[Federal Register: July 6, 2000 (Volume 65, Number 130)]
[Page 41719-41720]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of a Habitat Conservation Plan and Receipt of an 
Application for an Incidental Take Permit for the Beaver Creek Tract, 
Lincoln County, Oregon

AGENCY: Fish and Wildlife Service.

ACTION: Notice of receipt of application.


SUMMARY: This notice advises the public that Coast Range Conifers, LLC 
(CRC or applicant) has applied to the Fish and Wildlife Service 
(Service) for an incidental take permit pursuant to section 10(a)(1)(B) 
of the Endangered Species Act of 1973, as amended (ESA). The 
application has been assigned permit number TE-028956-0. The proposed 
permit would authorize the incidental take, in the form of habitat 
modification (harm) and disturbance (harass), of the bald eagle 
(Haliaeetus leucocephalus) which is federally listed as threatened.
    The Service announces the receipt of the applicant's incidental 
take permit application and the availability of the Coast Range 
Conifers Beaver Tract Habitat Conservation Plan (Beaver Tract Plan) and 
draft Implementation Agreement, which accompany the incidental take 
permit application, for public comment. The Beaver Tract Plan describes 
the proposed project and the measures the applicant will undertake to 
minimize for project impacts to the bald eagle. These measures and 
associated impacts are also described in the background and summary 
information that follow. The Service is presently conducting the 
National Environmental Protection Act (NEPA) process and will announce 
the availability of NEPA compliance documentation soon.

DATES: Written comments on the permit application and Plan should be 
received on or before August 7, 2000.

ADDRESSES: Individuals wishing copies of the permit application or 
copies of the full text of the Beaver Tract Plan, should immediately 
contact the office and personnel listed below. Documents also will be 
available for public inspection, by appointment, during normal business 
hours at the address below. Comments regarding the permit application, 
draft Implementation Agreement or the Beaver Tract Plan should be 
addressed to State Supervisor, Fish and Wildlife Service, Oregon State 
Office, 2600 S.E. 98th Avenue, Suite 100, Portland, Oregon 97266. 
Please refer to permit number TE-028956-0 when submitting comments.

FOR FURTHER INFORMATION CONTACT: Mr. Rich Szlemp, Fish and Wildlife 
Service, Oregon State Office, telephone (503) 231-6179.

SUPPLEMENTARY INFORMATION: Section 9 of the ESA and Federal regulation 
prohibits the ``taking'' of a species listed as endangered or 
threatened. However, the Service, under limited circumstances, may 
issue permits to ``incidentally take'' listed species, which is take 
that is incidental to, and not the purpose of, otherwise lawful 
activities. Regulations governing permits for threatened species are 
promulgated in 50 CFR 17.32.

Summary of the Beaver Tract Plan

    The applicant is proposing to harvest about 12 acres of mature 
forest approximately 80 to 140 years old within a 40-acre parcel of 
land. There are approximately 5 to 10 old growth Sitka spruce and 
Douglas-fir trees present in the proposed harvest area. The surrounding 
ownership consists of commercial timber lands containing forests of 
various age classes. The Beaver Tract Plan area contains one known bald 
eagle nest tree and several other trees that could be utilized as nest 
or roost trees. Other listed species that may also be affected by the 
proposed Beaver Tract Plan, but potentially may not be fully addressed, 
include the threatened marbled murrelet (Brachyramphus marmoratus) and 
northern spotted owl (Strix occidentalis caurina) (spotted owl). Please 
refer to ``Summary of Service's Concerns and Recommendations'' below 
for additional discussion on this topic.
    The Beaver Tract Plan contains two alternatives: preferred and no 
action. Under their preferred alternative, the applicant would harvest 
12 acres of mature timber to the extent allowed by the Bald and Golden 
Eagle Protection Act (Eagle Act), Migratory Bird Act, and Oregon Forest 
Practice Act (OFPA) Rules. Under the no action alternative, the subject 
timber would be left standing to provide bald eagle habitat. The 
applicants rejected the no action alternative because they believe it 
would deny them of all economically productive use of the subject 
    The applicants propose the following minimization and mitigation 
    a. Retaining the bald eagle nest tree and two snags or green trees 
per acre, 30 feet or greater in height and 11 inches or greater in 
    b. Conducting harvest activities outside of the period March 1 to 
September 15, except for road building.
    c. Replant Douglas-fir, western red cedar, and/or western hemlock 
over the harvest units. As per OFPA Rules, this planting will take 
place within 12 months after completion of harvest.
    d. Meet the current OFPA Rules to leave all snags and standing dead 
trees unharvested until they have fallen to the ground and rotted away, 
except when they represent a safety hazard for the logging operation.

Additional Background

    CRC submitted a written plan on or about June 30, 1998, to the 
Oregon Department of Forestry to harvest the Beaver Tract to within 330 
feet of the bald eagle nest site. The State Forester rejected that 
written plan on the basis that it did not provide adequate protection 
for the bald eagle nest site. The State Forester required that a 
forested buffer of 400 feet around the nest tree and an additional 100 
foot band in which 50 percent of the live trees would be retained. CRC 
proceeded to harvest the 28 acres surrounding the bald eagle nest site, 
which retained the 12 acres (400 foot radius circle) that are the 
subject of this incidental take permit application. Oregon law allows 
(but does not require) the State Forester to approve logging within 
these protected 12 acres if a landowner receives an Federal incidental 
take permit.

Summary of Service's Concerns and Recommendations

    The Service received the Plan and application on December 28, 1999. 
Unlike most Plans, the Beaver Tract Plan was prepared without any 
opportunities for the Service to provide technical assistance prior to 
the submission of the application. A revised Beaver Tract Plan was 
received on May 18, 2000, in response to the Service's April 18, 2000, 
request for clarification of items in the original Beaver Creek Tract 
Plan. The revised Beaver Tract Plan lacks much of the biological 
analysis and information routinely provided by other applicants to 
expedite processing an incidental take permit.
    The Service has reviewed the Beaver Tract Plan and has some 
concerns with the adequacy of the proposed minimization and mitigation 
measures. We specifically invite the public to

[[Page 41720]]

provide comments on the measures proposed by the applicant.
    As stated in the Beaver Tract Plan, the impacts from the proposed 
harvest would likely eliminate the site as bald eagle habitat, other 
than the retention of the nest tree. While it is not specifically 
stated, we believe that few if any of the existing old growth trees 
would likely be retained under the proposed mitigation (i.e., retaining 
two trees per acre greater than 11 inches in diameter). Based upon the 
proposed harvest and the above assumption regarding tree retention, the 
ability of the site to continue to provide a suitable nest site for 
bald eagles post-harvest is difficult to accurately assess. However, 
the harvest is likely to increase the likelihood of the nest tree and 
any other large standing trees to be subject to blowdown or windthrow 
due to exposure. Furthermore, it is not uncommon for bald eagles to 
have more than one nest site and multiple roosting sites in an area. 
The proposed harvest would diminish the availability of roost sites and 
alternate nest sites. We believe that the harvest proposed in the Plan 
would violate the Bald and Golden Eagle Protection Act.
    The Service believes that other practicable minimization measures 
exist. In our April 18, 2000, letter to CRC we suggested adding the 
following alternative under which we believe we could likely issue an 
incidental take permit and comply with both the ESA and the Bald and 
Golden Eagle Protection Act. This alternative protects the bald eagle 
nest tree from harvest and likely damage associated with harvest in the 
Beaver tract. The prescription is as follows: the nest tree would not 
be harvested. All trees that could come in contact with and damage the 
nest tree if they were felled, would not be harvested. (Directional 
felling would not exclude any trees from this component). For example, 
if a tree is 100 feet tall and is located less than 100 feet from the 
nest tree, then the tree would not be cut. If a tree is 100 feet tall 
and is located greater than 100 feet from the nest tree, then that tree 
is eligible to be cut pending a risk analysis for windthrow (see next 
criteria). The applicant would have to consider whether the removal of 
any trees in the tract would increase the likelihood of windthrow of 
the bald eagle nest tree, or any other nearby trees that could be 
windthrown and result in damage to the bald eagle nest tree. While we 
understand that windthrow can occur within any stand, regardless of its 
composition, we know that certain harvest prescriptions can predictably 
lead to a much greater likelihood of susceptibility to windthrow. 
Measures can be taken when devising a harvest prescription to limit the 
increased likelihood of windthrow. We believe this alternative would 
retain a sufficient area around the nest tree to maintain the integrity 
of the nest site, alternate nest trees, and multiple roost sites and 
perches. The intent of this prescription is to maintain a sufficiently 
sized patch of habitat that is likely to provide important structural 
components for bald eagle breeding habitat, while also providing some 
level of confidence that timber operations and future weather events 
are not likely to effect the existing nest tree and the area 
immediately surrounding the nest tree. CRC responded through their 
legal counsel that no further changes would be made to the Beaver Tract 
Plan. We believe that other alternatives are available. However, these 
alternatives are likely to require an examination of the stand or a 
detailed stand inventory, and a discussion with the landowner and/or 
their legal representative. Because bald eagles are presumed to be 
nesting as of the date of this notice, we would not suggest visiting 
the site until after nesting activities are completed for the season.
    Any alternative we recommend or consider would have to incorporate 
a seasonal restriction. We consider the breeding season for bald eagles 
to be anytime from January 1 through August 31 which is based upon 
their breeding biology. The seasonal restriction being proposed by the 
applicant is from March 1 through September 15. This time period does 
not capture the important period of time in January and February when 
bald eagles engage in breeding activities that may include establishing 
territories, pair bonds, and nest construction.
    The Service has not made a determination as to whether the proposed 
Beaver Tract Plan may affect spotted owls or marbled murrelets. The 
Beaver Tract Plan concludes that the plan area is not sufficient to 
support spotted owls and that take of spotted owls was previously 
addressed in a section 7 consultation under the ESA that was conducted 
on the exchange of this parcel from the U. S. Forest Service to CRC and 
was completed on February 13, 1996. The Beaver Tract Plan states that 
no marbled murrelets have been seen in the area and that incidental 
take of murrelets was also addressed in the above referenced section 7 
    The land exchange section 7 consultation was based upon protocol-
based surveys conducted in 1995 and 1996. At that time, it was 
determined that no spotted owls were using the area. Also at that time, 
it was determined that marbled murrelets were not using the area, 
although there was one detection of murrelets. The nature of this 
detection did not lead to a determination of occupancy or warrant 
additional surveys. The ``Protocol for Surveying Proposed Management 
Activities that may Impact Northern Spotted Owls'', dated March 17, 
1992, and endorsed by the Service, states that 2-year surveys (which 
were done for the Beaver Tract in 1994-1995) are valid for 2 additional 
years before resurveying would be required. The ``Methods for Surveying 
Marbled Murrelets in Forests: An Update to the Protocol for Land 
Management and Research'', dated April 15, 2000, by the Pacific Seabird 
Group, states that for areas surveyed and not determined to be 
occupied, resurveying is recommended after 5 years. Because 5 years has 
elapsed since the last known spotted owl and murrelet surveys covering 
the Beaver Tract, there is some uncertainty as to the likelihood of 
this property currently providing habitat for either of these two 
species. Because of this uncertainty, we request that the results of 
any surveys conducted for spotted owls or murrelets that were completed 
within the past 5 years and that covered the general vicinity of the 
Beaver Tract be submitted to the Service and CRC.
    The Beaver Tract Plan calls for the harvest of approximately 12 
acres. However, the Oregon State Forester required that a 400-foot no-
cut buffer (12 acres) with an additional 100-foot buffer in which only 
50 percent of the live trees could be removed. A 500-foot radius circle 
is approximately 18 acres. Therefore, there is some confusion as to 
what amount of forest is currently left standing on the Beaver Tract 
and potentially what 12 acres are being proposed for harvest.
    This notice is provided pursuant to section 10(c) of the Act. The 
Service will evaluate the permit application, Plan, and comments 
submitted thereon to determine whether the application meets the 
requirements of section 10(a) of the Act. If it is determined that the 
requirements are met, a permit will be issued for the incidental take 
of the bald eagle.

    Dated: June 29, 2000.
David L. McMullen,
Acting Regional Director, Region 1, Portland, Oregon.
[FR Doc. 00-17014 Filed 7-5-00; 8:45 am]