least 120 flycatcher territories, approximately 25% of the total flycatcher population, including extirpation of three critically important breeding populations (table 11). The extent of both habitat loss and take of flycatchers fundamentally contradicts the purpose and intent of the consultation process, which is to ensure that Federal actions, individually or cumulatively, do not result in the extinction of an endangered species. Systematic approval of habitat destruction and loss of entire populations prompted one USFWS biologist to name the USFWS itself as an agent of extinction:

"the Southwestern willow flycatcher is being piecemealed to extinction; the service is turning a blind eye to the aggregate effects of its own consultation process. This internal denial is as insidious as cowbird parasitism" (Memo from Rob Marshall USFWS, 4/24/97)

The most egregious projects approved by the USFWS are the flooding of four important flycatcher populations behind Army Corps and Bureau of Reclamation dams, resulting in take of up to 90 territories. In all these cases, the USFWS has allowed the projects to continue unaltered.

Table 11, USFWS authorized take for Federal actions, amounting to greater than 120 territories.

Federal Action Impacted flycatcher population(s) Amount of take
destruction of habitat behind Roosevelt Dam Salt and Tonto 45 territories
destruction of habitat behind Hoover Dam on Lake Mead Colorado and Virgin River inflows 30-40 territories
destruction of habitat at Lake Isabella South Fork Kern River 9 territories/pairs
Camp Pendleton construction and training activities Santa Margarita and others on the base 4 territories annually, up to 20 total
BLM livestock grazing Gila Lower Box reproduction from 2 pairs annually
BLM livestock grazing several on upper Rio Grande 1 pair
BLM livestock grazing San Luis Rey River take expected, but not quantified by USFWS
BLM livestock grazing Lower San Pedro and Gila Rivers take expected, but not quantified by USFWS
USFS livestock grazing Tuzigoot and Tavasci on Verde one nest annually
USFS livestock grazing Salt inflow take expected, but not quantified by USFWS
USFS livestock grazing Tonto inflow take expected, but not quantified by USFWS
Temescal Wash bridge and levee construction Prado Basin 2 flycatchers
Construction of new Solomon Bridge Gila River at Solomon Bridge 2 territories
Repair Tuzigoot Bridge Tuzigoot on the Verde 1 flycatcher annually
Camp Verde 900 unit development Tuzigoot and Tavasci 2-4 territories
Glen Canyon Spikeflow Grand Canyon populations 2 territories

Proposed mitigation does not equal predicted impacts to the flycatcher

The USFWS often fails to propose equitable mitigation, for habitat loss and take (table 12). The Bureau of Reclamation, for example, was required to purchase habitat on the San Pedro river that currently only harbors three territories to mitigate destruction of habitat and elimination of two important breeding populations with up to 45 territories at Lake Roosevelt.

Similarly, destruction of habitat and flycatchers at Lake Mead, one of the largest patches of native habitat in the Southwest, was mitigated by requiring Bureau of Reclamation to promise to protect 1,400 acres of habitat within five years. This included no stipulation that the habitat be a contiguous patch or even that it harbor flycatchers. In both cases the proposed mitigation in no way equals loss for the flycatcher.

Table 12, examples of unequal mitigation proposed by USFWS.

Action Habitat Loss and Take Mitigation
Flooding of habitat behind Isabella Dam Loss of up to 1,100 acres of native cottonwood-willow habitat and up to 9 pairs. Protect 360 acres, of which only 95 is protected. Of this, only a portion is riparian and all is grazed. A scientific team is studying the need for more mitigation.
Flooding of habitat behind the modified Roosevelt Dam Extirpation of two important breeding populations with up to 45 territories. Purchased land on the San Pedro with three territories.
Flooding of habitat behind Hoover Dam Extirpation of up to 30-40 territories and destruction of a 1,400 acre contiguous patch of native willows. Protect unspecified 1,400 acres of habitat within five years. No requirement that the habitat be contiguous or harbor flycatchers.
Construction of a levee wall in the Santa Margarita floodplain on Camp Pendleton. Loss of 6-8 flycatcher territories, destruction of 30 acres riparian habitat and degradation of an additional 600-1,000 acres. Restore 10 acres of habitat and remove exotic species from another 33.3 acres.
Construction of a new Solomon Bridge. Loss of two territories and 7.4 acres of habitat. Revegetate habitat.


Despite statements that any take is jeopardy, the USFWS continues to issue non-jeopardy opinions

Jeopardy opinions are issued by the USFWS when an action is determined to increase the likelihood of a species going extinct or adversely modify critical habitat.

The USFWS has been inconsistent in issuing jeopardy opinions. On one hand, they have indicated that any take or habitat loss is jeopardy, while, on the other, continuing to issue non-jeopardy opinions, even where actions involve significant loss for the flycatcher (tables 13 and 14).

To date, the USFWS has issued six jeopardy opinions, including flooding of habitat at Lake Mead and Roosevelt, a housing development on the Verde River and 3 opinions on grazing (table 13). Four of these opinions involve take of less than four territories, and one includes take of potential, but unoccupied habitat, indicating the USFWS considers even small amounts of take to constitute jeopardy for the flycatcher. This is supported by several recent USFWS' statements:

"Extinction of the southwestern willow flycatcher is foreseeable. This low status rangewide, as well as in the action area, indicates a critical need to aggressively protect existing populations and to expand and enhance native riparian habitat and the suite of environmental conditions that promote such habitat. Additional habitat loss and forced emigration/population fragmentation is inconsistent with the need to ensure the survival and recovery of the southwestern willow flycatcher." (USFWS 1997a).

"The limited available information indicates that all potential habitat, throughout the flycatchers range, is important to the continued survival of this species" (USFWS 1997f).

"It is the Service's opinion that continued losses of established breeding sites, or temporary impacts that negatively affect reproduction and survivorship would significantly reduce the reproduction, numbers, and distribution of the Southwestern willow flycatcher rangewide." (USFWS 1996a).

"Take of even one flycatcher constitutes jeopardy" (Nancy Kaufmann, Director Region 2 USFWS)

Despite the above statements, the USFWS has continued to issue opinions that involve take or habitat loss, but which do not conclude jeopardy (table 14). For example, the USFWS failed to issue a jeopardy opinion for flooding of habitat at Lake Isabella, which could result in take of up to nine pairs. Clearly, if in one case the USFWS determines that take of unoccupied flycatcher habitat is jeopardy and in another determines that take of nine flycatcher territories and 1,100 acres of habitat is not, they are making decisions capriciously. Given the flycatcher's precarious status, as determined by the USFWS, any action that involves take constitutes jeopardy, requiring alternatives that truly erase impacts to the flycatcher.

Table 13, USFWS jeopardy decisions.

Action Habitat Loss and Take Date
Flooding of habitat behind the modified Roosevelt Dam Extirpation of important breeding population with up to 45 territories. Loss of two tamarisk dominated habitat patches. July 23, 1996
Flooding of habitat behind Hoover Dam Extirpation of up to 30-40 territories and destruction of a 1,400 acre patch of native willows. April 30, 1997
900 unit housing development Take of two-four territories at Tuzigoot Bridge and Tavasci Marsh. February 28, 1996
BLM Grazing, Farmington Resource Area Loss of potential migratory or nesting habitat. April 18, 1997
BLM Grazing, Taos Resource Area Take of one pair. April 22, 1997
BLM Grazing, Mimbres Resource Area Take of reproduction from two pairs. July 1, 1997

Table 14, USFWS biological opinions, involving take or habitat loss, but not a jeopardy decision, capriciously issued at the same time as or after USFWS' biological opinions and statements indicating any take or habitat loss constituted jeopardy.

Action Habitat loss and take Date
Destruction of habitat behind Lake Isabella Destruction of 1,100 acres of habitat take of up to nine pairs. April 18, 1997
Glen Canyon spike flow Take of two territories. February 16, 1996
Construct storm-water system for 900 unit development Indeterminable take of flycatchers and habitat degradation, June 3, 1997
Construct wastewater treatment plant in Prado Basin No take, habitat loss and degradation August 17, 1997
Fenton Sand-mine, San Luis Rey River No take, habitat loss and degradation July 3, 1997
BLM grazing Caballo Resource Area No take, habitat loss and degradation April 28, 1997
BLM grazing Rio Puerco Resource Area No take, habitat loss and degradation March 13, 1997
BLM grazing Safford Resource Area Indeterminable take, and habitat loss and degradation September 26, 1997
Forest Service grazing 11 National Forests No take, habitat loss and degradation December 19, 1997

Federal Agencies have failed or neglected to consult on actions impacting the flycatcher.

Under the ESA, Federal agencies are required to initiate consultation if there is "reason to believe that an endangered species or threatened species may be present in the area affected by the action and implementation of the action will likely affect such species" (ESA 16 U.S.C.A 7(3)). In numerous cases, the Southwest Center for Biological Diversity and other citizen groups have had to sue Federal agencies to force consultation with the USFWS (table 15). For example, the BLM refused to consult on grazing allotments, which impact flycatcher populations and habitat throughout the Southwest, until two suits (one by the Southwest Center and one by Forest Guardians) and a 60-day notice were filed. Similarly, the Southwest Center and Forest Guardians sued the Forest Service to force them to consult on impacts of their grazing allotments on the flycatcher and several other endangered species.

Citizens groups, however, are not capable of suing on every Federal Action that impacts endangered species. Lack of agency responsibility to the law and endangered species results in continued species and habitat declines, and places resource agencies in increasing danger of future train wrecks caused by conflict between endangered species protection and extractive uses of Federal lands.

Table 15, actions where Federal Agencies had to be forced into consultation by lawsuits.

Action Lawsuit Outcome
BLM grazing, all resource areas in New Mexico Forest Guardians filed suit to require consultation BLM forced into consultation
BLM grazing, Safford Resource Area Southwest Center filed suit to require consultation BLM forced into consultation
BLM grazing, all resource areas in Arizona Southwest Center filed 60-day notice on a suit to require consultation BLM developed a timeline for consultation on all Arizona resource areas.
BLM grazing on Bureau of Reclamation (BOR) land, surrounding Elephant Butte Reservoir Forest Guardians filed 60-day notice on a suit to require BOR to consult BOR required BLM to remove cattle during the breeding season
Forest Service (USFS) grazing on 11 Southwest National Forests Southwest Center filed 60-day notice on a suit to require USFS to consult USFS agrees to a programmatic consultation
USFS grazing, 92 allotments Southwest Center filed suit to require consultation USFS initiated consultation
USFS grazing, 110 allotments Forest Guardians filed suit to require consultation USFS initiated consultation
BOR operations of dams on the lower Colorado River Southwest Center filed a 60-day notice to require consultation BOR initiated consultation

Critical habitat protects only 50% of the flycatcher population

Critical habitat designation for the flycatcher exemplifies a strong deference, on the part of the USFWS, to politics over the biological realities of the flycatcher's perilous status. After years of delay, the USFWS designated critical habitat only protecting slightly more than half the flycatcher population and excluding important breeding populations to avoid political conflict with other Federal Agencies.

Although critical habitat was originally included in the proposed rule for listing the flycatcher, the USFWS inappropriately and illegally deferred designation in the final rule, ultimately delaying final designation for over two years until forced to do so by court order. During the interim, agency biologists produced a draft re-proposal for critical habitat. Though this proposal was close to complete and included several populations found since the flycatcher was listed, the USFWS claimed the court order forcing designation did not allow them adequate time to include new populations.

The final designation only protects 599 miles of rivers and streams (Federal Register V. 62 # 140, July 22, 1997), less than both the original proposal (643 miles) and the re-proposal (1,033 miles). As a result, critical habitat currently only includes 59% of all known territories in 1997 and only 14 of 33 sites that have had successful breeding in the past four years. It fails to include several key populations located since listing, including Lake Mead and Lake Roosevelt (Table 16).

It is doubtful that Mead and Roosevelt were left out because the USFWS lacked time to revise critical habitat, as they claimed. Instead, these populations were not included because their habitat was slated for destruction by the Bureau of Reclamation, who likely exerted heavy political pressure against their inclusion. Similarly, none of the Rio Grande was included, despite substantial populations, because it would have disrupted the Bureau's and the Army Corps of Engineer's management of the river.

Politics was likely behind a recent and inexplicable change of the boundaries of critical habitat, excluding habitat more than 100 meters from surface water during the breeding season. This change is in direct contradiction to the original rule, which had strongly justified designating critical habitat to include all areas in the 100-year floodplain:

"The Service agrees, however, that the lateral boundaries of critical habitat are inadequate and do not incorporate the dynamic nature of riparian systems. For example, changes in the distribution of riparian habitats in response to natural flooding events, or changes in stream flow due to droughts, impoundments, etc. sometimes leave suitable habitat more than 100 meters from surface water. To alleviate this inadequacy, the lateral boundaries of critical habitat were established by the 100-year floodplain."(Federal Register V. 62, #140, July 22, 1997).

Despite the above statement, the USFWS, when making the change, claimed they had made an oversight in the original rule.

The correction directly benefits the Camp Pendleton Marine Corps Base which is planning to construct a levee bisecting occupied flycatcher habitat, which is beyond 100 m from surface water.

Because the flycatcher frequently occurs in areas where surface water is absent during the breeding season or is of limited extent, its habitat is often not within 100 meters of surface water. Thus, possibly to please a narrow political interest, the USFWS made a change negatively effecting the flycatcher rangewide.

The status of the flycatcher is such that it requires critical habitat designation for all presently occupied sites, and for large areas of potentially suitable, but unoccupied habitat.

Flycatcher populations, particularly breeding populations, are critically small and fragmented, putting the species at risk of extinction rangewide (e.g. Unitt 1987, USFWS 1997a, Tibbits et al. 1994). Critical habitat only including habitat for slightly over half the population clearly fails to provide for viable flycatcher populations.

Critical habitat also fails to include a significant amount of presently unoccupied habitat. This is significant because it is estimated the flycatcher only occupies approximately 10% of all suitable habitat within its range (USFWS 1997a).

The draft re-proposal completed by the USFWS concludes that designation for areas outside the flycatcher's present range are an absolute necessity, stating:

"Such designation of critical habitat is necessary for E.t. extimus. The areas currently occupied by the species are few, small, widely-spaced locales that the Service has determined to be insufficient to conserve the species."

The current limited extent of critical habitat will presumably allow habitat destruction and take to continue, likely increasing fragmentation of flycatcher habitat, further isolating flycatcher populations and resulting in a higher risk of extirpation at both individual sites and rangewide. Conservation of the flycatcher would be better served by adopting the draft re-proposal for critical habitat, including the 100-year floodplain, plus all documented populations of flycatchers, including Lake Mead.

Table 16, river miles under 3 different USFWS proposals for critical habitat.

Location First Proposal Re-Proposal Final Comments
Chama River, NM 0 5 miles 0 Small, fragile flycatcher populations on this drainage need protection.
Rio Grande River, NM 16 miles 264 miles 0 Substantial flycatcher populations and important migration habitat (Yong and Finch 1997) certainly require additional protection.
Gila River, NM & AZ 95 miles 187 miles 95 miles Final fails to include any of the Gila River in Arizona.
San Francisco River, NM 65 miles 65 miles 65 miles  
Tularosa River and Apache Creek, NM 35 miles 35 miles 35 miles Currently no flycatchers, but potential for habitat restoration
Zuni River 0 miles 0 miles 0 miles Two flycatcher sites not included.
San Pedro River, AZ 120 miles 114 miles 120 miles  
Salt River, AZ 0 8 miles 0 Roosevelt Lake Inflow with substantial flycatchers, excluded because of potential habitat destruction from modified dam.
Tonto Creek, AZ 0 4 miles 0 As above
Verde River, AZ 90 miles 90 miles 90 miles  
Wet Beaver Creek, AZ 25 0 20 No flycatchers currently
West Clear Creek, AZ 23 miles 0 9 miles No flycatchers currently
Little Colorado River, AZ 30 miles 30 miles 30 miles  
Bill Williams River, AZ 0 36 miles 0 miles A number of important flycatcher sites left out of critical habitat. Large patches of native habitat.
Santa Maria River, AZ 0 6 miles 0 Flycatcher sites not included.
Big Sandy River, AZ 0 6 miles 0 Flycatcher sites not included.
Colorado River, AZ 32 miles 55 miles 32 miles All proposals only include Grand Canyon, neglecting entire lower river.
Paria River, CA 0 8 miles 0 Currently no flycatchers
South Fork Kern River, CA 21 16 miles 16 miles Area removed is devoid of vegetation because of Lake Isabella
Santa Ynez River, CA 0 30 miles 0 Numerous flycatcher sites not included in final.
Santa Ana River, CA 16 miles 16 miles 16 miles  
Santa Margarita River, CA 20 miles 20 miles 20 miles  
San Luis Rey River, CA 14 miles 28 miles 14 miles  
San Dieguito River, CA 17 miles 17 miles 17 miles Currently no flycatchers
San Diego River, CA 5 miles 5 miles 5 miles Currently no flycatchers
Tijuana River, MX 3 miles 3 miles 3 miles Currently no flycatchers
Virgin River, UT 0 52 miles 0 Newly discovered flycatcher sites could have been protected, likely excluded because of flooding on Lake Mead.
Santa Clara River, UT 0 4 miles 0 Currently no flycatchers
Kanab Creek, NV 0 12 miles 0 No current sites, but did historically have flycatchers.
San Juan River, Co 0 11 miles 0