[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Proposed Rules]
[Pages 38246-38262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15414]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES11110900000 212]
RIN 1018-BF01
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Northern Spotted Owl
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise the designated critical habitat for the northern spotted owl
(Strix occidentalis caurina) under the Endangered Species Act of 1973,
as amended (Act). After a review of the best available scientific and
commercial information, we propose to withdraw the January 15, 2021,
final rule that would have excluded approximately 3.4 million acres of
designated critical habitat for the northern spotted owl. Instead, we
propose to revise the species' designated critical habitat by excluding
approximately 204,797 acres (82,879 hectares) in Benton, Clackamas,
Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, Lincoln,
Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, Oregon,
under section 4(b)(2) of the Act as previously proposed. This proposed
revision focuses only on exclusions under section 4(b)(2) of the Act;
we are not proposing any other revisions to the northern spotted owl's
critical habitat designation.
DATES: We will accept comments received or postmarked on or before
September 20, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 3, 2021.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2020-0050,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, check the
[[Page 38247]]
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail: Public Comments Processing,
Attn: FWS-R1-ES-2020-0050, U.S. Fish and Wildlife Service, MS: PRB/3W,
5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat exclusions, maps and the coordinates or plot points or both of
the subject areas are included in the administrative record and are
available at http://www.fws.gov/oregonfwo and at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.
FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor,
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600
SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. Comments previously
submitted in response to our August 11, 2020, proposed revision to
critical habitat for the northern spotted owl (85 FR 48487) do not need
to be resubmitted. We will consider those previously submitted comments
in our final rule. In addition, we considered comments submitted in
response to our March 1, 2021, final rule (86 FR 11892) extending the
effective date of the January 15, 2021, final rule (86 FR 4820;
hereafter referred to as the ``January Exclusions Rule'') in our April
30, 2021, final rule extending the effective date of the January
Exclusions Rule to December 15, 2021 (86 FR 22876). We have also taken
these comments into account in this proposed rule. Parties who would
like to have the comments they submitted in response to our March 1,
2021, rule reconsidered here should resubmit their comments in response
to this proposed rule.
We particularly seek comments concerning:
(1) The reasons why we should or should not withdraw the January
Exclusions Rule, which would exclude approximately 3.4 million acres of
designated critical habitat for the northern spotted owl.
(2) The reasons why we should or should not exclude areas as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information regarding:
(a) The related benefits of including or excluding specific areas;
(b) Whether the benefits of exclusion outweigh those of inclusion;
and
(c) Whether the exclusion will not result in the extinction of the
species.
(3) Any probable economic, national security, or other relevant
impacts of the designation on areas that are being considered for
exclusion.
(4) Any additional areas, including Federal lands, that should be
considered for exclusion under section 4(b)(2) of the Act and any
probable economic, national security, or other relevant impacts of
excluding those areas. If you think we should exclude any additional
areas, please provide credible information regarding the existence of a
meaningful economic or other relevant impact supporting a benefit of
exclusion.
(5) Specifically, any National Forest System lands managed by the
U.S. Department of Agriculture's (USDA's) Forest Service (USFS) that
should be considered for exclusion under section 4(b)(2) of the Act and
any probable economic, national security, or other relevant impacts of
excluding those areas.
(6) Any significant new information or analysis concerning economic
impacts that we should consider in the balancing of the benefits of
inclusion versus the benefits of exclusion in the final determination.
(7) Whether and how ongoing litigation challenging the Bureau of
Land Management's (BLM) management of Oregon and California Railroad
Revested Lands (``O&C lands'') should be addressed in our final rule.
See the BLM Harvest Land Base section below for more information
regarding this litigation.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a final determination, as section 4(b)(2) of the Act directs
that designations or revisions to critical habitat must be made on the
basis of the best scientific data available and after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
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 submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final revision may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final revision may not exclude all areas
proposed, or it may exclude additional areas if we find that the
benefits of exclusion outweigh the benefits of inclusion, or it may
remove areas if we find that the area does not meet the definition of
``critical habitat.'' Any changes made in the final rule should be of a
type that could have been reasonably anticipated by the public. Changes
in a final revision would be reasonably anticipated if: (1) We base
them on the best scientific and commercial data available and take into
consideration the relevant impacts; (2) we articulate a rational
connection between the facts found and the conclusions made, including
why we changed our conclusion; and (3) we base removal of designation
of any areas on a determination either that the area does not meet the
definition of ``critical habitat'' or that the benefits of excluding
[[Page 38248]]
the area will outweigh the benefits of including it in the designation.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
On December 4, 2012, we published in the Federal Register (77 FR
71876) a final rule designating revised critical habitat for the
northern spotted owl and announcing the availability of the associated
economic analysis and environmental assessment. For additional
information on previous Federal actions concerning the northern spotted
owl, refer to that December 4, 2012, final rule.
In 2013, the December 4, 2012, revised critical habitat designation
was challenged in court in Carpenters Industrial Council et al. v.
Bernhardt et al., No. 13-361-RJL (D.D.C.) (now retitled Pacific
Northwest Regional Council of Carpenters et al. v. Bernhardt et al.
with the substitution of named parties). In 2015, the district court
ruled that the plaintiffs lacked standing. The D.C. Circuit reversed
and remanded, and the case remained pending before the district court.
On April 13, 2020, we entered into a stipulated settlement
agreement resolving the litigation. The settlement agreement was
approved and ordered by the court on April 26, 2020. Under the terms of
the settlement agreement, the Service agreed to submit to the Federal
Register: By July 15, 2020, a proposed revised critical habitat rule
that identifies proposed exclusions under section 4(b)(2) of the Act,
and on or before December 23, 2020, a final revised critical habitat
rule, or withdrawal of the proposed rule if the Service determines not
to exclude any areas from the designation under section 4(b)(2) of the
Act.
On August 11, 2020 (85 FR 48487), we published in the Federal
Register a proposed revised critical habitat rule to exclude 204,653
acres (82,820 hectares) within 15 counties in Oregon under section
4(b)(2) of the Act. (In this proposed rule, we propose to exclude
204,797 acres (82,879 hectares) within the same 15 counties in Oregon.
The difference in the proposed exclusions from 204,653 acres to 204,797
acres is the result of a discrepancy that we later identified in our
acreage calculations.) We opened a 60-day comment period on the August
11, 2020, proposed rule, which closed on October 13, 2020. On January
15, 2021, we published in the Federal Register the January Exclusions
Rule (86 FR 4820), excluding approximately 3,472,064 acres (1,405,094
hectares) within 45 counties in Washington, Oregon, and California
under section 4(b)(2) of the Act. Our August 11, 2020, proposed rule
(85 FR 48487) and our January Exclusions Rule met the stipulations of
the settlement agreement.
The initial effective date of the January Exclusions Rule was March
16, 2021. On March 1, 2021, we extended the effective date of the
January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time,
we also opened a 30-day comment period, inviting comments on the impact
of the delay of the effective date of the January Exclusions Rule, as
well as comments on issues of fact, law, and policy raised by that
final rule. After considering comments received in response to our
March 1, 2021, final rule delaying the effective date, on April 30,
2021, we again extended the effective date of the January Exclusions
Rule to December 15, 2021 (86 FR 22876).
Review and Reconsideration of the January 15, 2021, Final Rule
In our March 1, 2021, final rule (86 FR 11892) extending the
effective date of the January Exclusions Rule, we acknowledged that the
additional areas excluded in that final rule (more than 3.2 million
acres) and the rationale for the additional exclusions were not
presented to the public for notice and comment. We noted that several
members of Congress expressed concerns regarding the additional
exclusions, among other concerns, which they identified in a February
2, 2021, letter to the Inspector General of the Department of the
Interior seeking review of the January 15, 2021, final rule. We also
noted we received at least two notices of intent to sue from interested
parties regarding allegations of procedural defects, among other
potential defects, with respect to our rulemaking for the final
critical habitat exclusions.
We received a number of comments in response to our March 1, 2021,
final rule wherein we invited public comment on (1) any issues or
concerns about whether the rulemaking process was procedurally
adequate; (2) on whether the Secretary's conclusions and analyses in
the January Exclusions Rule were consistent with the law, and whether
the Secretary properly exercised his discretion under section 4(b)(2)
of the Act in excluding the areas at issue from critical habitat; and
(3) whether, and with what supporting rationales, the Service should
reconsider, amend, rescind, or allow to go into effect the January
Exclusions Rule. Commenters identified potential defects in the January
Exclusions Rule--both procedural and substantive. We summarized these
comments in our April 30, 2021, final rule delaying the effective date
of the January Exclusions Rule until December 15, 2021 (86 FR 22876).
Based on these comments and concerns, we reconsidered the rationale
and justification for the large exclusion of critical habitat
identified in the January Exclusions Rule. As a result, the Service now
concludes that there was insufficient rationale and justification to
support the exclusion of approximately 3,472,064 acres (1,405,094
hectares) from critical habitat for the northern spotted owl, an
exclusion that removed an additional approximately 3.2 million acres
from designation as compared with the August 2020 proposed rule. Our
reexamination of the January Exclusions Rule identified defects and
shortcomings, which we summarize in the following paragraphs.
As a procedural matter, we find it would be necessary and
appropriate to solicit and consider additional notice and an
opportunity to comment on the exclusions made final in the January
Exclusions Rule before those exclusions could go into effect. The
January Exclusions Rule excluded substantially more acres (36 percent
of designated critical habitat versus the 2 percent proposed in the
August 2020 proposed revised rule). The January Exclusions Rule also
excluded critical habitat in a much broader geographic area than
proposed, including adding exclusions in Washington and California when
only exclusions in Oregon had been included in the proposed rule. The
January Exclusions Rule also included new rationales for the exclusions
that were not identified in the August 11, 2020, proposed revised
critical habitat rule (85 FR 48487). These included generalized
assumptions about the economic impact of both the listing of the
northern spotted owl and the
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subsequent designation of areas as critical habitat; the stability of
local economies and protection of the local custom and culture of
counties; the presumption that exclusions would increase timber harvest
and result in longer cycles between harvest, that timber harvest
designs would benefit the northern spotted owl, and that the increased
harvest would reduce the risk of wildfire; and that northern spotted
owls may use areas that have been harvested if some forest structure
was retained. The public did not have an opportunity to review or
comment on these new rationales.
Additionally, the January Exclusions Rule excluded all of the
Oregon and California Railroad Revested Lands (O&C lands) managed by
BLM and USFS. The O&C lands were revested to the Federal Government
under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and
California Revested Lands Sustained Yield Management Act of 1937 (Pub.
L. 75-405) (O&C Act) addresses the management of O&C lands. The January
Exclusions Rule failed to reconcile a change in our prior findings that
areas designated on lands managed under the O&C Act were essential to
the conservation of the species. The Service previously concluded in
our 2012 critical habitat rule (77 FR 71876) that the O&C lands and
other lands managed as ``matrix'' lands for timber production
significantly contribute to the conservation of the northern spotted
owl, that recovery of the owl cannot be attained without the O&C lands,
and that our modeling showed that not including some of these O&C lands
in the critical habitat network resulted in a significant increase in
the risk of extinction.
In response to our March 1, 2021, rule (86 FR 11892) extending the
effective date of the January Exclusions Rule, some commenters stated
that we provided sufficient notice and an opportunity for the public to
be aware of the potential for the expansion of the exclusions from the
proposed to final rules. Industry groups asserted that the August 11,
2020, proposed revised critical habitat rule (85 FR 48487) made clear
that additional exclusions were being considered, in part, based on our
request for information on additional exclusions we should consider
(AFRC 2021, pp. 5-6). In contrast, many other commenters objected to a
lack of notice and opportunity to comment on the significant changes.
These included comments from the newly impacted State fish and wildlife
agencies (Washington Department of Fish and Wildlife 2021, California
Department of Fish and Wildlife 2021). In order to ensure a robust
opportunity for public input on the changes, we are erring on the side
of transparency. If we were proposing to implement the January
Exclusions Rule, we would open a public comment period on that rule and
consider that feedback before deciding to implement the rule. Based on
our review, however, we are now proposing to withdraw the January
Exclusions Rule, prior to its implementation, due to a number of
concerns that the exclusions would be inconsistent with the
conservation purposes of the Act as we summarize below.
First, the large additional exclusions made in the January
Exclusions Rule were premised on inaccurate assumptions about the
status of the owl and its habitat needs particularly in relation to
barred owls. The large additional exclusions were based in part on an
assumption that barred owl control is the fundamental driver of
northern spotted owl recovery, when in fact the best scientific data
indicate that protecting late-successional habitat also remains
critical for the conservation of the spotted owl as well (FWS 2020, p.
83).
In addition, in concluding that the exclusions of the January
Exclusions Rule will not result in the extinction of the northern
spotted owl (a finding necessary for any section 4(b)(2) exclusions)
the January Exclusions Rule relied, in part, upon a large-scale barred
owl removal program that is not yet in place. The Service is in the
process of developing a barred owl management strategy, but it is
premature to conclude that a barred owl management plan will be
implemented. Considerable economic, logistical, social, and legal
issues must be addressed prior to implementation of such a strategy.
Since completion of the recovery plan for the northern spotted owl
(FWS 2011), the Service has worked closely with Federal and State land
managers to minimize or avoid impacts to extant spotted owls due to
timber harvest, while at the same time carrying out the barred owl
removal experiment (Wiens et al. 2021) and initiating development of a
barred owl management program. This approach has allowed for some
timber harvest to proceed under State and Federal land management plans
(e.g., BLM's 2016 Resource Management Plans in western Oregon (BLM
RMPs)) while minimizing impacts to long-term spotted owl recovery
prospects. Potential timber harvest on the critical habitat that would
be excluded in the January Exclusions Rule would far exceed the level
of impact to spotted owls that the Service anticipated in those land
management plans. Thus, it is premature to rely solely on an
anticipated barred owl management program to offset the potential loss
of millions of acres of spotted owl critical habitat over time or to
conclude it would not result in the extinction of the subspecies.
Second, the January Exclusions Rule undermined the biological
redundancy of the critical habitat network by excluding large areas of
critical habitat across the designation and did not address the ability
of the remaining units and subunits to function in that network. The
2012 critical habitat designation (77 FR 71876) provided for biological
redundancy in northern spotted owl populations and habitat by
maintaining sufficient habitat on a landscape level in areas prone to
frequent natural disturbances, such as the drier, fire-prone regions of
its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285;
Kennedy and Wimberly 2009, p. 565).
In the development of habitat conservation networks generally, the
intent of spatial redundancy is to increase the likelihood that the
network and populations can sustain habitat losses by inclusion of
multiple populations unlikely to be affected by a single disturbance
event. This redundancy is essential to the conservation of the northern
spotted owl because disturbance events such as fire can potentially
remove large areas of habitat with negative consequences for northern
spotted owls. This redundancy can also allow for a relatively small
amount of human-caused disturbance such as timber harvest without
jeopardizing the species or adversely modifying its critical habitat,
provided that disturbance is carefully planned and evaluated within the
appropriate temporal and spatial context such as projects consistent
with BLM's 2016 RMPs. The modeling and evaluation process used by the
Service in our 2012 final critical habitat rule (77 FR 71876) addresses
spatial redundancy at two scales: By (1) making critical habitat
subunits large enough to support multiple groups of owl sites; and (2)
distributing multiple critical habitat subunits within a single
geographic region. This approach was particularly the case in the fire-
prone Klamath and Eastern Cascades portions of the range. This
increased habitat redundancy also provides for the conservation of
northern spotted owls as they face growing competition from barred
owls.
The exclusions in the January Exclusions Rule also failed to
consider the needs for connectivity between critical habitat units,
particularly in
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southern Oregon where the bulk of the additional areas were excluded in
the January Exclusions Rule. Successful dispersal of northern spotted
owls is essential to maintaining genetic and demographic connections
among populations across the range of the species (FWS 2020, p. 24).
Some subunits that were designated to provide this support were reduced
in the January Exclusions Rule by over 50 to 90 percent. If these
exclusions were implemented, these subunits would no longer provide the
demographic support for which they were designated. Again, as described
above, the Service anticipates and plans for a relatively small amount
of human-caused and natural disturbance in these units, meted out over
space and time in a manner that supports recovery over the long term.
The January Exclusions Rule could lead to timber harvest that would
greatly accelerate those impacts well beyond what was anticipated in
the recovery plan for the northern spotted owl (FWS 2011) and various
land management plans.
The January Exclusions Rule also overstates the conservation value
of non-designated habitat for the owl on protected Federal lands such
as national parks and designated wilderness areas. These Federal lands
are generally protected from proposed Federal activities that would
result in significant removal of suitable owl habitat, and so they may
provide areas that can serve as refugia for northern spotted owls.
These protected areas, however, are relatively small and widely
dispersed across the range of the owl. They are disjunct from one
another and cannot be relied on to sustain the species unless they are
part of and connected to a wider reserve network as provided by the
2012 critical habitat designation (77 FR 71876). As discussed above,
that network would be greatly diminished and fragmented by the January
Exclusions Rule if implemented.
Third, under section 4(b)(2) of the Act, the Secretary cannot
exclude areas from critical habitat if he or she finds, ``based on the
best scientific and commercial data available, that the failure to
designate such area as critical habitat will result in the extinction
of the species concerned.'' The January Exclusions Rule relied upon a
determination by the Secretary that the exclusions will not result in
the extinction of the northern spotted owl based in part on a narrow
interpretation of this requirement. In a memorandum to the Secretary
(FWS 2021a), the Director suggested that the phrase in the Act ``will
result in extinction'' requires the extinction outcome to be
immediately determinative and proximal. However, critical habitat
designations serve to identify those specific areas that are essential
to the conservation of a species; ``conservation'' under the Act means
improving the status of the listed species to the point at which the
protections of the Act are no longer necessary, i.e., the species is
recovered. Species listed as threatened or endangered species are by
definition likely to be in danger of extinction or already in danger of
extinction, and our listing action affirms that they are likely to
become extinct unless affirmatively conserved. While the language of
section 4(b)(2) uses the phrase ``will result in extinction,'' we
interpret that language within the context of the purpose of critical
habitat designations and the purpose of the Act--such that exclusions
under section 4(b)(2) that are reasonably certain to lead to the
eventual extinction of the species are prohibited, not just exclusions
that are immediate and directly caused by the exclusion.
A determination of immediate proximal extinction as a result of a
critical habitat exclusion under section 4(b)(2) may be possible for
the rarest and most imperiled of species, but it is less likely to be
determined for many listed species, especially those that are long-
lived or thinly dispersed over large geographic ranges. The northern
spotted owl is both: Individual northern spotted owls can live up to 20
years, and they are widely distributed at low densities across three
States. For example, if the bulk of the northern spotted owl's habitat
were to be removed except for the portion that exists in national
parks, one could reasonably conclude the subspecies would not go
extinct immediately, say within 1 to 5 years. Individual northern
spotted owls remaining in those parks scattered across the range might
persist for one or a few generations (that is, greater than 20 years).
However, the subspecies is still likely to go extinct in this scenario.
Basic conservation biology principles and metapopulation dynamics
predict that those remnant and now isolated northern spotted owl
subpopulations would likely die off without regular genetic and
demographic interaction with northern spotted owls from neighboring
subpopulations.
Forces working against the persistence of these isolated
subpopulations include genetic inbreeding and catastrophic stochastic
events such as wildfire. Therefore, it is a reasonable scientific
conclusion that the subspecies would go extinct under such conditions,
but this extinction process will occur over decades as these forces
manifest themselves and as long-lived individuals die off. The
extinction would not occur immediately, as it might with rarer and more
short-lived species, but eventual extinction is still a scientifically
predictable outcome with a high likelihood of certainty. The Act
requires us to use the best available science when applying the
discretion afforded in section 4(b)(2), and this includes making a
reasonable and defensible scientific interpretation of extinction risk
that is relevant to the species under consideration. In this current
proposal, we correct the previous misapplication of section 4(b)(2)
extinction risk, which could not meet the Act's purpose of conserving
listed species and the ecosystems on which they depend.
Further, the January Exclusions Rule did not consider that a
reduction in habitat conservation, in concert with the impacts from the
barred owl, will exacerbate and accelerate the risk of extinction as
discussed in our recent 12-month finding and supporting documentation
that the species is in decline and warrants reclassification as
endangered (85 FR 81144)--that is, that the species is in danger of
extinction throughout all or a significant portion of its range. The
species has experienced rapid population declines and potential
extirpation in Washington and parts of Oregon, is functionally extinct
in British Columbia, and continues to exhibit similar declines in other
parts of the range. Northern spotted owls are declining at a rate of
5.3 percent across their range and populations in Oregon and Washington
have declined by over 50 percent, with some declining by more than 75
percent, since 1995 (Franklin et al. 2021). Franklin et al. (2021, p.
18) emphasizes the importance of maintaining northern spotted owl
habitat, regardless of occupancy, in light of competition from barred
owls to provide areas for recolonization and connectivity for
dispersing northern spotted owls. The January Exclusions Rule, if
implemented, would work at cross purposes with this recommendation.
Specifically, much of the areas excluded by the January Exclusions
Rule are allocated by USFS and BLM as Late-Successional Reserves and
managed for late-successional forest-dependent species, such as the
northern spotted owl, in accordance with the Northwest Forest Plan
(NWFP) (USFS and BLM 1994a, USFS and BLM 1994b) and the BLM RMPs (BLM
2016a, BLM 2016b). The NWFP and the BLM RMPs provide adequate
landscape-scale conservation for the northern spotted
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owl while allowing for relatively small areas of critical habitat to be
harvested over time. If the January Exclusions Rule enabled subsequent
habitat removal on these lands that is inconsistent with the current
NWFP and BLM RMPs, as suggested in the January Exclusions Rule's
identification of increased timber harvest as a benefit of exclusion,
it would preclude the recovery of the northern spotted owl and result
in the species' eventual extinction.
In sum, substantial issues have been raised that our January
Exclusions Rule would preclude the conservation of the northern spotted
owl, a species we recently found warrants reclassifying as an
endangered species in danger of extinction throughout its range (85 FR
81144, December 15, 2020). Upon review and reconsideration as described
above, the Service now proposes to withdraw the January Exclusions Rule
and return to the original August 11, 2020, proposed exclusion of
204,797 acres (82,879 hectares) within 15 counties in Oregon (as
adjusted from 204,653 acres (82,820 hectares) to correct a discrepancy
in acreage calculations, as explained above under Previous Federal
Actions). The proposed exclusion of these 204,797 acres is a
scientifically sound application of the Service's discretionary
authority under section 4(b)(2) of the Act. This exclusion, which is
consistent with existing Federal land management plans and the recovery
plan for the northern spotted owl (FWS 2011), provides sufficient
habitat conservation for long-term northern spotted owl recovery while
also allowing carefully considered timber harvest and other activities
to proceed on portions of these Federal lands.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals). Our regulation at 50 CFR 424.02
also now defines the term ``habitat'' for the purposes of designating
critical habitat only, as the abiotic and biotic setting that currently
or periodically contains the resources and conditions necessary to
support one or more life processes of a species. This new regulatory
definition has a narrow scope and would only be relevant if we were
considering designating areas that are outside of the geographical area
occupied at the time of listing. We did not consider including areas
outside the geographical area occupied at the time of listing in this
proposed revised rule; rather, we are proposing to exclude areas from
it. Nonetheless, we have taken the opportunity provided by this
proposed revision to review the existing designation for conformance
with the new regulatory definition. All the areas within the
designation of critical habitat are within the geographical area
occupied at the time of listing and encompass forested areas with
specific characteristics, described further below, which are the
abiotic and biotic setting that currently or periodically contains the
resources and conditions necessary to support one or more life
processes of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not change
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, nor does designation require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. When a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, the Service
identifies to the extent known, using the best scientific and
commercial data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat). In identifying those physical or
biological features that occur in occupied areas, we focus on the
specific features that are essential to support the life-history needs
of the species, including, but not limited to, water characteristics,
soil type, geological features, prey, vegetation, symbiotic species, or
other features. A feature may be a single habitat characteristic or a
more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed,
[[Page 38252]]
upon a determination that such areas are essential for the conservation
of the species. When designating critical habitat, the Secretary will
first evaluate areas occupied by the species. The Secretary will
consider unoccupied areas to be essential only when a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
In our December 4, 2012, final rule (77 FR 71876) designating
critical habitat, we determined that all units and subunits met the
first prong of Act's definition of critical habitat of being within the
geographical area occupied by the species at the time of listing. Our
determination was based on the northern spotted owl's wide-ranging use
of the landscape, and the distribution of known owl sites at the time
of listing across the units and subunits designated as critical
habitat. We recognize that, subsequent to listing, some areas within
these units and subunits have at times not been used by individual
northern spotted owls due to displacement by competition with the
nonnative barred owl. However, we anticipate many of these areas will
be used by individual northern spotted owls in the future if barred owl
management is implemented and effective, as these areas currently or
periodically contain the resources and conditions necessary to support
one or more life processes of the owl.
At a finer scale within the occupied geographic area within some of
these units and subunits, the forest mosaic contains some areas of
younger forest that may not have been occupied at the time of listing.
These areas were included in the designation to provide connectivity
(physical and biological feature (PBF) 4--dispersal habitat) between
occupied areas, room for population growth, and the ability to provide
sufficient suitable habitat on the landscape for the owl in the face of
natural disturbance regimes (e.g., fire). These areas are essential for
the conservation of the species; therefore, they meet the second prong
in the Act's definition of critical habitat.
Our December 4, 2012, final rule (77 FR 71876) includes four PBFs
(formerly referred to as primary constituent elements, or PCEs)
specific to the northern spotted owl. In summary, PBF 1 is forest types
that may be in early-, mid-, or late-seral stages and that support the
northern spotted owl across its geographical range; PBF 2 is nesting
and roosting habitat; PBF 3 is foraging habitat; and PBF 4 is dispersal
habitat (see 77 FR 71876, December 4, 2012; pp. 72051-72052, for a full
description of the PBFs). In areas occupied at the time of listing, not
all of the designated critical habitat contains all of the PBFs,
because not all life-history functions require all of the PBFs. Some
subunits contain all PBFs and support multiple life processes, while
some subunits may contain only PBFs necessary to support the species'
particular use of those subunits as habitat. However, all of the areas
occupied at the time of listing and designated as critical habitat
support at least PBF 1, in conjunction with at least one other PBF.
Thus, PBF 1 must always occur in concert with at least one additional
PBF (i.e., PBFs 2, 3, or 4) (77 FR 71876, December 4, 2012; p. 71908).
When determining critical habitat boundaries for the December 4,
2012, final rule, we made every effort to avoid including areas that
lack physical or biological features for the northern spotted owl. Due
to the limitations of mapping at fine scales, we were often not able to
segregate these areas from areas shown as critical habitat on maps
suitable in scale for publication within the Code of Federal
Regulations (CFR). The following types of areas are not critical
habitat because they cannot support northern spotted owl habitat and
are not included in the 2012 designation: Meadows and grasslands, oak
and aspen (Populus spp.) woodlands, and manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas), and the
land on which they are located. Thus, we included regulatory text in
the December 4, 2012, final rule clarifying that these areas were not
included in the designation even if they occur within the mapped
boundaries of critical habitat (77 FR 71876, December 4, 2012; p.
72052).
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When determining which areas should be designated as critical
habitat, our primary source of information is the status analysis in
the listing rule and other information developed during the listing
process for the species. Additional information sources may include any
generalized conservation strategy, criteria, or outline that may have
been developed for the species; the recovery plan for the species;
articles in peer-reviewed journals; conservation plans developed by
States and counties; scientific status surveys and studies; biological
assessments; other unpublished materials; or experts' opinions or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. Critical habitat designated at a particular point in time
may not include all of the areas that we may later determine are
necessary for the recovery of the species. For these reasons, a
critical habitat designation does not signal that habitat outside the
designated area is unimportant or may not be needed for recovery of the
species. Areas that are important to the conservation of the species,
both inside and outside the critical habitat designation, will continue
to be subject to: (1) Conservation actions implemented under section
7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
The proposed exclusion of 204,797 acres (82,879 hectares) within 15
counties in Oregon as described in this
[[Page 38253]]
document does not change the majority of the December 4, 2012, final
rule currently in effect. The only sections of the rule that published
at 77 FR 71876 (December 4, 2012) that would change with this proposed
revision are table 8 in the Exclusions discussion (pp. 71948-71949),
the subunit maps related to the proposed exclusions (pp. 72057
2012;72058, 72062, 72065 2012;72067), and the index map of Oregon (p.
72054). The regulations concerning critical habitat have been revised
and updated since 2012 (81 FR 7414, February 11, 2016; 84 FR 45020,
August 27, 2019; 85 FR 81411, December 16, 2020; 85 FR 82376, December
18, 2020). Our December 4, 2012, designation of critical habitat for
the northern spotted owl and the revisions proposed in this rule are in
accordance with the requirements of the revised critical habitat
regulations, with the exception of the use of the term ``primary
constituent element'' (PCE) in the December 4, 2012, final rule; here,
we use the term ``physical or biological feature'' (PBF), as noted
above, in accordance with the updated critical habitat regulations. The
primary constituent elements (PCEs) are, however, the physical and
biological features (PBFs) as described in the revised regulations:
They are essential to the conservation of the species, and they may
require special management considerations or protection.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he or she
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless the
Secretary determines, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species. In making the determination to exclude a
particular area, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give to any factor.
In accordance with our recently finalized regulation at 50 CFR
17.90(a) regarding the application of section 4(b)(2) of the Act (85 FR
82376, December 18, 2020), based on the best information available
regarding economic, national security, and other relevant impacts, in
this proposed rule we identify the areas that the Service has reason to
consider for exclusion and explain why they are proposed for exclusion.
``Economic impacts'' may include, but are not limited to, the economy
of a particular area, productivity, jobs, and any opportunity costs
arising from the critical habitat designation (such as those
anticipated from reasonable and prudent alternatives that may be
identified through a section 7 consultation) as well as possible
benefits and transfers (such as outdoor recreation and ecosystem
services). ``Other relevant impacts'' may include, but are not limited
to, impacts to Tribes, States, local governments, public health and
safety, community interests, the environment (such as increased risk of
wildfire or pest and invasive species management), Federal lands, and
conservation plans, agreements, or partnerships. We describe below the
process that we undertook for taking into consideration each category
of impacts and our analyses of the relevant impacts.
Consideration of Economic Impacts
We did not exclude areas from our December 4, 2012, final critical
habitat designation (77 FR 71876) based on economic impacts, and we are
not now proposing to exclude any areas solely on the basis of economic
impacts. Refer to the December 4, 2012, rule (77 FR 71876) for a
description of the purpose and process of evaluating the economic
impacts that may result from a designation of critical habitat. The
final economic analysis of the 2012 critical habitat designation for
the northern spotted owl found the incremental effects of the
designation to be relatively small due to the extensive conservation
measures already in place for the species because of its listed status
under the Act and because of the measures provided under the NWFP (USFS
and BLM 1994) and other conservation programs (IEc 2012, pp. 4-32, 4-
37). Thus, we concluded that the future probable incremental economic
impacts were not likely to exceed $100 million in any single year, and
impacts that are concentrated in any geographic area or sector were not
likely as a result of designating critical habitat for the northern
spotted owl. The incremental effects included: (1) An increased
workload for action agencies and the Service to conduct reinitiated
section 7 consultations for ongoing actions in newly designated
critical habitat (areas proposed for designation that were not already
included within the extant designation); (2) the cost to action
agencies of including an analysis of the effects to critical habitat
for new projects occurring in occupied areas of designated critical
habitat; and (3) potential project alterations in areas where owls are
not currently present within designated critical habitat.
Although we considered the incremental impact of administrative
costs to Federal agencies associated with consulting on critical
habitat under section 7 of the Act, economic impacts are not the
primary reason for the exclusions we are proposing in this document.
See the December 4, 2012, final rule for a summary of the final
economic analysis and our consideration of economic impacts (77 FR
71876; pp. 71878, 71945-71947, 72046-72048). Our critical habitat
regulations require that at the time of publication of a proposed rule
to designate critical habitat, the Secretary make available for public
comment a draft economic analysis of the designation (85 FR 82376,
December 18, 2020). However, we have reviewed the 2012 final economic
analysis (IEc 2012) and determined that because the January Exclusions
Rule has not gone into effect and we are not designating additional
critical habitat in this rule (we are only proposing to exclude (i.e.,
remove) additional areas from critical habitat), the economic impact
will simply be reduced and a new economic analysis is thus unnecessary.
Further, we have determined that the exclusion of the Harvest Land
Base lands from critical habitat for the northern spotted owl would not
result in changes in management or conservation outcomes under section
7 consultation for those lands. The BLM considered the critical habitat
designation in revising their RMPs in 2016, and the design and
implementation of future projects will follow their management
direction for each land use allocation as required by the RMPs. We
analyzed the RMPs and concluded that the land use allocations and the
management direction--including carefully designed timber harvest
within the Harvest Land Base--would not jeopardize the owl's continued
existence, nor destroy or adversely modify its designated critical
habitat. With the exclusions of the Harvest Land Base areas from
critical habitat proposed here, the RMP land use allocations and
management directions will continue to apply. The only change in
section 7 outcomes as a result of these exclusions would be that BLM
would no longer have to consult on areas where critical habitat is
excluded
[[Page 38254]]
if there are no effects anticipated to the species.
We note that during the public comment period on our prior proposed
revised critical habitat rule (85 FR 48487, August 11, 2020), the
American Forest Resource Council (AFRC 2020) and other commenters
provided a new report prepared by The Brattle Group (2020) (Brattle
report) critiquing the 2012 critical habitat economic analysis (IEc
2012). The Brattle report included updated estimates of the economic
impacts of the 2012 rule using more recent data and/or different
assumptions. We contracted with IEc to review the Brattle report and
provided a response to the report in the January 15, 2021, final rule
(86 FR 4820, pp. 4825-4827). The Brattle report does not alter our
assessment that because we are removing areas from designation (rather
than adding them), no new economic analysis is needed. Because the
entire 2012 designation did not reach the threshold for economic
significance under Executive Order 12866, these exclusions, which
represent a reduction in the overall cost, also do not meet this
threshold.
During the development of a final revised designation, we will
consider any additional economic impact information we receive during
the public comment period (see DATES), and, therefore, additional areas
not considered in this proposed rule may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations.
Consideration of Impacts on National Security
We did not exclude areas from our December 4, 2012, revised
critical habitat designation based on impacts on national security, but
we did exempt Joint Base Lewis-McChord lands based on the integrated
natural resources management plan under section 4(a)(3) of the Act (77
FR 71876, pp. 71944-71945). In this document, we are not proposing to
exclude any areas from the critical habitat designation on the basis of
impacts on national security. However, during the development of a
final rule we will consider any additional information received through
the public comment period on the impacts of the proposed designation on
national security or homeland security to determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(a)(3) and our implementing
regulations.
Consideration of Other Relevant Impacts
When identifying the benefits of inclusion of an area as designated
critical habitat, we primarily consider the additional regulatory
benefits that that area would receive due to the protection from
destruction or adverse modification as a result of actions with a
Federal nexus (that is, an activity or program authorized, funded, or
carried out in whole or in part by a Federal agency), 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, or in the continuation, strengthening, or encouragement
of partnerships.
In the case of the northern spotted owl, the benefits of including
an area as designated critical habitat include public awareness of the
presence of northern spotted owls and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for northern spotted owls through the Act's section 7(a)(2)
mandate that Federal agencies insure that any action they authorize,
fund, or carry out is not likely to result in the destruction or
adverse modification of critical habitat. Additionally, continued
implementation of an ongoing management plan for the area that provides
conservation equal to or greater than a critical habitat designation
would reduce the benefits of including that specific area in the
critical habitat designation.
We evaluate existing conservation plans when considering the
benefits of inclusion. 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 or biological features; whether
there is a reasonable expectation that the conservation management
strategies, and actions contained in a management plan, will be
implemented into the future; whether the conservation strategies in the
plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation under section 4(b)(2) of the Act.
The final decision on whether to exclude any areas under section
4(b)(2) will be based on the best scientific data available at the time
of the final designation, including information that we obtain during
the comment period. If we receive credible information regarding the
existence of a meaningful economic or other relevant impact supporting
a benefit of exclusion, we will conduct an exclusion analysis for the
relevant area or areas. We may also exercise the discretion to evaluate
any other particular areas for possible exclusion. We may exclude an
area from critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Proposed Exclusions
We are proposing to exclude the following areas under section
4(b)(2) of the Act from the critical habitat designation for the
northern spotted owl. Table 1, below, identifies the specific critical
habitat units from the December 4, 2012, final rule (77 FR 71876;
codified at 50 CFR 17.95(b)), that we propose to exclude, at least in
part, the approximate areas (ac, ha) of lands involved, and a brief
summary of the rationale for the proposed exclusions. The Table 8
Addendum that follows displays this same information but in the format
used in Table 8 in the December 4, 2012, final rule (77 FR 71876, pp.
71948-71949).
[[Page 38255]]
Table 1--Areas Proposed for Exclusion by Critical Habitat Unit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas proposed for
Unit Specific area habitat, in acres exclusion, in acres Rationale for proposed exclusion
(hectares) (hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1............................. NCO 4............ 179,745 (72,740) 1,840 (744) BLM Harvest Land Base.
1............................. NCO 5............ 142,937 (57,845) 8,780 (3,553) BLM Harvest Land Base.
2............................. ORC 1............ 110,657 (44,781) 1,280 (518) BLM Harvest Land Base.
2............................. ORC 2............ 261,405 (105,787) 7,906 (3,199) BLM Harvest Land Base/Indian Lands.
2............................. ORC 3............ 203,681 (82,427) 4,956 (2,006) BLM Harvest Land Base/Indian Lands.
2............................. ORC 5............ 176,905 (71,591) 14,998 (6,070) BLM Harvest Land Base.
2............................. ORC 6............ 81,900 (33,144) 4,300 (1,740) BLM Harvest Land Base/Indian Lands.
6............................. WCS 1............ 92,586 (37,468) 881 (356) BLM Harvest Land Base.
6............................. WCS 2............ 150,105 (60,745) 1,083 (438) BLM Harvest Land Base.
6............................. WCS 3............ 319,736 (129,393) 1,923 (778 BLM Harvest Land Base.
6............................. WCS 4............ 379,130 (153,429) 6 (2) BLM Harvest Land Base.
6............................. WCS 5............ 356,415 (144,236) 2 (<1) BLM Harvest Land Base.
6............................. WCS 6............ 99,558 (40,290) 18,529 (7,498) BLM Harvest Land Base.
8............................. ECS 1............ 127,801 (51,719) 16,622 (6,727) BLM Harvest Land Base.
8............................. ECS 2............ 66,086 (26,744) 2,380 (963) BLM Harvest Land Base.
9............................. KLW 1............ 147,326 (59,621) 14,887 (6,025) BLM Harvest Land Base/Indian Lands.
9............................. KLW 2............ 148,929 (60,674) <1 (<1) BLM Harvest Land Base.
9............................. KLW 3............ 143,862 (58,219) 1,656 (670) BLM Harvest Land Base.
9............................. KLW 4............ 158,299 (64,061) 785 (318) BLM Harvest Land Base.
9............................. KLW 5............ 31,085 (12,580) <1 (<1) BLM Harvest Land Base.
10............................ KLE 1............ 242,338 (98,071) 30 (12) BLM Harvest Land Base/Indian Lands.
10............................ KLE 2............ 101,942 (41,255) 29,958 (12,124) BLM Harvest Land Base/Indian Lands.
10............................ KLE 3............ 111,410 (45,086) 48,334 (19,560) BLM Harvest Land Base.
10............................ KLE 4............ 254,442 (102,969) 1 (<1) BLM Harvest Land Base.
10............................ KLE 5............ 38,283 (15,493) 12,241 (4,954) BLM Harvest Land Base.
10............................ KLE 6............ 167,849 (67,926) 11,403 (4,614) BLM Harvest Land Base.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8 Addendum \1\--Additional Lands Proposed for Exclusion From the Designation of Critical Habitat Under Section 4(b)(2) of the Act
--------------------------------------------------------------------------------------------------------------------------------------------------------
Type of agreement Critical habitat unit State Landowner/agency Acres Hectares
--------------------------------------------------------------------------------------------------------------------------------------------------------
Resource Management Plan............. NCO........................ OR......................... BLM Harvest Land Base.. 10,620 4,298
ORC........................ OR......................... BLM Harvest Land Base.. 27,866 11,277
WCS........................ OR......................... BLM Harvest Land Base.. 22,438 9,080
ECS........................ OR......................... BLM Harvest Land Base.. 19,002 7,690
KLW........................ OR......................... BLM Harvest Land Base.. 13,508 5,46
KLE........................ OR......................... BLM Harvest Land Base.. 91,184 36,901
Tribal lands......................... ORC........................ OR......................... CTCLUSI2............... 5,575 2,256
KLE........................ OR......................... CCBUTI3................ 10,783 4,364
KLW........................ OR......................... CCBUTI................. 3,821 1,546
-------------------------------
Total additional lands proposed ........................... ........................... ....................... 204,797 82,879
for exclusion under section
4(b)(2) of the Act.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This table is an addendum to table 8 of the December 4, 2012, final rule (77 FR 71876); table 8 appears at 77 FR 71948-71949.
\2\ CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
\3\ CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians.
\4\ Total is slightly higher due to rounding of partial acres.
We specifically solicit comments on the inclusion or exclusion of
these areas from the critical habitat designation for the northern
spotted owl (77 FR 71876, December 4, 2012), codified at 50 CFR
17.95(b). These proposed exclusions are based on new information that
has become available since the December 4, 2012, critical habitat
designation for the northern spotted owl, including the BLM's 2016
revision to its RMPs for western Oregon (BLM 2016a, b) and the Western
Oregon Tribal Fairness Act (Pub. L. 115-103). In the paragraphs below,
we provide a detailed analysis of our consideration of these lands for
exclusion under section 4(b)(2) of the Act.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are other conservation agreements and
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we consider any Tribal forest
management plans and partnerships and consider the government-to-
government relationship of the United States with
[[Page 38256]]
Tribes. We also consider any social impacts that might occur because of
the designation.
Indian Lands
Several Executive Orders, Secretarial Orders, and departmental
policies address how we engage with Tribes. These guidance documents
generally confirm our trust responsibilities to Tribes, recognize that
Tribes have sovereign authority to control Indian lands, emphasize the
importance of developing partnerships with Tribal governments, and
direct the Service to consult with Tribes on a government-to-government
basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (``Services''), Secretarial Order
3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997) (S.O.
3206), affirms that Tribes may participate fully in the listing
process, including designation of critical habitat. The appendix to
S.O. 3206 also states: ``In keeping with the trust responsibility, [the
Services] shall consult with the affected Indian tribe(s) when
considering the designation of critical habitat in an area that may
impact tribal trust resources, tribally-owned fee lands, or the
exercise of tribal rights. Critical habitat shall not be designated in
such areas unless it is determined essential to conserve a listed
species. In designating critical habitat, the Services shall evaluate
and document the extent to which the conservation needs of the listed
species can be achieved by limiting the designation to other lands.''
In light of this instruction, when we undertake a discretionary section
4(b)(2) exclusion analysis, we will always consider exclusions of
Indian lands under section 4(b)(2) of the Act prior to finalizing a
designation of critical habitat, and will give great weight to Tribal
comments in analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating Indian
lands or waters as critical habitat, nor does it state that Indian
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential physical or biological features that
may require special management or protection and unoccupied areas that
are essential to the conservation of a species), without regard to
landownership. While S.O. 3206 provides important direction, it
expressly states that it does not modify the Secretaries' statutory
authority.
In our December 4, 2012, final rule (77 FR 71876), we prioritized
areas for critical habitat designation by looking first to Federal
lands, followed by State, private, and Indian lands. No Indian lands
were designated in our final rule because we found that we could
achieve the conservation of the northern spotted owl by limiting the
designation to other lands. However, on January 8, 2018, the Western
Oregon Tribal Fairness Act (Pub. L. 115-103) was passed by Congress and
signed by the President. This act mandated that certain lands managed
by BLM be taken into trust by the United States for the benefit of the
Cow Creek Band of Umpqua Tribe of Indians (CCBUTI) and the Confederated
Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI). In January
2020, BLM released its decision record (BLM 2020) transferring
management authority of approximately 17,800 acres (7,203 hectares) to
CCBUTI and 14,700 acres (5,949 hectares) to CTCLUSI. Of the transferred
lands, 20,179 acres (8,166 hectares) are located within designated
critical habitat for the northern spotted owl. We have considered this
new information and are now proposing these lands for exclusion under
section 4(b)(2) of the Act, as explained below.
Of the lands transferred in trust to the CCBUTI, 14,604 acres
(5,910 hectares) are located within currently designated critical
habitat. These lands will be managed under the Tribe's Forest Resource
Management Plan (CCBUTI 2019) using a ``continuous forest management''
approach that provides for a continued supply of timber, a steady
stream of income, and a reduction in the risk of wildfire and disease.
The land within the CCBUTI conveyance is in the Klamath Physiographic
Province, an area disproportionally impacted by fire. The objectives in
the CCBUTI forest management plan addresses fire risk and disease
concerns to alleviate the risk of wildfire. Of the lands transferred in
trust to the CTCLUSI, 5,575 acres (2,256 hectares) are located within
the critical habitat designation. The Tribe is developing a management
plan for these recently transferred lands (Andringa 2020, pers. comm.).
We will continue to provide technical assistance to the Tribes on the
conservation of endangered and threatened species and on the
development and implementation of their forest management plans;
however, these plans are not the basis of our proposal to exclude these
lands from the critical habitat designation.
In accordance with S.O. 3206 and other directives, we believe that
fish, wildlife, and other natural resources on Indian lands may be more
appropriately managed under Tribal authorities, policies, and programs
than through Federal regulation where Tribal management addresses the
conservation needs of listed species. Supporting Tribal management
strengthens the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of endangered and threatened species populations
depend. Additionally, the Indian lands proposed for exclusion represent
only 0.21 percent of the current critical habitat designation. Although
these lands contribute to the conservation of the northern spotted owl,
we believe the conservation needs of the northern spotted owl can be
achieved by limiting the designation to the other lands in the critical
habitat designation. We also find that the benefit of our partnerships
with these Tribal governments and our acknowledgment of Tribal
sovereignty over managing these lands by excluding them from the
critical habitat designation outweigh the conservation value of
including these 20,179 acres (8,166 hectares) in the designation.
Federal Lands
O&C Lands--In general, our proposed exclusions of critical habitat
for the northern spotted owl are focused on the Oregon and California
Railroad Revested Lands (O&C lands), particularly those areas that have
been identified primarily for commercial timber harvest under Federal
resource management plans. The O&C lands were revested to the Federal
Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The
Oregon and California Revested Lands Sustained Yield Management Act of
1937 (O&C Act; Pub. L. 75-405) addresses the management of O&C lands.
The O&C Act identifies the primary use of revested timberlands for
permanent forest production. These lands occur in western Oregon in a
checkerboard pattern intermingled with private land across 18 counties.
Most of these lands (82 percent) are administered by BLM (FWS 2019, p.
1) pursuant to its RMPs. BLM's RMPs identify certain revested
timberlands for commercial timber harvest. The opening statement of the
O&C Act provides that these lands be managed ``for permanent forest
production, and the timber thereon shall be sold, cut, and removed in
conformity with the principle of sustained yield for the purpose of
providing a permanent source of timber supply, protecting
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watersheds, regulating stream flow, and contributing to the economic
stability of local communities and industries, and providing
recreational facilities.'' The counties where O&C lands are located
participate in a revenue-sharing program with the Federal Government
based on commercial receipts (e.g., income from commercial timber
harvest) generated on these Federal lands.
Since the mid-1970s, scientists and land managers have recognized
the importance of forests located on O&C lands to the conservation of
the northern spotted owl and have attempted to reconcile this
conservation need with other land uses (Thomas et al. 1990, entire).
Starting in 1977, BLM worked closely with scientists and other State
and Federal agencies to implement northern spotted owl conservation
measures on O&C lands. Over the ensuing decades, the northern spotted
owl was listed as a threatened species under the Act, critical habitat
was designated (57 FR 1796, January 15, 1992) and revised two times (73
FR 47326, August 13, 2008; 77 FR 71876, December 4, 2012) on portions
of the O&C lands, and a recovery plan for the northern spotted owl was
completed (73 FR 29471, May 21, 2008; p. 29472) and revised (76 FR
38575, July 1, 2011). These and other scientific reviews consistently
recognized the need for large portions of the O&C forest to be managed
for northern spotted owl conservation while also allowing for other
uses of these lands, including timber harvest.
BLM Harvest Land Base--Based on new information available since the
publication of the December 4, 2012, revised critical habitat
designation (77 FR 71876), we are proposing to exclude from critical
habitat 184,618 acres (74,650 hectares) of BLM lands where programmed
timber harvest is planned to occur under the revised RMPs (BLM 2016a,
b), i.e., the ``Harvest Land Base'' that we describe in detail further
below. Approximately 172,430 acres (69,779 hectares) of this Harvest
Land Base is O&C lands.
In 2011, the Service revised the recovery plan for the northern
spotted owl (see 76 FR 38575, July 1, 2011), and the revised plan
recommended ``continued application of the reserve network of the NWFP
until the 2008 designated spotted owl critical habitat is revised and/
or the land management agencies amend their land management plans
taking into account the guidance in this Revised Recovery Plan'' (USFWS
2011, p. II-3). On December 4, 2012, the Service published a final rule
revising the northern spotted owl critical habitat designation (77 FR
71876), and in 2016, BLM revised its RMPs for western Oregon, resulting
in two separate plans (BLM 2016a, b). BLM's 2016 revision of its RMPs
fully considered the 2011 recovery plan recommendation. These two BLM
plans, the Northwestern Oregon and Coastal Oregon Record of Decision
and Resource Management Plan (BLM 2016a) and the Southwestern Oregon
Record of Decision and Resource Management Plan (BLM 2016b), address
all or part of six BLM districts across western Oregon.
The RMPs provide direction for the management of approximately 2.5
million acres (1 million hectares) of BLM-administered lands, for the
purposes of producing a sustained yield of timber, contributing to the
recovery of endangered and threatened species, providing clean water,
restoring fire-adapted ecosystems, and providing for recreation
opportunities (BLM 2016a, p. 20). The management direction provided in
the RMPs is used to develop and implement specific projects and actions
during the life of the plans.
The RMP revisions assigned land use allocations (LUAs) across BLM-
managed lands in western Oregon; the LUAs define areas where specific
activities are allowed, restricted, or excluded. The BLM LUAs include
Late Successional Reserves (LSR), Congressionally Reserved lands,
District Designated Reserves, and Riparian Reserves (collectively
considered ``reserve'' LUAs) and Eastside Management Area and Harvest
Land Base (BLM 2016a, pp. 55-74).
Reserve LUAs comprise 74.6 percent (1,847,830 acres (747,790
hectares)) of the acres of BLM land within LUAs (FWS 2016, p. 9). These
lands are managed for various purposes, including preserving wilderness
areas, natural areas, and structurally complex forest; recreation
management; maintaining facilities and infrastructure; some timber
harvest and fuels management; and conserving lands along streams and
waterways. Of these lands, 51 percent (948,466 acres (383,830
hectares)) are designated as LSR, 64 percent of which (603,090 acres
(244,061 hectares)) are located within the critical habitat designation
for the northern spotted owl (FWS 2016, p. 9). The management
objectives on LSRs are designed to promote older, structurally complex
forest and to promote or maintain habitat for the northern spotted owl
and marbled murrelet (Brachyramphus marmoratus), although some timber
harvest of varying intensity is allowed. The recovery plan for the
northern spotted owl relies on the LSR network as the foundation for
northern spotted owl recovery on Federal lands (FWS 2011, p. III-41).
The Service found that the anticipated level of timber harvest in LSRs
under these RMPs was not likely to jeopardize the species or destroy or
adversely modify critical habitat (FWS 2016, pp. 700-703).
The Harvest Land Base allocation comprises 19 percent (469,215
acres (189,884 hectares)) of the overall LUAs and is where the majority
of programmed timber harvest will occur (FWS 2016, p. 9; BLM 2016a, pp.
59-63). Of these acres, 39 percent (184,618 acres (74,650 hectares))
are located within the critical habitat designation for the northern
spotted owl. Over 90 percent of these acres (172,430 acres (69,779
hectares)) are located on O&C lands. Under the management direction for
the Harvest Land Base, timber harvest intensity varies based on the
sub-allocation (moderate intensity timber area, light intensity timber
area, or uneven-aged timber area) within the Harvest Land Base (BLM
2016a, pp. 59-63).
The management direction specific to the northern spotted owl (BLM
2016a, p. 100) applies to all LUAs designated in the RMPs. This
direction provides for the management of habitat to facilitate movement
and survival between and through large blocks of northern spotted owl
nesting and roosting habitat.
We completed a programmatic section 7 consultation on the RMPs in
2016, under the assumption that BLM will implement actions consistent
with the RMPs over an analytical timeframe of 50 years (FWS 2016, p.
2). This approach allowed for the broad-scale evaluation of BLM's
program to ensure that the management direction and objectives of the
program are consistent with the conservation of listed species, while
also providing a reliable mechanism for site-specific consultation at
the stepped-down, project-level scale. The adequacy of this approach
for the conservation of listed species is further sustained by the
requirement for the action agency to reinitiate consultation under
certain circumstances.
Reinitiation of the programmatic section 7 consultation may occur
at any time during the course of program implementation if: (1) The
amount or extent of incidental take is exceeded; (2) new information
reveals that the effects of the action may affect listed species or
critical habitat in a manner or to an extent not previously considered;
(3) the identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not
considered in the biological opinion; or (4) a new species
[[Page 38258]]
is listed or critical habitat designated that may be affected by the
identified action, consistent with our August 27, 2019, final rule
revising portions of our regulations that implement section 7 of the
Act (see 84 FR 44976, pp. 45017-45018). The biological opinion on the
RMPs also describes some additional specific conditions concerning
northern spotted owl demographics and barred owl management
implementation under which reinitiation of consultation would be
necessary (FWS 2016, pp. 703-705).
BLM incorporated key aspects of the recovery plan for the northern
spotted owl into its RMPs, consistent with its authorities and
resources. Important features of BLM's approach include:
Overall impacts to extant northern spotted owls are
minimized. Take of northern spotted owl territorial pairs or resident
singles from timber harvest will be avoided to the greatest possible
extent during the first 5 to 8 years of the RMPs as the barred owl
removal experiment (FWS 2013) is conducted and evaluated. Subsequent
effects to northern spotted owls would be meted out over time in the
Harvest Land Base and minimized in other land use allocations.
If the barred owl removal experiment leads to a longer
term barred owl management program, BLM will support such a program on
the lands they manage. Barred owl management would help offset the
adverse effects associated with the RMPs and is expected to result in a
net positive impact on the recovery of northern spotted owls when
considering the overall effect of the RMPs over the next 50 years.
There will be a net increase in suitable habitat for
northern spotted owls during the life of the RMPs due to forest
ingrowth outpacing harvest, and the RMPs contain more reserve acres and
habitat than the NWFP.
As individual projects are proposed under these RMPs, BLM
will consult at the project-specific level with the Service as
necessary, providing assurances that jeopardy and adverse modification
will be avoided and an opportunity to further minimize impacts to
northern spotted owls as on-the-ground actions are designed and
implemented.
BLM will reinitiate section 7 consultation with the
Service if the population projections for the northern spotted owl
described in the biological opinion on the RMPs are not realized within
the timeframes anticipated in the consultation.
For these reasons, as described in its biological opinion issued to
the BLM (FWS 2016, pp. 4-5), the Service expects an overall net
improvement in northern spotted owl populations on BLM lands under the
RMPs, including when taking into account any take or adverse impacts to
northern spotted owls due to timber harvest, fuels management,
recreation, and other activities occurring under the RMPs. Our analysis
of the impacts on the lands within the Harvest Land Base recognized
that while this LUA was not intended to be relied upon for demographic
support of northern spotted owls, the management direction under the
RMPs includes provisions that would contribute to the further
development of late-successional habitat, including additional critical
habitat PBFs, over time (FWS 2016, p. 553; 77 FR 71876, December 4,
2012, pp. 71906-71907). Although late-successional habitat within the
Harvest Land Base may not remain on the landscape for the long term,
the presence of northern spotted owl habitat within the Harvest Land
Base in the short term would assist in northern spotted owl movement
(PBF 4) across the landscape and could potentially provide refugia from
barred owls while habitat continues to mature into more complex habitat
and develop additional PBFs over time in reserved LUAs (FWS 2016, p.
553; 77 FR 71876, December 4, 2012; pp. 71906-71907).
The spatial configuration of reserves; the management of those
reserves to retain, promote, and develop northern spotted owl habitat;
and the management and scheduling of timber sales within the Harvest
Land Base are all expected to provide for northern spotted owl
dispersal between physiographic provinces and between and among large
blocks of habitat designed to support clusters of reproducing northern
spotted owls (FWS 2016, p. 698). In particular, BLM refined their
preferred alternative management approach to minimize the creation of
strong barriers to northern spotted owl east-west movement and survival
between the Oregon Coast Range and Oregon Western Cascades
physiographic provinces, and north-south movement and survival between
habitat blocks within the Oregon Coast Range province, by augmenting
its allocation to LSRs in those areas (BLM 2016c, p. 17). Therefore,
BLM-planned timber harvest during the interim period while a barred owl
management strategy is considered is not expected to substantially
influence the distribution of northern spotted owls at the local,
action area, or rangewide scales.
The area included in the 2012 critical habitat designation (77 FR
71876) was increased from previous designations in part to account for
and buffer localized impacts to habitat as a consequence of natural
(e.g., wildfire) and human-caused disturbance (e.g., timber harvest).
That is, we anticipate some loss of habitat within individual critical
habitat units and, for the human-caused impacts, have worked closely
with land managers to ensure these impacts are consistent with the
long-term recovery of the species. Of the designated critical habitat
on BLM-managed lands in western Oregon addressed by the RMPs, 15
percent of critical habitat is designated on the Harvest Land Base and
85 percent is designated on other LUAs. The Harvest Land Base portion
of the BLM landscape is expected to provide less contribution to
northern spotted owl critical habitat over time, while the reserve
portions of the BLM lands will provide the necessary contributions for
northern spotted owl conservation (FWS 2016, p. 554).
Although the loss of some or all the PBFs within northern spotted
owl critical habitat within the Harvest Land Base is an adverse effect
and cannot be discounted, as we noted in the 2016 biological opinion on
the RMPs (FWS 2016, p. 691), the protection, ingrowth, and further
development of PBFs within northern spotted owl critical habitat in
reserve LUAs are expected to improve the function of all critical
habitat units within the areas covered by the RMPs. The reserve LUAs
have the additional advantage of improving critical habitat conditions
in areas where barred owl management is most likely to be implemented.
Barred owl management, if implemented, would be most likely to occur
where we anticipate the future core of the northern spotted owl
population to reside and where critical habitat can provide the
greatest value.
Additionally, we noted that the functionality of the critical
habitat network on BLM-managed lands and rangewide was anticipated to
improve, in part as the land management agencies updated their land
management plans to incorporate recommendations of the revised recovery
plan for the northern spotted owl (USFWS 2011, p. II-3). Accordingly,
we found in our 2016 biological opinion on the RMPs (FWS 2016, p. 700)
that, even with the projected timber harvest in the Harvest Land Base,
the management direction implemented under the RMPs is fully consistent
with the revised recovery plan (USFWS 2011) and would not appreciably
diminish the conservation value of, or adversely modify, critical
habitat (FWS 2016, p. 702). The conservation measures put in place by
BLM's 2016 RMPs, including
[[Page 38259]]
management direction for the LUAs and commitments to support barred owl
research and management, are expected to result in a net increase in
northern spotted owl conservation compared to the status quo.
Therefore, we find that excluding the Harvest Land Base acres from the
critical habitat designation, as proposed in this document, would not
reduce the overall conservation of the northern spotted owl and its
habitat provided that the conservation measures in the RMPs are
implemented as planned. We thus find that these exclusions would not
result in extinction of the species.
BLM will continue to rely on the effectiveness monitoring
established under the NWFP for the northern spotted owl and late-
successional and old growth ecosystems. Monitoring will assess status
and trends in northern spotted owl populations and habitat to evaluate
whether the implementation of the RMPs is reversing the downward trend
of populations and maintaining and restoring habitat necessary to
support viable owl populations (BLM 2016a).
In conclusion, the revised BLM RMPs provide for the conservation of
the essential PBFs throughout the reserve LUAs and mete out the impacts
to northern spotted owl habitat in the Harvest Land Base over time
while the habitat conditions in the reserve LUAs improve through
ingrowth. Based on our analysis in the biological opinion on the RMPs
(FWS 2016, pp. 700-703) and the BLM's conclusions in its records of
decision adopting the RMPs, the conservation strategies in the RMPs are
likely to be effective. These conservation measures will continue to be
in effect regardless of whether the Harvest Land Base areas are
designated as critical habitat for the northern spotted owl.
As described above, these Harvest Land Base areas provide a
relatively low level of short-term conservation value. Retaining them
as designated critical habitat, which suggests that they have a
conservation value similar or equal to that of the LSR lands, may send
a confusing message to the public and local land managers. Also, all
Federal actions in these Harvest Land Base areas that may affect
currently designated critical habitat would require section 7
consultation. These consultations provide no incremental conservation
benefit over what is already provided for in the RMPs and thus would
not be an efficient use of limited consultation and administrative
resources. The benefits of including Harvest Land Base areas within
critical habitat for the northern spotted owl are, therefore, limited
relative to the conservation value provided by the RMPs. Additionally,
actions within the Harvest Land Base that may affect suitable northern
spotted owl habitat will still be subject to section 7 consultation to
insure that actions in those areas are not likely to jeopardize the
continued existence of the species. Given these provisions and
assurances, in conjunction with all of the other considerations
discussed above, we conclude that the benefits of including these
Harvest Land Base areas in critical habitat are relatively negligible.
On the other hand, some appreciable benefit could be realized by
excluding Harvest Land Base areas from critical habitat. Executive
Order 12866 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. Excluding Harvest Land Base lands from the
northern spotted owl critical habitat designation reduces the burden of
additional section 7 consultation for these lands that serve primarily
to meet BLM's timber sale volume objectives. Therefore, excluding these
Harvest Land Base lands from the critical habitat designation would
provide some incremental benefit by clarifying the primary role of
these lands in relation to northern spotted owl conservation, and by
eliminating any unnecessary regulatory oversight. These benefits of
exclusion outweigh the relatively minimal benefit of retaining these
lands as critical habitat.
We note that there is ongoing litigation challenging BLM's
management of O&C lands under the 2016 RMPs. One district court has
concluded the 2016 RMPs (including their consideration of the Act) do
not conflict with the O&C Act, see Pac. Rivers v. U.S. Bureau of Land
Mgmnt., 6:16-cv-01598-JR, 2019 WL 1232835 (D. Or. Mar.15, 2019), aff'd
sub nom. Rivers v. Bureau of Land Mgmt., 815 Fed. App'x 107 (9th Cir.
2020). In a separate proceeding, the U.S. District Court for the
District of Columbia (D.D.C.), in a consolidated set of cases, found
that the RMPs violate the O&C Act because BLM excluded portions of O&C
timberland from sustained yield harvest (i.e., the BLM allocated some
timberlands to reserves instead of the Harvest Land Base); see, e.g.,
American Forest Resource Council et al. v. Hammond, 422 F. Supp. 3d 184
(D.D.C. 2019). The parties have briefed the court on the appropriate
remedy, but the court has not yet issued an order.
We considered this information in developing this proposed rule.
This proposed rule is based on the 2016 RMPs as they are, and not as
they may be modified in the future. While the litigation outcomes of
the cases challenging the BLM's management of O&C lands are not certain
and we will not speculate on the ultimate outcomes of the litigation,
we acknowledge the potential for future reductions in the BLM's
reserves and changes in the Harvest Land Base. As discussed above, in
the consolidated D.D.C. cases, the court has already found that the BLM
violated the O&C Act by excluding portions of O&C timberlands from
sustained yield timber harvest. Consequently, the Harvest Land Base
might change as a result of this litigation by remedy order of the
court either with, or without, land use planning undertaken by BLM.
National Forest System Lands--We evaluated whether exclusions from
the critical habitat designation under section 4(b)(2) of the Act
should be considered within the relatively small amount of O&C lands
managed as National Forest System lands by USFS. Our preliminary
analysis of potential areas to consider for exclusion revealed small
areas of lower quality interspersed with higher quality habitat
scattered across and imbedded within critical habitat subunits.
Therefore, in coordination with USFS, we did not identify any National
Forest System lands where we believed the benefits of exclusion
outweighed the benefits of inclusion at the critical habitat unit
mapping scale. In other words, our preliminary view is that formally
excluding these lower quality areas from critical habitat would require
significant mapping and analytical effort, and that it is unclear what
economic or other administrative benefit might be derived from this
process.
To date, we have found all proposed timber harvest under the NWFP
on National Forest System lands in critical habitat to: (1) Be
compatible with northern spotted owl conservation, and (2) not destroy
or adversely modify critical habitat. Therefore, we believe the ongoing
section 7 consultation processes with USFS under its current land
management plans continue to be the best way to evaluate effects of
USFS actions on critical habitat function. We will continue to work
closely with USFS to address the conservation needs of the northern
spotted owl as the agency updates its various forest plans. We invite
comments specifically addressing National Forest System lands and the
reasons why we should or should not exclude habitat on these
[[Page 38260]]
lands as ``critical habitat'' under section 4(b)(2) of the Act.
Comments should address the related benefits of including or excluding
specific areas; whether the benefits of exclusion outweigh those of
inclusion; and whether the exclusion will not result in the extinction
of the species. Additionally, comments should address any probable
economic, national security, or other relevant impacts of the
designation on areas recommended for consideration for exclusion.
State Lands
We also evaluated whether additional exclusions from the critical
habitat designation under section 4(b)(2) of the Act should be
considered on State lands. In our December 4, 2012, critical habitat
designation (77 FR 71876), we excluded State lands in Washington and
California that were covered by HCPs and other conservation plans. In
Oregon, State agencies are currently working on HCPs that will address
State forest lands in western Oregon, including the Elliott State
Forest (managed by the Oregon Department of State Lands) and other
State forest lands in western Oregon (managed by the Oregon Department
of Forestry).
HCPs necessary in support of incidental take permits under section
10(a)(1)(B) of the Act provide for partnerships with non-Federal
entities to minimize and mitigate impacts to listed species and their
habitat. In some cases, as a result of their commitments in the HCPs,
incidental take permittees agree to provide more conservation of the
species and their habitats on private lands than designation of
critical habitat would provide alone. We place great value on the
partnerships that are developed during the preparation and
implementation of HCPs.
When we undertake a discretionary section 4(b)(2) exclusion
analysis, we consider areas covered by an approved HCP, and generally
exclude such areas from a designation of critical habitat if three
conditions are met:
(1) The permittee is properly implementing the HCP.
(2) The species for which critical habitat is designated is a
covered species in the HCP.
(3) The HCP specifically addresses the habitat of the species for
which critical habitat is being designated and meets the conservation
needs of the species in the planning area.
The proposed State forest HCPs and any section 10(a)(1)(B) permits
will not be completed prior to the publication of this document; thus,
they do not yet fulfill the above criteria. As a result, we are not
proposing additional State lands for exclusion from the critical
habitat designation for the northern spotted owl. We may revisit
consideration of section 4(b)(2) exclusions on State lands if and when
the HCPs have been adopted and we have issued section 10(a)(1)(B)
permits.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you believe lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has identified this proposed rule as
a significant rule.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 that the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; 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 whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this revised 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.
Under the RFA, as amended, and consistent with recent court
decisions, Federal agencies are required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself; in other words, the RFA does not require
agencies to evaluate the potential impacts to indirectly regulated
entities. The regulatory mechanism through which critical habitat
[[Page 38261]]
protections are realized is section 7 of the Act, which requires
Federal agencies, in consultation with the Service, to ensure that any
action authorized, funded, or carried out by the agency is not likely
to destroy or adversely modify critical habitat. Therefore, under
section 7, only Federal action agencies are directly subject to the
specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. It follows that
only Federal action agencies would be directly regulated if we adopt
the proposed critical habitat designation. There is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities would be directly regulated by
this rulemaking, the Service certifies that, if made final as proposed,
this revised critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
Additionally, in this document, we are proposing to remove areas from
the northern spotted owl's critical habitat designation, thus reducing
regulatory impacts for affected Federal agencies.
In summary, we have considered whether the proposed revised
designation 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 made final,
this proposed revised critical habitat designation will not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis for the December 4, 2012,
revised critical habitat designation for the northern spotted owl (77
FR 71876), we did not find that the critical habitat designation would
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is 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
et seq.), we make the following finding:
(1) This proposed rule would 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 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. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``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.''
The proposed revised designation of critical habitat does not
impose a legally binding duty on non-Federal Government entities or
private parties. Under the Act, the only regulatory effect of a
critical habitat designation is that Federal agencies must ensure that
their actions do not destroy or adversely modify critical habitat under
section 7. While non-Federal entities that receive Federal funding,
assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
affected by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly affected by a designation decision
because they receive Federal assistance or participate in a voluntary
Federal aid program, the Unfunded Mandates Reform Act would not apply,
nor would such a decision shift the costs of the large entitlement
programs listed above onto State governments. Again, the proposed
decision here would remove areas from designation.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because we are proposing only
exclusions from the northern spotted owl's critical habitat
designation; we are not proposing to designate additional lands as
critical habitat for the species. Therefore, a Small Government Agency
Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of revising designated
critical habitat for the northern spotted owl in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
for this proposed revision of the designation of critical habitat for
the northern spotted owl, and it concludes that, if adopted, this
revised designation of critical habitat does not pose significant
takings implications for lands within or affected by the designation.
Again, the proposed decision here would remove areas from designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant federalism effects.
[[Page 38262]]
A federalism summary impact statement is not required. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the proposed rule
does not have substantial direct effects either on the States, or on
the relationship between the Federal Government and the States, or on
the distribution of powers and responsibilities among the various
levels of government. As noted above, the proposed decision here would
remove areas from designation.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Further, in this document, we are proposing only
exclusions from the northern spotted owl's critical habitat
designation; we are not proposing to designate additional lands as
critical habitat for the species.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed revising
designated critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the December 4, 2012, final rule (77 FR 71876) identifies the
elements of physical or biological features essential to the
conservation of the species, and we are not proposing any changes to
those elements in this document. The areas we are proposing for
exclusion from the designated critical habitat are described in this
document and the maps and coordinates or plot points or both of the
subject areas are included in the administrative record and are
available at http://www.fws.gov/oregonfwo and at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit (see Catron Cty. Bd. of Comm'rs, New
Mexico v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996), we
do not need to prepare environmental analyses pursuant to NEPA (42
U.S.C. 4321 et seq.) in connection with designating critical habitat
under the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the U.S. Court of Appeals for the
Ninth Circuit in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems and that Indian
land occurs within the areas designated as critical habitat for the
northern spotted owl. We will continue to work with Tribal entities
during the development of a final rule for the revised designation of
critical habitat for the northern spotted owl.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Oregon Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Authority
This action is authorized under 16 U.S.C. 1531-1544.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-15414 Filed 7-19-21; 8:45 am]
BILLING CODE 4333-15-P