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l' W AIS Document Retrieval 002700 approved Orange County NCCP plan as a result of this critical habitat designation. The Audubon Society manages one of the largest remaining flycatcher populations in California, and The Nature Conservancy (TNC) manages several areas with high recovery potential. TNC maintains a cowbird trapping program in Orange County that provides indirect benefits to potential nesting habitat for the southwestern willow flycatcher. In addition to public and private lands, critical habitat occurs on land belonging to the Yavapai-Apache Tribe in Arizona and on land _belonging to the Pala Mission Tribe in California. Pursuant to Tribal sovereignty and the Service's associated responsibilities, as well as the recent Secretarial Order for American Indian Tribal Rights, . Federal-Tribal Trust Responsibilities and the Endangered Species Act, the Service has consulted with both tribes prior to completion of this rule in order to ensure that tribal cultural values, and reserved hunting, fishing, gathering and other rights were considered in this designation. The Service will continue to ~ork cooperatively with the tribes and remain available to assist in development of conservation plans for the area that meet both the intent of the Act and Tribal needs. It is the policy of the Service to identify to the maximum extent practicable at the time of listing those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of the listing on proposed or on-going activities. These activities are listed in the final rule listing the southwestern willow flycatcher (60 FR 10694) . Likewise, section 4(b) (8) requires, for any proposed or final regulation that designates critical habitat, a brief description and evaluation of those activities (public or private) that may adversely modify such habitat or may be affected by such designation. Such activities may include: (1) Removing, thinning or destroying riparian vegetation. Activities which remove, thin, or destroy riparian vegetation, by mechanical, chemical (herbicides or burning), or biological (grazing) means reduce constituent elements for southwestern willow flycatcher sheltering, feeding, breeding, and migrating. (2) Surface water diversion or impoundment, groundwater pumping, or any other activity which may alter the quantity or quality of surface or subsurface water flow. Activities which alter the quantity or quality of surface or subsurface water flow may affect riparian vegetation, food availability, or the general suitability of the site for nesting or migrating. (3) Destruction/alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, and stream channelization (i.e., due to roads, construction of bridges, impoundments, discharge pipes, stormwater detention basins, etc.). (4) Overstocking of livestock. Excessive use of riparian areas and uplands for livestock grazing may affect the volume and composition of riparian vegetation, may physically disturb nests, may alter floodplain dynamics such that regeneration of riparian habitat is impaired or precluded, and may facilitate brood parasitism by brown-headed cowbirds. (5) Development of recreational facilities and off-road vehicle operation. Activities which facilitate recreational activities and off- road vehicle use may ~ffect riparian vegetation, result in compaction of soils degrading areas where riparian vegetation is established or would become established, alter floodplain dynamics such that riparian regeneration is impaired or precluded, promote fires in riparian habitats, reduce space for individual and population growth, and inhibit normal behavior. In general, activities that do not remove or degrade constituent elements of habitat for Empidonax traillii extimus are not likely to destroy or adversely modify critical habitat. Each proposed action will be examined pursuant to section 7 of the Act in relation to its site- Tuesday, July 22, 1997 Page 11 of21 2:0S PM