[Federal Register: October 21, 2008 (Volume 73, Number 204)]
[Proposed Rules]
[Page 62450-62459]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc08-14]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2008-0026; 92210-1117-0000-B4]
RIN 1018-AV78
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Contiguous United States Distinct Population Segment of
the Canada Lynx (Lynx canadensis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period and
announcement of public hearings, notice of availability of draft
economic analysis, amended required determinations, and draft
environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period and the scheduling of public
hearings on the proposed revised designation of critical habitat for
the contiguous
[[Page 62451]]
United States distinct population segment of the Canada lynx (Lynx
canadensis) (lynx) under the Endangered Species Act of 1973, as amended
(Act). We also announce the availability for public comment of the
draft economic analysis (DEA), an amended required determinations
section of the proposal, and the draft environmental assessment for the
proposed revised critical habitat designation. We also seek comment on
draft conservation agreements that cover lands in Maine (Unit 1) and in
the northern Rockies (Unit 3) that could result in exclusions from the
final critical habitat designation under section 4(b)(2) of the Act. We
also seek public comment on whether lands entered in to the Healthy
Forest Reserve Program are appropriate for exclusion. In addition, we
propose to refine boundary descriptions for two critical habitat units:
Unit 3 (Northern Rockies) and Unit 5 (Greater Yellowstone Area) based
upon more detailed information we have obtained about lynx habitat in
these areas. If you submitted comments previously, then you do not need
to resubmit them because we have already incorporated them into the
public record and we will fully consider them in preparation of our
final determination.
DATES: Written Comments: We will accept public comments received on or
before November 20, 2008.
Public Hearings: We announce two public hearings, to be held on
November 7, 2008, at Red Lion Hotel, 20 N. Main Street, Kalispell, MT
59901 and on November 13, 2008 at Cody Auditorium, 1240 Beck Avenue,
Cody, WY 82414. Both hearings, open to all who wish to provide formal,
oral comments regarding the proposed revised critical habitat, will be
held from 6 to 8 p.m., mountain time, with an open house from 5 to 6
p.m., mountain time.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R6-ES-2008-0026; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearings: Public hearings will be held (see DATES)
at Red Lion Hotel, 20 N. Main Street, Kalispell, MT 59901, and at Cody
Auditorium, 1240 Beck Avenue, Cody, WY 82414.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, U.S.
Fish and Wildlife Service, Montana Ecological Services Office, 585
Shepard Way, Helena, MT 59601; telephone 406-449-5225. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept comments and information during this reopened
comment period on our proposed revision to critical habitat for the
Canada lynx published in the Federal Register on February 28, 2008 (73
FR 10860), the DEA of the proposed revised designation, the amended
required determinations provided in this document, the draft
environmental assessment, and information related to potential
exclusions. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.),
including whether the benefit of designation would outweigh threats to
the species caused by the designation, such that the designation of
critical habitat is prudent.
(2) Specific information on:
The distribution of the Canada lynx,
The amount and distribution of Canada lynx habitat, and
Which habitat contains the necessary features (primary
constituent elements) essential to the conservation of these species
and why.
(3) Land-use designations and current or planned activities in the
subject areas and their possible impacts on this species or proposed
revised critical habitat.
(4) Whether we could improve or modify our approach to designating
critical habitat to provide for greater public participation and
understanding, or to assist us in accommodating public concerns and
comments.
(5) Any foreseeable environmental impacts directly or indirectly
resulting from the proposed designation of critical habitat.
(6) Any foreseeable economic, national security, or other potential
impacts of designating areas that may be included in the final
designation. We are particularly interested in any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(7) Information on whether the DEA identifies all Federal, State,
and local costs and benefits attributable to the proposed revision of
critical habitat, and information on any costs that have been
inadvertently overlooked.
(8) Information on whether the DEA makes appropriate assumptions
regarding current practices and any regulatory changes that likely may
occur if we designate revised critical habitat.
(9) Information on the accuracy of our methodology in the DEA for
distinguishing baseline and incremental costs, and the assumptions
underlying the methodology.
(10) Information on whether the DEA correctly assesses the effect
on regional costs associated with land use controls that may result
from the revised designation of critical habitat.
(11) Information on whether the critical habitat designation will
result in disproportionate economic impacts to specific areas or small
businesses that should be evaluated under 4(b)(2) for possible
exclusion from the final designation.
(12) Information on whether the DEA identifies all costs that could
result from the critical habitat designation.
(13) Information on whether the benefit of an exclusion of any
particular area outweighs the benefit of inclusion under section
4(b)(2) of the Act, in particular for those draft conservation
agreements covering specified lands in Maine and Montana submitted to
the Service for further evaluation and consideration.
(14) Information on any economic impacts associated with
implementing the draft conservation agreements covering specified lands
in Maine and Montana submitted to the Service for further evaluation
and consideration.
(15) Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed designation and, in particular, any
impacts on mining and oil and gas projects, and the benefits of
including or excluding areas that exhibit these impacts.
(16) Information on the refined mapping techniques we are
considering using to delineate critical habitat units based on public
comments we received.
Regarding the proposed revised critical habitat rule, we
specifically request information on potential critical habitat
exclusions. Under section 4(b)(2) of the Act, we may exclude an area
from critical habitat if we determine that the benefits of such
exclusion outweigh the
[[Page 62452]]
benefits of including that particular area as critical habitat, unless
failure to designate that specific area as critical habitat will result
in the extinction of the species. We may exclude an area from
designated critical habitat based on economic impacts, national
security, or any other relevant impact, including but not limited to
the value and contribution of continued, expanded, or newly forged
conservation partnerships.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; and/or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide. In the case of Canada lynx, the benefits of critical habitat
include public awareness of lynx presence and the importance of habitat
protection, and in cases where a Federal nexus exists, increased
habitat protection for lynx due to the protection from adverse
modification or destruction of critical habitat. In practice, a Federal
nexus exists primarily on Federal lands or for projects undertaken by
Federal agencies. Since lynx were listed in 2000, we have had few
projects on privately owned lands that had a Federal nexus to trigger
consultation under section 7. On Federal lands we have been consulting
with Federal agencies on their effects to lynx since lynx were listed.
These consultations have resulted in a series of comprehensive
conservation plans for Federal lands over much of the range of the DPS.
These plans provide for sufficient lynx habitat protection for recovery
of the DPS.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical and
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After evaluating the benefits of inclusion and the benefits of
exclusion, we carefully weight the two sides to determine whether the
benefits of exclusion outweigh those of inclusion. If we determine that
they do, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will be evaluating
whether certain lands in proposed critical habitat Unit 1 (Maine) and
private lands in unit 3 (Montana and Idaho) are appropriate for
exclusion from the final revised designation. We received a Draft
Conservation Agreement from the Maine Forest Products Council that
proposes a continued lynx conservation partnership between the private
forest products industry and State and Federal wildlife agencies. As
will be described, this draft agreement focuses heavily on the
continuation of land access, research, information sharing, and
education. We also received a single Draft Conservation Agreement from
three private timberlands owners in Montana, including Plum Creek
Timber, F.H. Stoltze Land and Lumber, and Stimson Lumber, who wish to
foster partnerships between industrial forestry landowners and the
Service to promote lynx conservation through cooperative conservation
and education. Additionally, we are evaluating whether lands enrolled
in the Healthy Forest Reserve Program (HFRP) in Maine are appropriate
for exclusion. We will assess the benefits of excluding Maine and
Montana lands included in these agreements and the HFRP and consider
these lands for exclusion from the revised critical habitat final rule
under section 4(b)(2) of the Act. If our analysis results in a
determination that the benefits of excluding lands from the final
designation outweigh the benefits of designating those lands as
critical habitat, then we will exclude the lands from the revised final
designation.
You may obtain a copy of draft conservation agreements for lands in
Maine and Montana or the HFRP documents for lands in Maine by visiting
the Federal eRulemaking Portal at http://www.regulations.gov, or our
Web site http://mountain-prairie.fws.gov/species/mammals/lynx/
criticalhabitat/htm or by requesting copies of these documents by mail
from the Montana Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
If you submitted comments or information on the proposed revised
rule (73 FR 10860) during the initial comment period from February 28,
2008, to April 28, 2008, please do not resubmit them. We will
incorporate them into the public record as part of this comment period,
and we will fully consider them in the preparation of our final
determination. Our final determination concerning revised critical
habitat will take into consideration all written comments and any
additional information we receive during both comment periods. On the
basis of public comments, we may, during the development of our final
determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
You may submit your comments and materials concerning the proposed
revised rule, DEA, or environmental assessment by one of the methods
listed in the ADDRESSES section. We will not consider comments sent by
e-mail or fax or to an address not listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as selected supporting
documentation we used in preparing this revised proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Montana Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT). Maps of the proposed revised critical habitat
also are available on the Internet at http://mountain-prairie.fws.gov/
species/mammals/lynx/.
You may obtain copies of the proposed revision of critical habitat,
the associated DEA, and the environmental assessment on the Internet at
http://www.regulations.gov (see Docket Number FWS-R6-ES-2008-0026), or
by
[[Page 62453]]
mail from the Montana Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
For more information on previous Federal actions concerning the
Canada lynx, refer to the proposed revised designation of critical
habitat published in the Federal Register on February 28, 2008 (73 FR
10860). On January 15, 2008, the U.S. District Court for the District
of Columbia issued an order stating the Service's deadlines for a
proposed rule for revised critical habitat by February 15, 2008, and a
final rule for revised critical habitat by February 15, 2009. On
February 28, 2008, we published a proposed revised rule (73 FR 10860)
designating approximately 42,753 square miles (110,727 square
kilometers) of land in northern Maine, northeastern Minnesota, the
Northern Rocky Mountains (northwestern Montana/northeastern Idaho), the
North Cascades (north-central Washington), and the Greater Yellowstone
Area (southwestern Montana, northwestern Wyoming) as critical habitat.
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting areas designated as critical habitat must consult with us on
the effects of their proposed actions, pursuant to section 7(a)(2) of
the Act.
Under section 4(b)(2) of the Act, we may exclude an area from
critical habitat if we determine that the benefits of such exclusion
outweigh the benefits of including that particular area as critical
habitat, unless failure to designate that specific area as critical
habitat will result in the extinction of the species. We may exclude an
area from designated critical habitat based on economic impacts,
national security, or any other relevant impact.
Section 7 of the Act will prohibit destruction or adverse
modification of any designated critical habitat by any activity funded,
authorized, or carried out by any Federal agency. Federal agencies
proposing actions affecting areas designated as critical habitat must
consult with us on the effects of their proposed actions, under section
7(a)(2) of the Act.
Public Hearings
Section 4(b)(5)(E) of the Act requires a public hearing be held if
any person requests it within 45 days of the publication of a proposed
rule. In response to requests from the public, the Service will conduct
two public hearings for this proposed revision to critical habitat on
the dates and times and at the addresses identified in the DATES and
ADDRESSES sections above.
People wishing to make an oral statement for the record are
encouraged to provide a written copy of their statement and present it
to us at the hearing. In the event there is a large attendance, the
time allotted for oral statements may be limited. Oral and written
statements receive equal consideration. There are no limits on the
length of written comments submitted to us. If you have any questions
concerning the public hearing, please contact the Montana Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
People needing reasonable accommodations in order to attend and
participate in the public hearings should contact Shawn Sartorius,
Montana Ecological Services Office, at (406) 449-5225, extension 208,
as soon as possible. In order to allow sufficient time to process
requests, please call no later than one week before the hearing date.
Information regarding this notice is available in alternative formats
upon request.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We have prepared a DEA of our
February 28, 2008 (73 FR 10860), proposed revised rule to designate
critical habitat for the contiguous United States distinct population
segment of the Canada lynx.
The intent of the DEA is to identify and analyze the potential
economic impacts associated with the proposed revised critical habitat
designation for the Canada lynx. The DEA quantifies the economic
impacts of all potential conservation efforts for the lynx; some of
these costs will likely be incurred regardless of whether we designate
critical habitat. The economic impact of the proposed revised critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (for example,
under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated. The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we may
consider in the final designation of critical habitat. The analysis
looks retrospectively at baseline impacts incurred since the species
was listed, and forecasts both baseline and incremental impacts likely
to occur if we finalize the proposed revised critical habitat.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed revised critical habitat designation
for the lynx over the next 20 years, which was determined to be the
appropriate period for analysis because limited planning information
was available for most activities to forecast activity levels for
projects (e.g., development, mining, recreation projects) beyond a 20-
year timeframe. Where information was available to reliably forecast
activities beyond the 20-year timeframe, we incorporated it into the
analysis. For example, timber harvests are typically on a 40- to 80-
year rotation within the study area allowing us to address forest
management impacts over a longer time period.
The current DEA estimates the foreseeable economic impacts of the
proposed revised critical habitat designation. The economic analysis
identifies potential incremental costs as a result of the proposed
revised critical habitat designation; these are those costs attributed
to critical habitat over and above those baseline costs attributed to
listing. The DEA quantifies economic impacts of lynx conservation
efforts associated with the following activities: (1) Timber
activities, (2) development, (3) recreation, (4) mining and oil and gas
activities, (5) fire management, (6) wind energy developments, (7)
transportation and utilities projects, (8) livestock
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grazing, and (9) species research and active management.
The pre-designation impacts associated with species conservation
activities for the lynx in areas proposed as critical habitat are
approximately $25.7 million applying a 3 percent discount rate and
$30.1 million applying a 7 percent discount rate. The post-designation
impacts associated with species conservation were estimated over the
period 2009 to 2028. The quantified post-designation baseline impacts
(those estimated to occur regardless of the critical habitat
designation) are $9.4 to $10.3 million on an annualized basis applying
a 3 percent discount rate, or $11.6 to $12.8 million on an annualized
basis applying a 7 percent discount rate. Because these costs are
projected to occur whether critical habitat is designated or not, they
are not considered in our determination of whether the benefits of
including an area as critical habitat outweigh the benefits of
excluding the area.
The majority of the post-designation, baseline impacts are
associated with proposed, single, large-scale development project in
Maine (Unit 1), for which the proponent has sought state-approved
rezoning. Subsequent development of the rezoned lands may require the
implementation of avoidance, minimization, or mitigation measures to
conserve lynx. Elsewhere, additional post-designation, baseline impacts
are associated with adherence to existing lynx management plans, which
direct lynx conservation efforts for activities such as timber
management, recreation, and mining.
The only incremental identified and quantified in the analysis are
administrative costs of actions taken under section 7 of the Act
associated with the geographic area proposed as revised critical
habitat for the lynx. The DEA forecasts these incremental impacts
associated with the proposed rulemaking to be $142,000 on an annualized
basis using a 3 percent discount rate, and $141,000 on an annualized
basis using a 7 percent discount rate.
Only the incremental costs that may result from the designation of
critical habitat, over and above the costs associated with species
protection under the Act more generally, may be considered in
designating critical habitat; therefore, the methodology for
distinguishing these two categories of costs is important. In the
absence of critical habitat, Federal agencies must ensure that any
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of any endangered species or threatened
species--costs associated with such actions are considered baseline
costs. Once an area is designated as critical habitat, proposed actions
that have a Federal nexus in this area also will require consultation
and potential modification to ensure that the action does not result in
the destruction or adverse modification of designated critical
habitat--costs associated with these actions are considered incremental
costs. Incremental consultation that takes place as a result of
critical habitat designation may fall into one of three categories: (1)
Additional effort to address adverse modification in a new
consultation; (2) re-initiation of consultation to address effects to
critical habitat; and (3) incremental consultation resulting entirely
from critical habitat designation (i.e., where a proposed action may
affect unoccupied critical habitat). However, because no unoccupied
habitat is being proposed for designation, no consultations in category
3 are projected.
We request comment on the accuracy of our methodology for
distinguishing baseline and incremental costs, and the assumptions
underlying the methodology. The DEA considers the potential economic
effects of actions relating to the conservation of the lynx, including
costs associated with sections 4, 7, and 10 of the Act, as well as
costs attributable to the designation of revised critical habitat.
We are soliciting comments from the public on the DEA, and on the
proposed revised rule and environmental assessment. We may revise the
proposed rule or supporting documents to incorporate or address
information we receive during this comment period. In particular, we
may exclude areas from revised critical habitat if we determine that
the benefits of excluding an area outweigh the benefits of including it
as revised critical habitat, provided the exclusions will not result in
the extinction of the species.
Areas Considered for Exclusion Under Section 4(b)(2) of the Act
Northern Maine Unit 1: Maine Forest Products Council
We have received a draft Conservation Partnership Agreement for the
Benefit of Canada Lynx in Maine from the Maine Forest Products Council
(MFPC) and Maine Department of Inland Fisheries and Wildlife (Maine
DIFW). As drafted, MFPC has identified the Service as a signatory to
the agreement. The MFPC is a trade organization representing the Maine
forest products community, whose members include landowners, loggers,
truckers, paper mills, and lumber processors. Approximately 74 percent
of the lands proposed for lynx critical habitat designation in Maine
are private commercial forest lands owned by members of the MFPC.
The MFPC and its landowner members have been contributing to lynx
conservation since the 1990s by funding lynx and snowshoe hare research
through the University of Maine's Cooperative Forestry Research Unit
(UMaine CFRU). Additionally, MFPC landowners have supported lynx
research and monitoring by allowing researchers from Maine DIFW, the
Service, University of Maine and others access to their private
property to conduct lynx surveys and research and by providing
logistical assistance (lodging, field maps, etc.) to the lynx
researchers.
In summary, the draft conservation agreement proposes a framework
for, among other things, funding of landscape-level habitat mapping
using satellite imagery and state-of-the art lynx and snowshoe hare
habitat models; assistance from MPFC landowners to supplement the
mapping analyses with information and data owned by the companies;
continued funding of lynx research and monitoring and logistical
assistance; professional education, information dissemination, and
training of landowners, forest managers, loggers, and others on lynx
habitat requirements; development of multi-species landscape-scale
planning guidelines to balance the needs of lynx with other species in
the northern forest; lynx workshops to discuss lynx research,
management challenges, opportunities, land management tools, and forest
practices trends; and annual reporting. This agreement does not
prescribe specific land management actions to be taken by landowners.
We are currently reviewing the context of this draft agreement,
including MFPC's explanations of the above proposed commitments and its
treatment of our roles and responsibilities as a signatory.
Northern Maine Unit 1: Lands Subject to the Healthy Forest Restoration
Act
In 2003, Congress passed the Healthy Forest Restoration Act. Title
V of the Act designates an HFRP with objectives to (1) promote the
recovery of threatened and endangered species, (2) improve
biodiversity, and (3) enhance carbon sequestration. In 2006, Congress
provided the first funding for the HFRP, and three States, Maine,
Arkansas, and Mississippi, were chosen as pilots to receive funding
through their respective Natural Resources Conservation Service (NRCS)
State offices. The NRCS and the
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Service determined that the most efficient way to complete
consultations under section 7 of the Act and to deliver the Safe
Harbor-like assurances that the Healthy Forest Restoration Act both
defines and requires was by developing programmatic biological opinions
for each of the participating States. The program underwent formal
consultation under section 7 of the Act. The resulting programmatic
biological opinion provides a framework for determining incidental
take, baseline conditions, and terms and conditions when reviewing
projects selected for future funding. The Service completed the
biological opinion for Maine in 2006; this document is available on
www.regulations.gov with the other documents announced in this
reopening notice.
The NRCS and the Service offered the HFRP to landowners in the
proposed Canada lynx critical habitat unit to promote development of
lynx forest management plans to achieve important objectives for lynx
recovery. Five landowners were enrolled in the HFRP--the Passamaquoddy
Tribe, The Nature Conservancy, the Forest Society of Maine (as a
conservation easement holder for the Merriweather LLC-West Branch
Project), Katahdin Forest Products, and Elliotsville Plantation
Company. Lynx forest management plans will be developed for about
680,000 acres (275,186 hectares) within the 6.8 million-acre (2.75
million-hectare) proposed revised critical habitat. Tiered section 7
consultations will occur under the programmatic opinion for each of the
five projects. The tiered consultations will document the environmental
baseline and incidental take for each project. If additional HFRP
funding is made available to Maine in the future, this programmatic
biological opinion will guide the consultation between NRCS and the
Service. New projects will be tiered under this programmatic opinion.
The programmatic opinion will be revised as new information is obtained
or if new rare, threatened, or endangered species are considered for
Healthy Forest Reserve funding.
Landowner forest management plans will be based on the Service's
Canada Lynx Habitat Management Guidelines for Maine (McCollough 2007).
These guidelines were based on the best available science on lynx
management and have been revised as new research results become
available. The guidelines are:
1. Avoid upgrading or paving dirt or gravel roads traversing lynx
habitat. Avoid construction of new high-speed/high-traffic volume roads
in lynx habitat. Desired outcome: Avoid fragmenting potential lynx
habitat with high-traffic/high-speed roads.
2. Maintain through time at least one lynx habitat unit of 35,000
acres (14,164 hectares) (~1.5 townships) or more for every 200,000
acres (80,937 hectares) (~9 townships) of ownership. At any time, about
20 percent of the area in a lynx habitat unit should be in the optimal
mid-regeneration conditions (see Guideline 3). Desired outcome: Create
a landscape that will maintain a continuous presence of a mosaic of
successional stages, especially mid-regeneration patches that will
support resident lynx.
3. Employ silvicultural methods that will create regenerating
conifer-dominated stands 12-35 feet (3.7-10.7 meters) in height with
high stem density (7,000-15,000 stems/acre) (17,290-37,050 stems/
hectare) and horizontal cover above the average snow depth that will
support (0.44 hares/acre) >1.1 hares/hectare. Desired outcome: Employ
silvicultural techniques that create, maintain, or prolong use of
stands by high populations of snowshoe hares.
4. Maintain land in forest management. Development and associated
activities should be consolidated to minimize direct and indirect
impacts. Avoid development projects that occur across large areas,
increase lynx mortality, fragment habitat, or result in barriers that
affect lynx movements and dispersal. Desired outcome: Maintain the
current amount and distribution of commercial forest land in northern
Maine. Prevent forest fragmentation and barriers to movements. Avoid
development that introduces new sources of lynx mortality.
5. Encourage coarse woody debris for den sites by maintaining
standing dead trees after harvest and leaving patches (at least 0.75
acre (0.30 hectare)) of windthrow or insect damage. Desired outcome:
Retain coarse woody debris for denning sites.
The HFRP forest management plans must provide a net conservation
benefit for lynx, employ the lynx guidelines, identify baseline habitat
conditions and meet NRCS standards for forest plans. Plans must be
developed for an entire forest rotation (70 years) and include a
decade-by-decade assessment of where lynx habitat will be located on
the ownership. Some landowners are developing plans exclusively for
Canada lynx, whereas others are combining lynx management with pine
marten (Martes americana) (an umbrella species for mature forest) or
biodiversity objectives. Most landowners are writing their own plans,
however, The Nature Conservancy contracted with the University of Maine
Department of Wildlife Ecology to develop a lynx-pine marten umbrella
species model that will serve as a model that will be made available to
other northern Maine landowners.
Landowners have two years from enrollment to complete their lynx
forest management plans. Plans must be reviewed and approved by NRCS
with assistance from the Service. The first plans will be completed in
fall, 2009. By year seven, there must be demonstrated harvest schedule
and on-the-ground implementation of the plan. Safe Harbor Agreements or
similar assurances, as defined by the Healthy Forest Restoration Act,
will be made available to landowners enrolled in the program at the
conclusion of the 10-year cost-share agreement.
Northern Rocky Mountains Unit 3: Private Timber Lands
We have also received a draft conservation agreement from three
timber products companies in Montana: Plum Creek Timber, F.H. Stoltze
Land and Lumber, and Stimson Lumber (forest products companies). These
three companies are the largest individual private timberland-owners in
Unit 3 of the proposed critical habitat designation. This agreement
proposes to form a conservation partnership to preserve habitat and
protect the Canada lynx by implementing the following actions:
1. Landowners and forest products companies would distribute lynx
habitat management information developed collaboratively with the USFWS
and supporting agencies and organizations to a variety of forest
landowners and contractors in the geographic area currently contained
in proposed critical habitat not currently engaged with the USFWS or
informed about Canada lynx habitat management measures.
2. The forest products companies would contact forest products
mills within the geographic area currently contained in proposed
critical habitat to enlist their support of the Agreement. Supporting
mills would distribute habitat management and other lynx information to
landowners and log sellers as part of their fiber procurement programs.
This action, combined with the actions of the Agreement signatories,
would inform the vast majority of private landowners in Unit 3 who
undertake forest management activities and sell their products on lynx
habitat management to guide their on-the-ground activities for the
benefit of lynx.
3. The Parties would collaborate to encourage private landowners
and forest
[[Page 62456]]
product companies to pursue funding for conservation efforts, e.g.,
cost-share, incentive programs, or grants for the purpose of Canada
lynx habitat conservation.
4. Landowners and forest product companies would develop new Canada
lynx habitat management training for private field-level forest
managers and contractors.
5. Landowners and forest product companies would host annual
workshops that include the USFWS to discuss recent research outcomes
and management recommendations, identify collaborative adaptive
management opportunities, and/or identify further research
opportunities for lynx conservation.
6. Landowners and forest product companies would develop, in
collaboration with the Service, voluntary landscape-level management
priorities and guidelines for private lands in Montana. These
guidelines will be incorporated into the education and outreach efforts
in 1, 3, and 4 above.
7. Landowners and forest product companies would support Canada
lynx research and monitoring through encouraging participating
landowners and forest product companies to voluntarily provide
reasonable access to their lands to conduct research, logistical and
material support, financial support, and/or dissemination and
implementation of the research results.
The agreement is designed to strengthen partnerships among the
three industrial timberland owners and State and Federal agencies. This
agreement does not prescribe specific land management actions to be
taken by landowners.
Draft Environmental Assessment; National Environmental Policy Act
The draft environmental assessment (EA) presents the purpose of and
need for critical habitat designation, the Proposed Action and
alternatives, and an evaluation of the direct, indirect, and cumulative
effects of the alternatives pursuant to the requirements of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
(NEPA) as implemented by the Council on Environmental Quality
regulations (40 CFR 1500, et seq.) and according to the Department of
the Interior's NEPA procedures.
The EA will be used by the Service to decide whether or not
critical habitat will be designated as proposed, if the Proposed Action
requires refinement or if another alternative is appropriate, or if
further analyses are needed through preparation of an environmental
impact statement (EIS). If the Proposed Action is selected as described
(or is changed minimally) and no further environmental analyses are
needed, then a Finding of No Significant Impact (FONSI) would be the
appropriate conclusion of this process. A FONSI would then be prepared
for the EA.
Proposed Changes to Boundaries of Canada Lynx Revised Critical Habitat
Units 3 and 5
Following publication of our proposed critical habitat rule on
February 28, 2008 (73 FR 10860), we received comments from the U.S.
Forest Service, Montana Department of Natural Resources and
Conservation (Montana DNRC), Plum Creek Timber Company, and others
providing information that large areas of the proposed revised critical
habitat designation did not contain the essential physical and
biological feature described in the rule and should not be included in
the final designation. In response to those comments, we solicited
updated lynx habitat mapping data from the U.S. Forest Service,
National Park Service, Montana DNRC, U.S. Bureau of Land Management,
and Plum Creek Timber Company to confirm the proposed boundaries or
make corrections to those boundaries where they either include
significant areas of non-lynx habitat or leave out significant areas of
lynx habitat that may contribute to lynx conservation. As a result of
this inquiry, we identified several areas on the periphery of Units 3
and 5 that contain features essential to the conservation of lynx and
may warrant inclusion inside the final critical habitat boundary, and
areas that do not contain essential feature and may have been
inappropriately included inside the boundary of the proposed revision.
In general, where mapped lynx habitat corresponds to U.S. Forest
Service lynx analysis units (LAU), we are considering the use of LAU
boundaries to define the final designation. Where LAUs do not include
significant lynx habitat or where they include large areas that are not
mapped lynx habitat, we may use other landscape features such as roads,
watershed boundaries, or contour lines to incorporate mapped lynx
habitat into the final rule. LAUs are areas identified by the U.S.
Forest Service that have significant lynx habitat and are delineated at
the scale of the area required for a female home range. Because LAU
boundaries are based on mapped lynx habitat as well as landscape
features, we believe that the most important lynx habitat is generally
found within LAUs. The following is a summary of specific changes to
the proposal that we are considering that result in significant changes
to the aerial extent of the proposed designation. The numbers reported
below do not sum to the final size of the unit due to small changes to
the boundary when fitting the boundary line to LAU boundaries.
Significant mapped lynx habitat exists on Montana DNRC lands
between subunits 11 and 12. Including these lands in the designation
would link the subunits into one and increase the area of the two
subunits by approximately 60 square miles (155 square kilometers).
Also, outside the eastern boundary of subunit 12 along the North Fork
of the Flathead River, mapped lynx habitat extends east of the line
identified in the February 2008 proposed revision, and we are
considering changing the boundary to correspond to the Forest Service
Lynx Analysis Unit (LAU) boundary there, incorporating an estimated 70
square miles (181 square kilometers) of additional area to subunit 12.
For subunit 16 we are considering, based on the comments received,
to change the subunit's boundaries such that the subunit's eastern
boundary follow the eastern boundary of Glacier National Park south (as
it does in the February 2008 proposed revision) and then follow the
eastern boundaries of U.S. Forest Service LAUs to the south to U.S.
Highway 12. This would result in a reduction of approximately 124
square miles (321 square kilometers). The valley bottom areas of the
southeastern portion of Unit 3 contains very little mapped lynx habitat
and we are considering removing approximately 865 square miles (2,240
square kilometers) from the area north of Highway 12. This area is a
mix of Helena National Forest, BLM, private, and Montana DNRC land.
Based on the new information received, we would leave the mapped lynx
habitat on BLM and private lands in the Garnet Mountain Range as
separate critical habitat subunits.
Also in Unit 3, in the Swan/Clearwater River Valleys along the U.S.
Highway 83 corridor, there is mapped lynx habitat both east and west of
the Highway that occurs outside of the February 28, 2008, proposal. We
are considering extending the boundary of critical habitat on both
sides of the highway to incorporate mapped lynx habitat in this area, a
change that would result in an increase of 104 square miles (269 square
kilometers).
The changes being considered, based on information received, would
result in a net decrease in the size of Unit 3 of approximately 833
square miles (2,157 square kilometers) leaving
[[Page 62457]]
approximately 10,471 square miles (27,120 square kilometers) in Unit 3.
In Unit 5, mapped lynx habitat indicates a lack of lynx habitat on
much of the Custer National Forest that was included in the February
28, 2008, proposal. We are considering amending the northeastern
boundary to more closely reflect the lack of mapped lynx habitat by
using the northeastern LAU boundaries on the Custer National Forest as
the critical habitat boundary there. This change would result in a net
reduction of critical habitat area of approximately 705 square miles
(1,826 square kilometers). In addition, on the east side of Unit 5, we
are considering the use of Forest Service LAU boundaries to define the
critical habitat boundary in this area, however, information submitted
by the Forest Service indicates that much of the mapped lynx habitat in
this area is insufficient to support snowshoe hares in the numbers
required for lynx survival and reproduction. For this reason, we would
not incorporate all mapped lynx habitat in this unit, but instead
include only those LAUs that include the most important lynx habitat
and also recent lynx records. This change would result in a net
decrease in the area of the designation of 130 square miles (337 square
kilometers). We also are considering amending the boundaries of
critical habitat within Yellowstone National Park in the Area of the
Lamar Valley and the Northern Range south of Gardiner to reflect the
lack of mapped lynx habitat in this area. We would potentially use
Yellowstone National Park LAU boundaries to describe the critical
habitat boundary in this area for a net reduction of 546 square miles
(1,414 square kilometers) in the designation. The above changes would
result in a net decrease of 1,867 square miles (4,836 square
kilometers) from Unit 5, leaving 8,723 square miles (22,592 square
kilometers) in Unit 5.
We request comments and additional information on the mapping
techniques that we are considering using to delineate critical habitat
units.
Required Determinations--Amended
In our February 28, 2008, proposed revised rule (73 FR 10860), we
indicated that we would defer our determination of compliance with
several statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this document
we affirm the information in our proposed rule concerning Executive
Orders (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, the
National Environmental Policy Act, and the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951). However, based on the DEA
data, we revise our required determinations concerning E.O. 12866 and
the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply,
Distribution, and Use), the Unfunded Mandates Reform Act, and E.O.
12630 (Takings).
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
proposed rule is significant and has reviewed the proposed revised rule
under Executive Order 12866 (E.O. 12866). OMB bases its determination
upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues. OMB has
determined that this rule is significant because it raises novel legal
or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Based on our DEA of
the proposed designation, we provide our analysis for determining
whether the proposed rule would result in a significant economic impact
on a substantial number of small entities. This determination is
subject to revision based on comments received from the public.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed revised designation of critical
habitat for the Canada lynx would affect a substantial number of small
entities, we considered the number of affected small entities within
particular types of economic activities (e.g., timber harvesting,
livestock grazing, residential and related development, recreation
activities, mining, and transportation). We considered each industry or
category individually. In estimating the numbers of small entities
potentially affected, we also considered whether their activities have
any Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement; designation of
critical habitat affects activities conducted, funded, permitted, or
authorized by Federal agencies.
In our DEA of the proposed revised critical habitat designation, we
evaluated the potential economic effects on small business entities
from conservation actions related to the listing of the Canada lynx and
proposed revised designation of the species' critical habitat. The
activities affected by Canada lynx conservation efforts may include
land development, transportation and utility operations, and
conservation on public and tribal lands. The following is a summary of
the information contained in the draft economic analysis:
[[Page 62458]]
(a) Development
According to the draft economic analysis, Canada lynx development-
related costs account for less than 1 percent of forecast incremental
costs, and is estimated at $8,130 (in 2008 dollars) over 20 years. The
costs consist of administrative costs of conducting consultations under
section 7 of the Act on development projects. As a result of this
information, we have determined that the proposed designation is not
anticipated to have a significant economic impact on a substantial
number of small businesses with respect to development activities.
(b) Forest Management
Potential costs to forest management in habitat proposed for
designation account for another 16 percent of forecast costs.
Undiscounted costs are estimated at $233,000 (in 2008 dollars) over 20
years. The costs consist of administrative costs of conducting
consultations under section 7 of the Act on forest management. These
costs are expected to be borne by Federal and State governments,
private timber landowners, tribal landowners, and other private
landowners across the units of the designation. The administrative
costs would be divided among many entities and projects over a 20-year
period. As a result of this information, we have determined that the
proposed designation is not anticipated to have a significant economic
impact on small forest management businesses.
(c) Recreation
Future costs associated with managing recreation account for an
additional 19 percent of forecast costs. Costs are estimated to be
$285,000 (in 2008 dollars) over 20 years. The costs consist of
administrative costs of conducting consultations under section 7 of the
Act associated with managing recreation (i.e., reductions of snowmobile
opportunities) in Unit 4 (North Cascades). Incremental costs would be
incurred by State and Federal agencies. As a result of this
information, we have determined that the proposed designation is not
anticipated to have a significant economic impact on a substantial
number of small recreation businesses.
(d) Lynx Management Plans
Future costs associated with development of lynx management plans
account for approximately one percent of forecast costs. Costs are
estimated to be $12,300 (in 2008 dollars) over 20 years. The costs
consist of administrative costs of conducting consultations under
section 7 of the Act on lynx management plans by Federal agencies. As a
result of this information, we have determined that the proposed
designation is not anticipated to have a significant economic impact on
a substantial number of small businesses.
(e) Mining/Oil and Gas
Future costs associated with mining and oil and gas exploration and
development activities account for an additional 8 percent of forecast
costs. Costs are estimated at $115,000 (in 2008 dollars) over 20 years.
The costs consist of administrative costs of conducting consultations
under section 7 of the Act on mining and oil and gas projects by
Federal agencies in Units 2, 4, and 5. As a result of this information,
we have determined that the proposed designation is not anticipated to
have a significant economic impact on a substantial number of small
mining or oil and gas businesses.
In summary, we have considered whether the proposed revised rule
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, this proposed
revised rule would not have a significant impact on a substantial
number of small entities. Therefore, an initial regulatory flexibility
analysis is not required.
Executive Order 13211: Energy Supply, Distribution, and Use
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. As described above, this proposed rule is
considered a significant regulatory action under E.O. 12866 due to
potential novel legal and policy issues. OMB's guidance in M-01-27 for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to no
regulatory action. The DEA finds that none of these outcomes will
result from the critical habitat designation for lynx (refer to
Appendix B of the draft economic analysis). Thus, based on the
information in the draft economic analysis, no energy-related
incremental impacts associated with Canada lynx proposed revised
critical habitat are expected other than administrative costs. Costs
are estimated at $115,000 (in 2008 dollars) over 20 years. The costs
consist of administrative costs of conducting consultations under
section 7 of the Act on mining and oil and gas projects by Federal
agencies in Units 2, 4, and 5. As such, the proposed designation of
critical habitat is not expected to significantly affect energy
supplies, distribution, or use and a Statement of Energy Effects is not
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
the following two exceptions: It excludes ``a condition of Federal
assistance.'' It also excludes ``a duty arising from participation in a
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and tribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding'' and the
State, local, or tribal governments ``lack authority'' to adjust
accordingly. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.''
Critical habitat designation does not impose a legally binding duty
on non-Federal Government entities or private parties. Under the Act,
the only regulatory effect is that Federal agencies must ensure that
their actions do not destroy or adversely modify critical habitat under
section 7. Designation of critical habitat may indirectly impact non-
Federal entities that receive Federal funding, assistance, or permits,
or that otherwise require approval or authorization from a Federal
agency for an action. However, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
[[Page 62459]]
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply; nor would critical habitat shift the costs of the large
entitlement programs listed above on to State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments. The draft economic analysis
discusses potential impacts of critical habitat designation for the
Canada lynx on timber management, recreation, land development, mining,
oil and gas development, and the development of management plans. The
analysis estimates costs of the rule to be $2.11 million at present
value over a 20-year period ($142,000 annualized) assuming a 3 percent
discount rate, and $1.49 million ($141,000 annualized) assuming a 7
percent discount rate. Most of the impacts are expected to affect
Federal agencies through administrative costs associated with
consultations under section 7 of the Act. Impacts on small governments
are not anticipated, or they are anticipated to be passed through to
consumers. The SBA does not consider the Federal Government to be a
small governmental jurisdiction or entity. Consequently, we do not
believe that the designation of critical habitat for the Canada lynx
will significantly or uniquely affect small government entities. As
such, a Small Government Agency Plan is not required.
Executive Order 12630: Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing revised critical habitat for the Canada lynx in a takings
implications assessment. The takings implications assessment concludes
that this proposed designation of critical habitat for lynx does not
pose significant takings implications.
Authors
The primary authors of this notice are the staff members of the
Division of Endangered Species, Mountain-Prairie Region, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: October 9, 2008.
Mitchell Butler,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-24827 Filed 10-20-08; 8:45 am]
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