PYGMY-OWL UPDATE

I. Introduction

II. Research Initiatives

A. Past Efforts

1. First Records -- Bendire and the Rillito

2. Early Naturalists and Riparian Habitats

3. Study Efforts in the Early 1990s

 

B. Current Study Series

1. 1998-1999 Survey Season Results

2. Harris/Duncan Report

 

C. Ongoing and Future Research

1. Genetics Study

2. Telemetry and Habitat Analysis

3. Studies in Mexico and Pima County -- FY 2000

4. Recovery Plan

5. Artificial Nest Box Study

III. Regulatory and Legal Actions

A. Past Actions

1. Listing of the Pygmy-Owl

2. Protocol and Take Guidance

3. Critical Habitat Designation

 

B. Recent Army Corps Nation Wide Permit Injunction - Wash Protection

C. Pending Decisions - Amphi Litigation

IV. Conclusion

I. Introduction

A. Purpose of the Report: Any effort to delist or downlist the endangered cactus ferruginous pygmy-owl will have to address the basis of the listing itself. Under Section 4 of the Endangered Species Act, endangered status can be determined if one or more of five factors exists. On March 10, 1997, the United States Fish and Wildlife Service determined endangered status for the pygmy-owl based primarily on these factors:

• The present or threatened destruction, modification, or curtailment of its habitat or range;
  
• The inadequacy of existing regulatory mechanisms; and
  
• Other factors, including environmental, demographic and genetic vulnerability to random extinction.

During the two and one half years since the listing, studies have been conducted, federal guidelines formulated, and court decisions rendered. This report provides an update on pygmy-owl research and rulings in order to assess whether -- in the midst of this activity -- efforts are leading to the resolution of the basic problems that caused the listing.

B. Factors Contributing to Listing: The seventeen page Final Rule published in the Federal Register dedicates five full pages to a description of the factors that contributed to listing. A few highlights are summarized below.

Factor 1 - Habitat destruction, modification, or curtailment -- The listing document states in part that:

• "The pygmy-owl is threatened by past, present, and potential future destruction and modification of its habitat, throughout a significant portion of its range in Arizona."
  
• "Population numbers have been drastically reduced in Arizona, which once constituted its major United States range."
  
• "The majority of these losses are due to destruction and modification of riparian and thornscrub habitats. It is estimated that between 85 to 90 percent of low-elevation riparian habitats in the southwestern United States have been lost or modified."
  
• "These alterations and losses are attributed to urban and agricultural encroachment, woodcutting, water diversion and impoundment, channelization, livestock overgrazing, groundwater pumping, and hydrologic changes resulting from various land use practices."
  
• "Potential threats to pygmy-owl habitat in Arizona persist. Through the public comment period, the Service was made aware of five specific housing and development projects operating or in the planning stages that would affect habitat where the majority of birds in Arizona currently exist."
  
• "Housing and industrial developments continue to expand in the Tucson area, and the northwest portion of the Tucson area is experiencing rapid growth."
  
• "In summary, very few pygmy-owls remain throughout the pygmy-owl's historic range in Arizona due to extensive loss of habitat. In addition, the remaining pygmy-owl habitat faces numerous and significant threats."

Factor 2 - Lack of adequate regulatory mechanisms -- The listing document states in part that:

• "The Federal Clean Water Act contains provisions for regulating impacts to river systems and their tributaries. These mechanisms have been insufficient to prevent major losses of riparian habitat, including habitats occupied by the pygmy-owl."
  
• "There are no provisions for habitat protection under Arizona endangered species law."
  
• "Most Federal agencies have policies to protect species .... However, until agencies develop specific protection guidelines, evaluate their effectiveness, and institutionalize their implementation, it is uncertain whether any general agency policies adequately protect the pygmy-owl and its habitat."
  
• "No conservation plans or habitat restoration projects specific to the cactus ferruginous pygmy-owl exist for lands managed by the United States Government, Indian Nations, State agencies, or private parties."
  
• "In summary, individual owls are protected from taking by one or more State or Federal statutes, and some Federal agencies are developing programs to protect riparian areas. However, there are currently no regulatory mechanisms in place that specifically protect pygmy-owl habitat."
  

Factor 3 - Vulnerability to environmental, demographic and genetic threats of extinction -- The listing document states in part that:

• "Environmental, demographic, and genetic vulnerability to random extinction are recognized as interacting factors that might contribute to a population's extinction. Environmental random extinction refers to random events, climate, nutrients, water, cover, pollutants, and relationships with other species such as prey, predators, competitors, or pathogens, that may affect habitat quality."
  
• "Populations without genetic variation are often considered imperiled due to either the effect of low population numbers, increased chance of inbreeding, or both."

Summary of factors: "In Arizona, the pygmy-owl exists in extremely low numbers, the vast majority of its former habitat can no longer support the species, and much of the remaining habitat is under immediate and significant threat. The Service thus determines that the cactus ferruginous pygmy-owl faces imminent extinction and therefore meets the definition of endangered under the Act."

Conclusion: The pygmy-owl listing is considered to be one of the most difficult in the United States due to the low number of known individuals and factors described above. This report reviews efforts to date in light of these underlying factors, to assess whether and to what degree efforts are contributing to the resolution of problems that led to the listing itself.

II. Research Initiatives

Under the Endangered Species Act, civil or criminal liability can attach to actions that take animals such as the pygmy-owl, including actions that significantly alter the habitat of animals listed as endangered. When the pygmy-owl was listed in 1997, the Arizona population had not been throughly studied, so basic questions related to habitat needs and the tolerance of this bird for human encroachment could not be answered. The combination of too few owls and too little scientific information placed individual landowners and government entities in the most difficult of situations. There was enough information about the imperiled status of the pygmy-owl to invoke the prohibitions of the federal law, but not enough information about how to protect and recover this tiny bird so that local land use plans in potential owl habitat could be made with certainty. Today -- three survey seasons after the listing -- the local science community knows more about the pygmy-owl than it did at the time of listing. This information should continue to be developed in a rational but fast paced research context to resolve some of the problems identified in the 1997 Final Rule designating the pygmy-owl as endangered.

One of three major factors underlying the listing is vulnerability to environmental, demographic and genetic threats of extinction. Threats include at least the following: low population numbers, isolated and fragmented populations, inbreeding, unknown habitat requirements (water, cover), unknown status of prey availability, unknown status in relation to predators and competitors, and unknown ability to resist pathogens. On March 2, 1999, the Board of Supervisors adopted the Sonoran Desert Conservation Plan in concept and funded a series of studies to advance the state of knowledge about the pygmy-owl and begin to address each of these questions through (1) a broad survey effort; (2) a genetics investigation; and (3) telemetry and habitat assessments. The timeline for these efforts follows.

• March 1999: Genetics study funded by Pima County begins.
  
• April 1999: Survey effort funded by Pima County begins.
  
• May 1999: Telemetry and habitat assessment funded by Pima County begins.
  
• October 1999: Survey results reported to Pima County (results within this text).
  
• February 15, 2000: Report on telemetry and habitat assessment due to Pima County.
  
• March 2000: Final report, genetics study due to Pima County.

To date, Pima County has made the largest financial commitment among all government entities in an attempt to close the information gap which led to the listing, and it is the only local entity actively funding the comprehensive pygmy-owl study series. An intergovernmental effort would move the comprehensive study series forward at a much faster pace. This has been demonstrated through advances realized in a combined survey effort during 1999. Pima County, the United States Fish and Wildlife Service, the Forest Service, the Bureau of Land Management, and Arizona Game and Fish coordinated survey efforts and in so doing, covered several times the land base of the previous year's effort, and discovered new populations of owls in the process.

In summary, as information is gathered about the number of owls, their location and habitat needs, their tolerance for various land uses, their health, and their prospects for long term viability and ultimately for recovery, one of the three major factors that led to the listing will begin to be addressed. This section of the report describes the historical backdrop of pygmy- owl information provided by the early naturalists and the role of riparian habitat, the results of research initiatives to date, and proposals for continuing the study series in order move closer to downlisting, delisting, and recovery of the cactus ferruginous pygmy-owl.

A. Past Efforts:

1. First Records - Bendire and the Rillito -- Between 1860 and 1880, the population of Tucson went from 623 to 7,007. One of the residents who passed through during that period was Captain Charles Bendire of the United States Army, an avid bird collector who went on to publish the Life Histories of North American Birds with Special Reference to Their Breeding Habits and Eggs in 1892 through the Smithsonian Institution. In that text, Bendire recounts that on January 24, 1872, he collected and recorded the first specimen of a ferruginous pygmy owl in Arizona "in the heavy mesquite thickets bordering Rillitto Creek, near the present site of Camp Lowell, in the vicinity of Tucson, Arizona." This fact was brought forward by Mr. Russell Duncan, who, after the pygmy-owl was listed as endangered, researched museum records and identified numerous locations where collectors have found pygmy-owls in the past. Based in part on this historical data, Mr. Duncan has been able to locate owls since the listing, and provide information for the major survey strategies conducted during 1998 and 1999.

Bendire's accounts about pygmy-owls are interesting for several reasons. They are the first in what has become an unbroken chain of tales through time about the surprising boldness possessed by the 6 inch, 2 _ ounce pygmy-owl. While discussing the ferruginous pygmy-owl, Bendire quotes one source that claimed: "small as the Ferruginous Pygmy Owl is, it has been known to carry off young chickens, and it ... even attack[s] ... hens, a bird of greater size than domestic fowls. ... I am aware, from personal observations, that some of our small Owls are the peer, as far as courage is concerned, of the noblest Falcon ever hatched." At the same time Bendire writes about the Life History of North American Birds, he describes a good bit of his own experience. In one episode, he describes a Grouse hunting trip with a military colleague who shot at what he thought was "a baby Owl riding on a rat." Bendire, somewhat more knowledgeable about pygmy-owls, said the "matter was fully explained" as a pygmy- owl that had descended on a gopher, and despite the "rapidly approaching" hunter, "showed no uneasiness whatever" but sat upright on the scrambling gopher's back for "nearly a couple of minutes" while "trying to keep an eye on the sergeant."

Bendire's records also provide a snapshot of the riparian habitat conditions that supported owls in the 1870s. The "heavy mesquite thickets bordering Rillitto Creek" in 1872 quickly became a habitat of the past after Fort Lowell was established. Pygmy-owls were found in the Fort Lowell area in 1881, 1884 and 1916, but records for that site do not exist from that point on. Hydrologist G.E.P. Smith reported (in 1910) that when the U.S. Army post was established at the junction of the Pantano Wash and Rillito in 1872, human impacts and cattle grazing impacts to the grasses and lands caused a "new and unusual flood cut," ... a "wide channel [that] washed the big cottonwoods away." As a result, "the amount of total runoff from the land must have increased very greatly, and yet meanwhile the permanency of the small surface flow in the river was decreased." By the time of Smith's report in 1910, the Rillito had become an ephemeral stream.

One hundred and twenty-five years after the first pygmy-owl was "taken" by Major Bendire, the human population of Tucson rose from about 7,000 to over 455,000 within the city limits, and approximately 800,000 in Pima County. Rillito Creek at Fort Lowell was the subject of a water color (next page) in 1875. Another stretch of the Rillito -- representative of the change in riparian habitat -- is shown from above in 1941 and 1985 on the pages that follow.

2. Early Naturalists and Riparian Habitats

Following in Bendire's footsteps, two more collectors wrote about the pygmy owl before the turn of the century.

In 1893, A.K. Fisher, M.D. wrote about the ferruginous pygmy owl in The Hawks and Owls of the United States in their Relation to Agriculture. Fisher "found this species quite common at New River, thirty-five miles NNW of Phoenix, Ariz., in June, 1892. Referring to it as "this beautiful little Owl," Fisher "secured" two specimens and observed others "among the mesquit [sic] and other thick shrubbery scattered through the groves of giant cactus."

Geo. Breninger, another collector, wrote about the ferruginous pygmy owl in an 1898 issue of The Osprey. "Among the growth of cottonwood that fringes the Gila and Salt rivers of Arizona this Owl is of common occurrence."

Breninger had this to say, in keeping with the tradition of remarking on the seeming confidence of pygmy-owls:

• "Although small in body it is by no means small in fighting capacity, often attacking and bringing to the ground birds whose weight would equal and often exceed that of the Owl. ... I have had them pounce down upon and carry away wounded birds as large as robins."
  
• "With eyes that never sleep and pluck that never diminishes until death, it is a formidable foe even to the large rodents that burrow in the sands and alluvial deposits of the river bottoms."
  

In an interesting twist on the riparian habitat descriptions of early pygmy-owl reports, Breninger states that:

• "In more recent years, and since trees planted by man have become large enough to afford nesting sites for woodpeckers, this Owl has gradually worked its way from the natural growth of timber bordering the rivers to that bordering the banks of irrigating canals, until now it can be found in places ten miles from the rivers."

Other collectors found pygmy-owls during the late 1800s in the Santa Cruz River area, near the San Xavier District of the Tohono Nation, and in the Santa Catalina Mountains.

For the first fifty years of the 1900s, two owl watchers have their names on most of the records. Their sightings were concentrated in the Sabino Canyon, Catalina Mountains and Catalina foothills areas. Records from 1950 through 1980 are in the same area.

Beginning in the 1980s, pygmy-owl recorded sightings begin to occur in the locations now maintaining the largest known populations: northwest Tucson and the Altar Valley.

The map by Russell Duncan found on the next page shows the location of cactus ferruginous pygmy-owls that were collected or sighted in Arizona from 1872 to 1998. On the following page, a comparison from above of the Canada del Oro Wash in 1941 and 1998 reflects the experience of some riparian areas that have undergone rapid transitions to urbanized uses.

3. Study Efforts in the Early 1990s

Although the pygmy-owl has only been listed as endangered since 1997, its tenure for the highest level of species protection under federal law began to be considered as long ago as 1989. Federal action leading up to the listing in 1997 includes the following:

• In 1989, the Service included the pygmy-owl as a category 2 candidate species throughout its range. (55 FR 554)
  
• In 1991, the cactus ferruginous pygmy-owl was elevated to category 1. (56 FR 58804)
  
• In 1992, the Service was petitioned to list the pygmy-owl as an endangered subspecies.
  
• In 1993, the Service initiated a status review, after publishing a finding that the petition indicated listing might be warranted. (58 FR 13045)
  
• In 1994, a 12 month finding was published along with a proposed rule for listing the pygmy-owl as endangered in Arizona, with critical habitat. (59 FR 63975)
  
• The comment period for the proposed rule closed in April of 1995, reopened until the end of May, 1995, and then was reopened again from October to November 1996. One hundred and fifty-six oral or written comments were submitted.
  
• The Final Rule was published in the Federal Register in March of 1997, listing the pygmy-owl as endangered in Arizona, without critical habitat. (62 FR 10730)
  
• Critical habitat was designated in July of 1999. (64 FR 37419)

Despite having a long period of advance warning, the study effort by wildlife agencies and other interested parties prior to the listing was minimal. State and federal wildlife funding typically is not preventive in nature. As a result, land use prohibitions are established before information about recovery and protection is available. The Sonoran Desert Conservation Plan, and Pima County's funding of a comprehensive pygmy-owl study series (which has included giving money to the State to conduct studies) have been the most broad based responses by government entities to deal with pygmy-owl (and other listed and imperiled species) protection in a proactive, instead of reactive fashion. This approach, had it been adopted one decade earlier, would have addressed two of the three reasons for the pygmy owl listing.

• The inadequacy of existing regulatory mechanisms (i.e., lack of conservation planning);
  
• Other factors, including environmental, demographic and genetic vulnerability to random extinction

The knowledge gained by prior planning also could have been used to alleviate the third basis of the listing: the present or threatened destruction, modification, or curtailment of its habitat or range. If the scientific knowledge had been available and development had been directed to less sensitive areas from the outset, the conflicts currently experienced on the northwest side could have been reduced too.

According to a 1998 Status of the Species Report prepared by U.S. Fish and Wildlife:

• 1990 - "Formal surveys for the pygmy-owl on Organ Pipe Cactus National Monument began in 1990, with one pygmy-owl located that year."
  
• 1992 - "Beginning 1992, in survey efforts conducted in cooperation with the Arizona Game and Fish Department, three single pygmy-owls were located on the Monument."
  
• 1993 - "In 1993, ... surveys again located three single pygmy-owls in Arizona."
  
• 1994 - "During the 1993 to 1994 survey period, one pair of pygmy-owls was detected in north Tucson, near the sightings in 1992 and 1993."
  
• 1995 - "Two individual pygmy-owls were found in northwest Tucson during 1995 surveys, and an additional pygmy-owl was detected at Organ Pipe."
  
• 1996 - "In 1996, the Arizona Game and Fish Department focused survey efforts in northwest Tucson and Marana and detected a total of 16 pygmy-owls, two of which were a pair, and two of which were fledglings. Three additional pygmy-owls were detected at Organ Pipe in 1996, with three additional but unconfirmed reports also from Organ Pipe."
  
• 1997 - "In 1997, survey efforts of the Arizona Game and Fish Department located a total of ten pygmy-owls in the Tucson Basin study area .... Eight of the 10 pygmy-owls were found in the northwest Tucson area, and the remaining two were found on the western bajada of the Tortolita Mountains. The total of 10 pygmy-owls from northwest Tucson for the year included one pair which successfully fledged four young. ... Two adult males were also located at Organ Pipe."

Reports from Arizona Game and Fish reflect that survey efforts from 1993 to 1996 had the following scope.

Following the listing of the pygmy-owl in 1997, U.S. Fish and Wildlife Service and Pima County began to fund surveys in addition to the work performed by the Arizona Game and Fish Department. Pima County also funded habitat, telemetry and genetics studies in 1999. The results of post-listing study efforts are discussed in the next section.

B. Current Study Series

1. 1998-1999 Survey and Telemetry Season Results

In 1998, U.S. Fish and Wildlife contracted with Dr. Lisa Harris and Russell Duncan to conduct surveys in the historic range of the pygmy-owl. These surveys were in addition to the work of Arizona Game and Fish.

Scope of USF&W surveys: Harris and Duncan covered 86,000 acres, or 134.4 square miles.
Total owls identified through intergovernmental effort: By covering three to six times the area traditionally surveyed by the State, combined intergovernmental efforts succeeded in identifying 31 owls in 1998 -- up from 12 in 1997.

More details are provided in the U.S. Fish and Wildlife 1998 Status of the Species Report: "In 1998, a total of approximately 31 pygmy-owls were observed, including 11 juveniles in the Tucson basin, and at least two juveniles at Organ Pipe. Two adults were found along xeroriparian drainages in semi-desert grassland in southern Arizona. The Service believes that the increase in the number of observed owls in 1998 is largely due to increased survey effort."

In 1999, a total of five governments funded survey work: U.S. Fish and Wildlife Service, the Forest Service, the Bureau of Land Management, Arizona Game and Fish, and Pima County.

Scope of Pima County surveys: Pima County alone, contracting through the Harris and Duncan team, covered 226,068 acres, or 353.2 sq. miles, which is almost three times the call area covered under the 1998 U.S. Fish and Wildlife Service contract, and it is five to fifteen times the area covered by the State survey efforts conducted between 1993 and 1996.

Total owls identified through intergovernmental effort: The combined intergovernmental effort resulted in the observation of 74 to 78 pygmy-owls in 1999: 41 adults and 33 to 37 offspring: 31 owls were found in Altar Valley; 27 were found in Northwest Tucson; 12 owls were found in Pinal County; and 8 owls were found in Organ Pipe National Monument.

In 1999, Pima County also funded some of the telemetry work performed by Arizona Game and Fish through a $60,000 contract. Based on preliminary information:

• Eleven nest sites were located and monitored and owls at each site were banded
  
• Nest size varied from 2 to 5 babies and at least 16 of 35 fledglings dispersed
  
• At least 13 owls had transmitters (including 3 adult males)
  
• At least 8 juvenile owls were tracked through dispersal
  
• At least 5 owl mortalities occurred during the survey season (2 predations; 2 mortalities when a saguaro arm fell; 1 owl collided with a fence)
  
• One adult male pygmy-owl successfully fledged his offspring after the adult female was predated.

A final report on monitoring and telemetry is due to the County in February of 2000.

2. Harris/Duncan 1999 Survey Report

During the 1999 survey season (from January to July), Pima County undertook the most comprehensive study effort of the decade through a contract awarded to Harris Environmental Group through a competitive proposal process.

Covering over one quarter of a million acres, this search for owls exceeded the scope of all combined efforts during the first five years of surveys conducted by the State before the listing of the pygmy-owl. Pima County also obtained site specific results from the survey effort conducted on numerous future bond projects. This section of the report provides highlights of the Harris study and compares the scope of the effort to prior survey seasons.

In 1998, Dr. Lisa Harris and Russell Duncan were the successful bidders for a contract with U.S. Fish and Wildlife Service. Under that contract, the team surveyed 86,000 acres. Building off this base of 86,000 acres, Harris and Duncan teamed in 1999 to add another 226,000 acres to the search.

After determining where surveys were already being conducted by U.S. Fish and Wildlife, Arizona Game and Fish, the Forest Service, and the Bureau of Land Management, the remaining study area was divided into nine survey districts and two thousand six hundred thirty two (2,632) call stations were established, under the Pima County contract.

To put this in perspective, in 1998, the same team staked out 768 call points. In 1996, Arizona Game and Fish worked from a total of 356 call points. The 1999 survey effort allowed the research to take place in areas that have not been surveyed in the past.

It is significant that at 348 of the 2,632 call stations, there was a "mobbing" response from other birds to the surveyor's tape recorded pygmy-owl calling. Mobbing is a "defensive aggressive response to the broadcast call, such as scolding vocally and/or attacking physically (i.e. swooping in on the caller)." (P. 25)

While mobbing can mean many things, it may indicate that "local birds are familiar with pygmy-owls." (P. 30) The report states that: mobbing "behaviors may be evidence that the birds have had experiences with pygmy-owls, either in the area surveyed, or other places (Mexico and Central America) if the birds are migratory (i.e., both flycatcher species, western kingbird, Lucy's warbler, lesser nighthawk, and broadbilled hummingbird)." The report recommends that "areas where mobbing occurred be resurveyed in future efforts."

The pages that follow show the survey study area for the 1999 effort, the location of the transects where call stations were established, and the locations where mobbing occurred in response to broadcast calls during 1999.

The final report, attached in the appendix, contains these highlights.

• "The team of Harris Environmental Group, R.B. Duncan &Associates, and Dames &Moore, Tucson, conducted surveys between mid-April through June 1999 on federal lands, Arizona State Trust lands, Pima County holdings, and some private lands" ... in "portions of eastern Pima County and western Santa Cruz County." (P.3)
  
• "To avoid duplication of effort and confusion, surveys were coordinated with others conducting pygmy-owl surveys in Arizona, such as the Coronado National Forests, BLM, USF&Wat Buenos Aires and Cabeza Prieta National Wildlife Refuges, and AGFD. For example, in Altar Valley, we split up the area between 2 survey efforts. The USF&Wsurveyed lands south of the Arivaca and Bata Mote roads intersection, and we surveyed areas north of the intersection." (P. 19)
  
• "The overall objective of the 1999 cactus ferruginous pygmy-owl survey funded by Pima County was to survey as much suitable habitat in selected areas of Pima County as feasibly possible, and if time permitted, survey the areas twice." (P. 8)
  
• "Pygmy-owls found in Sonoran Desertscrub habitats are typically found associated with structurally diverse stands of desert riparian scrub with saguaros along washes. Such habitat is often referred to as xeroriparian vegetation. These washes have no permanent water flow; instead, flow is [ephemeral] and based on seasonal rainfall as well as strength and duration of individual storms. Desert riparian scrub vegetation is easily recognizable by the presence of a linear assemblage of trees and shrubs that grow along the wash. ... Just prior to listing the species as endangered, all of the known pygmy-owls were documented in such Sonoran Desertscrub habitat." (P. 11)
  
• "All of the pygmy-owl sightings in Arizona identified between 1993 and 1997 were in, or peripheral to, dense desert riparian scrub bordering dry desert washes." (P. 13)
  
• "Survey efforts conducted by Harris and Duncan in 1998 located pygmy-owls in the Altar Valley on the Buenos Aires National Wildlife Refuge. Prior to 1998 only one recent site was known from the Altar Valley on private lands near Sasabe. Habitat at two of the sites in the Altar Valley and on the Refuge were like many of the historical descriptions by pioneering naturalists from the late 1800s and early 1900s, i.e., Sonoran riparian deciduous forest, woodland, and scrub habitat." (P. 13)
  
• "We targeted areas between occupied pygmy-owl territories that contained suitable habitat and areas that contained potential suitable habitat but were not necessarily adjacent to occupied habitat. Our study area consisted of approximately 1,612,919 acres in the:

[1] Altar Valley,
[2] Avra Valley,
[3] Saguaro National Park (East and West units),
[4] Catalina Mountain foothills,
[5] Rincon Mountain foothills,
[6] Rincon Valley,
[7] Redington Pass,
[8] portions of Marana and Oro Valley, and
[9] Santa Cruz River between Continental Road and Rio Rico in Santa Cruz County."

These 9 areas were chosen for 3 reasons.

First, the undeveloped areas of Avra Valley, Saguaro National Park (East and West Units), and portions of the Santa Cruz River contain suitable, but previously unoccupied pygmy-owl habitat in the recent past.

Second, the Catalina Mountain foothills, Rincon Mountain foothills, and portions of Oro Valley, contain vegetation characteristic of pygmy-owl habitat but with higher density housing development than that found in occupied pygmy-owl territories in northwest Tucson.

Third, the Altar Valley area and the Marana area between I-10 and the Dove Mountain housing development contains suitable habitat and are adjacent to known occupied territories." (P. 16)

Within the 9 survey districts, the following reflects the distribution of call points.

DISTRICT	SUBAREAS			TOTAL CALLS
AVRA VALLEY				932 stations
Silverbell East		Avra/West of Avra	Gap Tank
Silverbell West		La Tortuga Butte	Green Reservoir
Waterman Peak		Cocoraque Butte	Three Points
CATALINA FOOTHILLS				855 stations
Tucson North		Sabino Canyon	Agua Caliente Hill
ALTAR VALLEY				186 stations
Cerro Colorado		Kitt Peak	Stevens Mountain
Las Guijas		Palo Alto Ranch	Samaniego Peak
TUCSON MNT PARK / SAGUARO NAT PARK (WEST UNIT)				142 stations
Cat Mountain		Brown Mountain	Avra
ORO VALLEY				124 stations
Oro Valley		Tucson North
RINCON MNTS / SAGUARO NAT PARK (EAST UNIT)				123 stations
Vail		Rincon &TV Peak	Mount Fagan
MARANA				117 stations
Marana		Ruelas Canyon
SANTA CRUZ RIVER				104 stations
Rio Rico		Tubac	Amado
Green Valley		Esperanza Mill	Pena Blanca
REDINGTON PASS				49 stations
Redington		Peppersauce Wash	Buehman/Soza Canyon
TOTAL				2,632 stations

Report Recommendations:

One of the common refrains before the 1999 survey season was that a broader survey effort might show that there are perhaps more owls than have been detected. By targeting areas between occupied pygmy-owl territories that contained suitable habitat, and areas that contained potential suitable habitat but were not necessarily adjacent to occupied habitat, the Pima County effort began to address this issue. Pygmy-owls were not detected in the 329 transects, although mobbing responses at almost 350 of the 2,632 call points suggests that some of these areas may support pygmy-owl populations. The recommendations for future survey efforts include:

• Begin surveying earlier in the season, if funding is available.
  
• Survey areas where mobbing occurred within the following survey districts:
  
  - Avra Valley
  - Catalina Foothills
  - Marana
  - Santa Cruz
  
• Conduct a broader survey effort in Altar Valley, which (along with the Tohono O'odham Nation) may support the largest extant pygmy-owl population in Arizona.
  
• Survey areas that have not been completely covered by past efforts, including:
  
  - Redington Pass, particularly Bellota Ranch
  - Ciengea Creek Preserve
  - Rincon Valley and Saguaro National Park (East Unit)
  - Santa Cruz River corridor south from Continental Road
  - Amado area
  - Altar Valley, west of highway 286.
  
• Survey near the Arizona border in Mexico, particularly south of Altar Valley and the Tohono O'odham Nation.
  
• Survey areas in Mexico where historical populations have been documented, including:
  
  - Sonoyta
  - Caborca
  - Magdalena
  - Between Guaymas and Empalme
  - Obregon
  - Agiobampo
  - Guiracoba
  - Alamos
  
• Survey in Pinal County, beginning just north of the Pima County line where known populations exist, and moving north toward Maricopa County.
  

Many of these suggestions will be carried out. A description of research efforts underway for the 2000 survey season is provided below.

C. Ongoing and Future Research

1. Genetics Study -- In March of 1999, the County entered into a contract with Mr. Glenn Proudfoot through the University of Texas A&M for studies of DNA sequence data which will address two issues regarding genetic viability of Ferruginous Pygmy-Owl populations in Arizona, and the feasibility of reintroduction, and thus serve as a framework for future management efforts: (1) Are Arizona pygmy-owls lacking genetic variation relative to healthy populations, and (2) Are populations genetically differentiated from each other? Work is ongoing and a final report is due to Pima County by March of 2000.

2. Telemetry and Habitat Analysis -- The workplan accepted by the Board includes telemetry studies to gather information necessary to tailoring recovery and conservation plans to protect the owl and the economy. Questions that are being addressed include: Where do pygmy-owls go upon dispersal? How far do they travel? Is there exchange with other populations? Are they residents of specific areas, rather than migratory? How tolerant are they of various urban occurrences? How adaptable are they? Habitat assessments are also being conducted to better describe the habitat needs of the pygmy-owl and to move toward the ability to prescribe the habitat where pygmy-owls could breed, nest, feed and rest. Arizona Game and Fish, under a contract with Pima County, will issue a final report to the County by February 15, 2000.

3. Studies in Mexico and Pima County in Fiscal Year 2000 -- The Regional Office of the U.S. Fish and Wildlife Service has funded $120,000 for pygmy-owl studies during the year 2000 survey season. Estimates are that $28,000 of this amount will fund telemetry and habitat work within Pima County and Arizona, while $92,000 will fund studies in Mexico, including surveys, habitat assessment, and assessments of dispersal potential as well as threats and constraints to cooperative management across the border. These studies will continue to build the knowledge base established during the past two survey seasons when owls were located near the international border. Genetics information about owls in both countries will also begin to address information gaps that led to the listing of the pygmy-owl.

4. Recovery Plan -- In the text of the Federal Register Rule, the Service described the compressed time frame they were working under to meet the deadline set by Court order, and explained that the recommendations from the Recovery Team process, now underway, will allow the Service to reevaluate the current designation. Publication of the Recovery Plan by United States Fish and Wildlife Recovery Team is anticipated in the upcoming months. Recovery Plans typically have a research agenda with a specific budget. Success in funding the research needs identified within the Recovery Plan will lead to a quicker resolution of the dilemmas surrounding this listing.

The implementation of the Recovery Plan recommendations will provide the most comprehensive and studied approach to addressing one of three basic factors that led to the listing: i.e., the existing data gaps about the environmental, demographic and genetic vulnerability of the pygmy-owl.

5. Artificial Nest Box Study -- Given the low number of known pygmy-owls, protective management strategies should be invoked to conserve the existing population. Artificial nest structures have been used in Texas with success. Nest box availability for Arizona owls might reduce predation and increase the ability to gather life history data. A proposal will be submitted to the National Fish and Wildlife Foundation and other potential funding sources to begin nest box management strategies in Arizona.

III. Regulatory and Legal Actions

A. Past Actions

1. Listing of the Pygmy-Owl -- The discussion thus far has focused on the extent to which research initiatives will resolve one of three prongs that led to the listing of the pygmy-owl, i.e., identifying environmental, demographic and genetic vulnerabilities to random extinction. This section of the Pygmy-Owl Update report will concentrate on the other two major prongs of the listing: the inadequacy of existing regulatory mechanisms; and the present or threatened destruction, modification, or curtailment of its habitat or range. Since the listing of the pygmy-owl, federal guidelines have been formulated for survey protocol and take guidance, and critical habitat has been designated. Court decisions have been rendered on habitat designation and permitting issues. A decision is pending from the 9th Circuit on whether a particular construction plan will constitute "take" in the form of harm or harassment. These rulings and regulations are summarized below in the context of two major factors for the listing.

Policy and planning factors underlying the listing -- inadequacy of existing regulatory mechanisms -- On the regulatory side, the Final Rule listing the pygmy-owl as endangered noted that protection is not offered under State law, and this remains true three years later. Another factor in the decision to list the owl was that "no conservation plans or habitat restoration projects specific to the cactus ferruginous pygmy-owl exist." The Sonoran Desert Conservation Plan will address this deficiency on a County-wide scale, to the extent it is formulated, adopted and implemented by government entities within the region. Pima County is also pursuing riparian protection and restoration projects that will enhance the viability of the pygmy-owl. A third factor discussed as part of the listing is that "most Federal agencies have policies to protect species .... However, until agencies develop specific protection guidelines, evaluate their effectiveness, and institutionalize their implementation, it is uncertain whether any general agency policies adequately protect the pygmy-owl and its habitat." Since all relevant federal agencies have agreed to participate in the conservation planning process, this aspect of the listing may be resolved in the future. Finally, the listing document notes that "the Federal Clean Water Act contains provisions for regulating impacts to river systems and their tributaries. These mechanisms have been insufficient to prevent major losses of riparian habitat, including habitats occupied by the pygmy-owl." Within the last two weeks, a federal district court enjoined aspects of the Army Corps nationwide permitting program. Federal agency actions taken in response to this injunction might adequately address this factor in the original listing. A more detailed discussion of the Court order is found below.

Resource utilization factors that led to the listing -- habitat destruction, modification, or curtailment -- The listing document states in part that "the pygmy-owl is threatened by past, present, and potential future destruction and modification of its habitat, throughout a significant portion of its range in Arizona." The impact of urbanization and in particular, population growth on the northwest side were factors in the listing. At the time of the listing, the Service stated that it was "aware of five specific housing and development projects operating or in the planning stages that would affect habitat where the majority of birds in Arizona currently exist."

The aerial photos and maps on the next pages show (1) the build-out of occupied pygmy-owl habitat around Arthur Pack Park from 1983 to 1999, and (2) the committed and vacant land in the same area. Both indicate that growth pressures on the northwest side exceed the impact predicted by the Service at the time of listing.

Resource utilization factors that led to the listing --- habitat destruction, modification, or curtailment (continued) - In addition to the impacts of urbanization in the area of a known owl population, the Final Rule describing the reasons for the listing identifies riparian losses as a major factor leading to the listing of the pygmy owl. The Rule states:

• "The majority of these losses are due to destruction and modification of riparian and thornscrub habitats. It is estimated that between 85 to 90 percent of low-elevation riparian habitats in the southwestern United States have been lost or modified."
  
• "These alterations and losses are attributed to urban and agricultural encroachment, woodcutting, water diversion and impoundment, channelization, livestock overgrazing, groundwater pumping, and hydrologic changes resulting from various land use practices."
  
• "In summary, very few pygmy-owls remain throughout the pygmy-owl's historic range in Arizona due to extensive loss of habitat. In addition, the remaining pygmy-owl habitat faces numerous and significant threats."

The Sonoran Desert Conservation Plan includes a Riparian Restoration Element that will provide a more comprehensive assessment of the decline in water, riparian habitat and riparian dependent wildlife. In order to gain a sense of the magnitude of riparian losses, four questions help to establish preliminary benchmarks:

(1) What amount of water maintained the Upper Santa Cruz sub-basin ecosystem before agricultural and development uses competed for water resources?

(2) What amount of water maintains the vegetation community, and the various types of vegetation we have today?

(3) How adequate is the current resource base from the perspective of maintaining suites of species and from the perspective of compliance with federal law?

(4) What is the relationship of current conditions and pre-development conditions to the Sonoran Desert Conservation Plan?

(1) What amount of water maintained the Upper Santa Cruz sub-basin ecosystem before agricultural and development uses competed for water resources? The illustration on the next page describes the baseline conditions for wildlife within the Santa Cruz sub-basin before water was mined and diverted for intensive human consumptive uses. In pre-development conditions, the amount of water available for aquatic and riparian habitat was equal to the net natural recharge rate, on the order of 51,000 acre feet per year. Current volumes, which support about 6,000 remaining acres of groundwater dependent vegetation, are around 12,000 acre feet per year. The 39,000 acre-foot difference between conditions at the beginning and end of the century reflects how great the alteration of water resources from wildlife to human uses has been. This estimate of water diverted from wildlife use does not consider the areas outside the Upper Santa Cruz subbasin such as the Santa Cruz River outside the Tucson Active Management Area, Arivaca Creek, Sopori Wash, Cienega Creek, and the San Pedro River. In these areas, diversions of water and groundwater pumping may have also diminished aquatic and riparian habitat for wildlife. This estimate also does not include natural off-channel springs whose flows are now diverted or eliminated.

(2) What amount of water maintains the vegetation community and the various types of vegetation we have today? The water demand of an acre of habitat is different depending on whether the vegetation type is hydroriparian (such as cottonwood), mesoriparian (such as mature, dense mesquite), xeroriparian (such as less dense mesquite), or desert upland (such as native grass or creosotebush). Meso- and hydroriparian vegetation are groundwater dependent, i.e., they use water stored underground for their life cycles.

Table 1 quantifies the water needed (per unit area) to support various types of native vegetation which could occur or might occur in or along our watercourses. These figures are derived from staff's review of existing literature. Whereas desert upland vegetation requires the least amount of water, young cottonwoods and willows require the most. Desert upland vegetation can persist without artificial irrigation, but young cottonwoods and willows require nearly constant moisture until their root systems mature. Also listed is the water needs of various other features for comparison purposes. A typical park is irrigated with enough water to support mesoriparian vegetation. A pecan grove uses about as much water as a grove of cottonwood or willow trees or evaporation from a lake.

Table 1. Water Needs for Vegetation (in Tucson area)
Type of Vegetation	Water Needs (acre-feet/acre)
Desert Upland
Saltbush, native grass	0.5 - 1
Creosotebush	0.8
Xeroroparian
Less dense mesquite	1.6
Mesoriparian
Mature, dense mesquite	3.0
Hydroriparian
Mature cottonwoods	5.0 - 5.8
Young cottonwoods, willows	8.3
Wetlands
Cattails	6.9
Other features
Open water	5.4
Park with turf and trees	2.9 - 4.0
Pecan grove with ground cover	5.7
Golf course with water features	4.7

Current Santa Cruz Subbasin Water Budget -- This table allows water budgets to be determined by habitat type, and by the quality of the vegetation. A relatively low annual rate of evapotranspiration (2 AF of water/acre of land) is assumed in determining that the volume of water currently supporting 6,000 acres of vegetation in the Upper Santa Cruz subbasin is 12,000 acre-feet per year. The basis of this assumption incudes factors such as: (1) the groundwater table decline in many places has already eliminated cottonwood-willow forest, and has caused canopy dieback of mature mesquite trees and decreased leaf volumes, and (2) the vegetation in many riparian areas is young and scrubby due to previous disturbance.

Current Eastern Pima County Hydromesoriparian Vegetation Water Budget -- A similar analysis based on the amount, type and quality of habitat can be performed for Eastern Pima County. Arizona Game and Fish Department (AGFD) estimated based on early 1990's mapping that there were 7402 acres of hydromesoriparian vegetation in eastern Pima County, primarily along Sabino Canyon and Cienega Creek. Of this amount, AGFD estimated there were 1049 acres of cottonwood-willow and 3430 acres of mesquite. Pima County mapped 8241 acres of hydromesoriparian vegetation in eastern Pima County in the early 1990's, but this mapping did not extend into the existing public reserves. A figure of approximately 10,000 acres of hydromesoriparian vegetation is not unreasonable for eastern Pima County, including those portions of the Santa Cruz and San Pedro watersheds.

The water demand to support existing hydromesoriparian vegetation is probably around 3 feet per acre, considering that a) some riparian zones are at a higher elevation than Tucson and therefore require less water, and b) cottonwood-willow is a low percentage of the total area of hydromesoriparian vegetation.

Therefore 30,000 acre feet is an estimate of the total water needs of existing vegetation.

(3) How adequate is the current resource base from the perspective of maintaining suites of species and complying with federal law? The ability to measure reductions in water budgets over time and the commensurate reduction in the size and quality of vegetation communities, helps to explain why we find a disproportionate number of riparian dependent species imperiled today. Science planning for the Sonoran Desert Conservation Plan has been underway since the Board ordered the Plan to be developed. Some of the early findings and understandings of the planning process to date indicate that the current resource base is not sufficient to maintain suites of species much less reverse the direction of continued listings under the Endangered Species Act. These include that:

• 75 to 85 plants and animals in Pima County are in need of protection under the conservation plan. A large percent of these, and a disproportionate number of extirpated native species are (or were) dependent on riparian or aquatic habitat which is now lost.
  
• Continued groundwater mining has contributed to substantial damage to riparian environments and ecosystems. It is estimated that 60 to 85 percent of Sonoran Desert wildlife depends on this riparian habitat for some part of its life cycle, including the long list of endangered, extirpated and imperiled species.
  
• Loss of riparian environments has been identified as a factor contributing to the decline in the population of pygmy-owls.
  
• Riparian habitat itself has been targeted by the Science Technical Advisory Team for protection under the Sonoran Desert Conservation Plan. A recent report to the Team confirms the need for such protection. In answer to the question of what percentage of each vegetation community exists in public preserves, riparian habitat was found to be largely unprotected.

The Riparian Restoration Element of the Sonoran Desert Conservation Plan recognizes the importance of riparian areas in achieving a balanced and sustainable ecosystem in Pima County. To meet Federal Endangered Species Act criteria, we will be required to commit to significant riparian restoration and protection. Without such, the balance of the Conservation Plan is essentially meaningless.

(4) What is the relationship of current conditions and pre-development conditions to the Sonoran Desert Conservation Plan? Just restricting analysis to the Upper Santa Cruz subbasin, we find that if water is to be allocated for riparian and aquatic restoration sufficient to recover a level of natural function, something on the order of 39,000 acre-feet per year would be needed. The present water budget of 12,000 acre feet is supporting an often scrubby 6,000 acres of vegetation that has populations of riparian dependent species crashing at an increasing rate. A balance point between the inadequate ecosystem in existence today, and the historic conditions of 51,000 acre-feet/ year is likely to be the baseline recommended by the Science Team and Steering Committee of the Sonoran Desert Conservation Plan. Similar analysis can be performed to determine baseline resource goals on a smaller or larger scale within Pima County. Over half of the remaining 6000 acres of groundwater dependent vegetation is jeopardized by existing and future groundwater pumping, as well as outright habitat destruction. Measures are needed to reduce groundwater pumping in the vicinity of riparian areas along Sabino Creek, Tanque Verde Creek and Agua Caliente Wash, and to prevent increased pumping along Rincon Creek. Substitution of effluent for groundwater-based turf uses will be needed to protect these systems, among other measures.

2. Protocol and Take Guidance

On August 13, 1998 the United States Fish and Wildlife Service and the Arizona Game and Fish Department jointly announced by publication in the Federal Register two notices of availability and the opening of a comment period for: (1) new guidance for determining if "take" of a cactus ferruginous pygmy-owl has occurred and (2) new survey protocol for the pygmy-owl. The comment period was subsequently extended and closed on March 14, 1999.

Read together, the proposed take guidance and survey protocol differ from the past in at least the following ways:

1. The "take" guidance adds several counties to the covered geographic area. Now, in addition to Pima County, the guidance applies within defined areas of Maricopa County, Southeastern Yuma County, Graham, Greenlee, and Gila Counties, Santa Cruz County, and Cochise County. The affected area of Pima County does not include the "Tucson urban area," defined according the guidance flowchart as follows: "The urban area of Tucson is defined as south of River Road, west of Harrison Road, north of Irvington Road, and east of Interstate 10."
   
2. The "take" guidance adds riparian habitat. In the past, only desertscrub habitat was included. Now riparian vegetation such as cottonwoods, willows, and mesquites growing along watercourses are included within the scope of the guidelines.
   
3. Both the "take" guidance and the proposed survey protocol describe that there is an expansion of the survey effort "from one year to two years prior to actions that may impact the owl or its habitats."
   
4. Other proposed survey protocol changes include:
   
   The survey period will be 6 months (January to June) instead of 9 months.
   
   The survey frequency will be increased from one survey (during one year) to three surveys per year (for two consecutive years). A minimum of fifteen days must separate surveys, although 30 days is recommended. One survey must take place between February 15 and April 15, during pygmy-owl breeding season.
   

Before the start of the next survey season, it is expected that the Service will exercise one of several options: the newly proposed protocol and guidance could become the advisory standard; the existing guidance could remain in place as the advisory standard; or the Service could decide not to issue any advisory standard to assist landowners in assessing their risk of liability under Section 9 of the Endangered Species Act, which prohibits "take" of an endangered animal, or a revised standard may be issued.

3. Critical Habitat Designation

On July 12, 1999, the United States Fish and Wildlife Service published in the Federal Register its designation of 731,712 acres as critical habitat for the cactus ferruginous pygmy-owl (pygmy-owl). The table below describes the land ownership of proposed critical habitat within Pima County as published in the July 1999 rule.

What is Critical Habitat? Critical habitat is defined in the U.S. Code as: "the specific areas within a geographic area occupied by the species at the time of listing ... on which are found physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and specific areas outside the geographic area occupied by the species at the time it is listed ... upon a determination of the Secretary that such areas are essential for the conservation of the species."

What Factors Went into Determining Critical Habitat? In the December 1998 Federal Register notice, the Service described factors that went into determining areas that are essential for the survival and recovery of the species, including: (1) "In an effort to map areas essential to the conservation of the species, we used data on known pygmy-owl locations to initially identify important areas. We then connected these areas based on the topographic and vegetative features believed most likely to support resident pygmy-owls and / or facilitate movement of birds between known habitat areas." (2) "We did not propose all pygmy-owl historical habitat as critical habitat. We proposed only those areas that we believe are essential for the conservation of the pygmy-owl and in need of special management or protection." (3) "We used the best scientific information obtainable in the time allowed by the court."

How is Critical Habitat Applied? The designation of critical habitat applies to federal projects and entails these factors, according to literature from the Service: Critical habitat is a "classification used to identify areas in which Federal agencies need to exercise special care to avoid damage to federally listed endangered and threatened species." "Federal projects and activities [within critical habitat] are individually evaluated by the implementing agency and the U.S. Fish and Wildlife Service ...." In other words, landowners with projects in critical habitat that have a federal nexus will have to consult with the Fish and Wildlife Service. This should not represent a change in practices for those who understand their liability under the Endangered Species Act. Until the County has a Section 10 permit, potential Section 9 liability exists, regardless of the status of habitat designation or protocol standards. When Pima County receives its Section 10 permit under the Endangered Species Act, the critical habitat designation will be replaced by the terms of the conservation plan. Therefore, the U.S. Fish and Wildlife Service continues to recommend that development of a region-wide, multi-party, comprehensive conservation plan is the preferred long-term option to allow for the survival and ultimate recovery of the pygmy-owl in Arizona.

B. Recent Army Corps Nation Wide Permit (404) Injunction -- Wash Protection

In October of 1999, in the case of Defenders of Wildlife v. Lt. General Ballard / United States Army Corps of Engineers, a United States District Court Order (1) enjoined the Army Corps of Engineers "from any further authorization under Nation Wide Permits 13, 14, and 26, until the [Corps] conducts a regionally based, programmatic impact analysis," and (2) the Corps was further ordered to "engage in Section 7 consultation with the Fish and Wildlife Service regarding the effect of its Nation Wide Permit program on the pygmy-owl and its habitat in this region." This section of the report discusses the meaning of the District Court Order, and opportunities for pursuing a broad solution to the fragmentation in the federal permitting process that exists once endangered species issues arise.

1. The injunction on the Army Corps of Engineers "from any further authorization under Nation Wide Permits (NWP) 13, 14, and 26, until the [Corps] conducts a regionally based, programmatic impact analysis." A few questions and answers are found below to convey the meaning and impact of the District Court injunction.

Question 1: What is Section 404 of the Clean Water Act?

Answer 1: In 1977, the Clean Water Act amended the 1972 Federal Water Pollution Control Act to establish the framework for regulating the discharge of pollutants into the waters of the United States. Section 404 of the Clean Water Act provides authority to the Army Corps of Engineers to permit discharges under certain circumstances.

Question 2: What government agencies are involved in administering Section 404?

Answer 2: From Pima County's perspective, the Administration of Section 404 involves the U.S. Army Corps and the Environmental Protection Agency. The U.S. Fish and Wildlife Service is involved if the 404 permit activity may affect a species listed under the ESA.

Department of Defense: Section 404 of the Clean Water Act allows the Secretary of the Army to issue permits to discharge dredged or fill material into the waters of the United States.

Environmental Protection Agency: The guidelines for this activity are developed by the Administrator of the Environmental Protection Agency (EPA), along with the Secretary of the Army. The EPA can deny, prohibit, restrict or withdraw the use of disposal site areas when discharge would have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. EPA regulations provide a definition for "unacceptable adverse effect."

Department of the Interior: Definition for fish and wildlife protection also calls on the expertise of the U.S. Fish and Wildlife Service. In addition, the Service consults with the Army Corps under Section 7 of the ESA if the issuance of a permit may affect a listed species.

Pima County Government: As these federal entities work to have edges of their standards and processes align on various permit issues, Pima County -- in both its projects and permitting practices -- is guided by the resulting federal decision. Under Title 16 of the Pima County Code, floodplain use permits require the County engineer to "review the proposed development to assure that all necessary permits have been received from those governmental agencies from which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act...."

Question 3: What is a Nation Wide Permit and how does it compare to other types of permits that are issued under the Clean Water Act?

Answer 3: Under Section 404(e), the Secretary of the Army can specify low impact activity that is exempt from individual permit (project-by-project) requirements. Individual permits are available, but require more time since an Environmental Assessment or Environmental Impact Statement is prepared for the project that would be permitted. For Nationwide Permits, the National Environmental Policy Act analysis is done on a programmatic level.

In 1996, the Department of Defense published Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits. Forty NWP categories are listed, covering activities such as Structures in Artificial Canals (NWP 2); Scientific Measurement Devices (NWP 5); Utility Line Discharges (NWP 12); Single Family Housing (NWP 29); Cranberry Production Activities (NWP 34); and Farm Buildings (NWP 40).

All Nationwide Permits are subject to General Conditions in addition to the specific conditions of the particular permit. There are general conditions for protection of endangered species and historic properties.

Under the general condition relating to endangered species, "no activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation under the ESA, or which is likely to destroy or adversely modify the critical habitat of such species."

Question 4: What Nationwide Permits were enjoined by the District Court?

Answer 4: The District Court enjoined further authorization under Nation Wide Permits 13, 14, and 26 until the Army Corps conducts a regionally based programmatic impact analysis.

• NWP 13 covers "bank stabilization activities necessary for erosion prevention."
  
• NWP 14 covers "fills for roads crossing waters of the United States (including wetlands and other special aquatic sites)."
  
• NWP 26 covers "discharges of dredged or fill material into headwaters and isolated waters." This permit was set to expire.
  

Question 5: What issues remain to be clarified?

Answer 5: On October 25, 1999, the Department of Justice filed in District Court for reconsideration of the Order, or in the alternative, for clarification of the Order. The Corps "believes that this injunction should properly be limited to NWPs 13, 14, and 26 in areas designated as critical habitat or that contain suitable habitat in Pima and Pinal Counties until the Corps completes an environmental analysis (EA) for this 'region.'" Clarification of the Order will provide Pima County with information about:

(1) Whether the injunction applies to more than Nationwide Permits 13, 14, and 26;

(2) Whether the injunction applies to particular permits in all of Pima County or in a more circumscribed area. Critical habitat is defined on the map, but suitable habitat is a greyer area. Proposed take guidance and survey protocol for pygmy-owls includes riparian habitat.

2. The Order to "engage in Section 7 consultation with the Fish and Wildlife Service regarding the effect of its Nation Wide Permit program on the pygmy-owl and its habitat in this region.

Under one part of the District Court Order discussed above, the Corps must complete a programmatic impact analysis for NWPs 13, 14 and 26. The Court further Ordered that the Corps must consult with the Service about the effect of the program on the pygmy-owl and its habitat. The information gathered during the cumulative impact analysis should correspond with some of the information that is being gathered by the Science Technical Advisory Team for the Sonoran Desert Conservation Plan as the biological evaluation for Pima County is undertaken. Likewise, the Section 7 consultation Ordered by the Court for the federal agency should be parallel to the Section 10 negotiation that Pima County undertakes with the Service to establish the terms of the conservation plan, since both these processes address the effects of urban development on native species and their habitats.

3. Fragmentation in the federal permitting process for endangered species issues.

As Pima County moves forward with the Sonoran Desert Conservation Plan, and the federal entities move forward with their assessment of permitting programs on wetlands, a number of deficiencies within and between the programs can be addressed.

• The varying standards that exist between local and federal entities could be aligned, so that the resource is effectively protected and the permit seeker gained assurances.
  
• Permitting programs for water and land protection could be streamlined and work in a coordinated fashion.
  
• The application of standards could be more accurately tailored to conditions within the Pima County environment. For instance, the current federal definitions of "wetland" and "waters of the United States" does not work for riparian areas in Pima County. The east coast perspective on protecting riparian ecosystem is not particularly effective here, where the watertable is overdrafted and conditions are arid. In fact, the Army Corps definition has the effect of protecting the most valuable riparian habitat in Pima County the least. A better definition would capture riparian vegetation farther from the channel, so that the system itself -- and what it offers in terms of species protection -- would be covered.

4. Summary -- The District Court's scrutiny of federal permitting practices might result in a shared study effort and a more effective and coordinated permit program at the federal and local level when impacts are better understood, and advance planning allows permit seekers to know where biologically sensitive areas are so they can be avoided.

D. Pending Decisions - Amphi Litigation

Since March of 1998, construction activities on land slated for a future high school have been enjoined as litigation has been pursued through both the District Court and the Ninth Circuit Court of Appeals. A decision from the Ninth Circuit is anticipated in the near future.

The issues presented by the Defenders of Wildlife include:

• "Did the district court err in holding that the construction and operation of a large high school complex will not 'harass' or 'harm' pygmy-owls within the meaning of section 9 of the Endangered Species Act, where the district court found that one or more owls are in the immediate vicinity of the construction site, and where leading experts on pygmy-owls testified that defendants' activities are likely to impair the owl's essential biological functions?"
  
• "Did the district court abuse its discretion by disallowing plaintiffs from obtaining and presenting additional evidence concerning the impacts of the project on pygmy-owls?"
  

The arguments before the Ninth Circuit include:

• "construction activities will likely 'harass' or 'harm' the pygmy-owls which the court found were in the immediate vicinity of the construction site;"
  
• "opinions of the leading experts on a species [should] trigger the section 10 permitting process;" and
  
• if "evidence produced by plaintiffs was not adequate to invoke the ESA's safeguards, then the district court committed clear error by excluding addition critical testimony and evidence."
  

The decision from the Ninth Circuit might provide guidance on the reach of the Section 9 prohibition on take. Questions such as what constitutes 'occupied habitat' and how much habitat can be impacted outside the Section 10 permitting process might also be addressed.

IV. Conclusion

Three major factors contributed to the listing of the pygmy-owl as endangered in 1997:

1. The original riparian habitat of the owl has been destroyed, modified or curtailed, and the Sonoran desertscrub habitat where most remaining owls live is under development pressures.
   
2. The existing regulatory mechanisms were deemed inadequate and no conservation planning for the pygmy-owl was in place;
   
3. The pygmy-owl population was extremely small and apparently declining, and information to protect the pygmy-owl was not available. In the absence of information to the contrary about life history and status, it appears that it is vulnerable to random extinction due to the interactions of environmental, demographic and genetic factors.

Since the 1997 listing, the pygmy-owl has been the source of much discussion. When the rulings and research efforts that have taken place are viewed in the context of the basic problems that caused the listing, it becomes clear that:

At times the underlying resource depletion problem has been exacerbated since the listing. The development pressures on the northwest side exceed what the Service described as "potential threats to pygmy-owl habitat" in 1997.

Some factors that led to the listing have not yet been addressed. In terms of resource protection, there has not been a region-wide effort to protect riparian habitat, although such an effort may result from the recent District Court decision enjoining certain permitting practices in riparian areas until an impact analysis is performed and the program is reviewed in consultation with the U.S. Fish and Wildlife Service.

In certain areas, efforts toward downlisting, delisting and the recovery of the pygmy-owl have started. The research strategies to gain knowledge about the pygmy-owl, and the initiation of the regional multi-species Sonoran Desert Conservation Plan, hold the most promise for resolving the current dilemmas caused by the listing of the pygmy-owl, and for reducing or avoiding future listings of endangered animals.

Meaningful financial support for these efforts has been limited to federal and county contributions.

A lasting solution to endangered species listings will occur only when these research efforts are completed and the resulting plans are implemented.