2006 Federal Register, 71 FR 66008; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: November 9, 2006 (Volume 71, Number 217)]
[Rules and Regulations]
[Page 66007-66061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no06-15]

[[Page 66007]]

-----------------------------------------------------------------------

Part III

Department of the Interior

-----------------------------------------------------------------------

Fish and Wildlife Service

-----------------------------------------------------------------------

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Contiguous United States Distinct Population Segment of
the Canada Lynx; Final Rule

[[Page 66008]]

-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU52

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Contiguous United States Distinct Population
Segment of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the contiguous United States distinct
population segment of the Canada lynx (Lynx canadensis) (lynx) pursuant
to the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,841 square miles (mi²) (4,768 square
kilometers (km\2\)) fall within the boundaries of the critical habitat
designation, in three units in the States of Minnesota, Montana, and
Washington.

DATES: This rule becomes effective on December 11, 2006.

ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours, at
the Montana Ecological Services Office, 585 Shepard Way, Helena,
Montana 59601 (telephone 406/449-5225). The final rule, environmental
assessment, and economic analysis are available via the Internet at
http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm
.

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana
Fish and Wildlife Office, at the above address, (telephone 406/449-
5225); Gordon Russell, Field Supervisor, Maine Field Office (207/827-
5938); Tony Sullins, Field Supervisor, Twin Cities Field Office
(Minnesota) (612/725-3548); or Susan Martin, Field Supervisor, Upper
Columbia Fish and Wildlife Office (Washington) (509/891-6839).

SUPPLEMENTARY INFORMATION:

Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act

Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under section 4(b)(2) of the Act, there are significant
limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional
protection to habitat only where there is a Federal action, known as a
``nexus'', that triggers consultation under section 7 of the Act; (2)
the protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat. However,
designation of critical habitat does not require specific actions to
restore or improve habitat.
Currently, only 475 species, or 36 percent of the 1,310 listed
species in the U.S. under the jurisdiction of the Service, have
designated critical habitat. We address the habitat needs of all 1,310
listed species through conservation mechanisms such as listing, section
7 consultations, the section 4 recovery planning process, the section 9
protective prohibitions of unauthorized take, section 6 funding to the
States, the section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas originally proposed for
designation, we evaluated the benefits of designation in light of
Gifford Pinchot Task Force v. United States Fish and Wildlife Service.
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to completion to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on

existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation

[[Page 66009]]

in which those who fear adverse impacts from critical habitat
designations challenge those designations. The cycle of litigation
appears endless, and is very expensive, thus diverting resources from
conservation actions that may provide relatively more benefit to
imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)).
These costs directly reduce the funds available for direct and tangible
conservation actions.

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this rule. For more information,
refer to the proposed critical habitat rule published in the Federal
Register on November 9, 2005 (70 FR 68294); the notice reopening the
public comment period and clarifying the proposed critical habitat
designation, published on February 16, 2006 (71 FR 8258); the notice
reopening the comment period that published on September 11, 2006 (71
FR 53,355); the final listing rule published on March 24, 2000 (65 FR
16052); and the clarification of findings published on July 3, 2003 (68
FR 40076).

Previous Federal Actions

For more information on previous Federal actions concerning the
lynx, refer to the final listing rule published in the Federal Register
on March 24, 2000 (65 FR 16052), and the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076). As a
result of litigation from Defenders of Wildlife, et al., the U.S.
District Court for the District of Columbia instructed us to propose
critical habitat by November 1, 2005, and to issue a final rule for
critical habitat by November 1, 2006. The proposed rule to designate
critical habitat for the lynx was published in the Federal Register on
November 9, 2005 (70 FR 68294). A notice reopening the public comment
period and clarifying the proposed critical habitat designation was
published on February 16, 2006 (71 FR 8258). A Notice of Availability
of the draft economic analysis and draft environmental assessment was
published on September 11, 2006 (71 FR 53355). This final rule has been
completed in compliance with the Court order.
On September 29, 2006, U.S. District Court for the District of
Columbia remanded one element of the 2000 listing decision for lynx.
The Court requires the Service to explain how ``[c]ollectively the
Northeast, Great Lakes, and Southern Rockies do not constitute a
significant portion of the [Lynx] DPS.'' The Court reasoned that ``an
explanation of an important finding in that prior decision, especially
when the explanation (or even the modification or rejection of that
explanation) may be relevant to the new rationale it is offering for
that decision.'' The Court hoped that the Service can accomplish its
task within 90 days, but did not identify a deadline for the remanded
decision in its Order. The Service anticipates it will address this
issue before the end of this year or early next year, and will make its
explanation available in the Federal Register.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
designation of critical habitat for the lynx published on November 9,
2005 (70 FR 68294). A notice reopening the public comment period and
clarifying the proposed critical habitat designation was published on
February 16, 2006 (71 FR 8258). We also contacted appropriate Federal,
State, and local agencies; tribes; scientific organizations; and other
interested parties and invited them to comment on the proposed rule.
The comment period was open from November 9, 2005, to February 7, 2006.
It was reopened on February 16 for an additional 74 days until April
30, 2006. On September 11, 2006 (71 FR 53355), the comment period was
reopened to receive comment on the draft economic analysis and draft
environmental assessment. Comments and new information received that
were relevant to the final designation are addressed in the following
summary and incorporated into the final rule as appropriate.
During the comment period for the proposed rule that was open
between November 9, 2005, and April 30, 2006, we received a total of
8,028 comment letters. For the comment period open from September 11,
2006 to October 11, 2006 we received 1,118 comments. A majority of the
comments received were form letters. Comments were received from
Federal, State, tribal and local governments, non-government
organizations, private businesses, and individuals.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from eleven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from seven of
the peer reviewers. The peer reviewers had differing assessments of our
methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and
incorporated into the final rule as appropriate.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the lynx and addressed them in the following summary.

Peer Reviewer Comments

1. Comment: Some peer reviewers believed that our criteria
(especially regarding evidence of occupancy and reproduction) for
defining lynx critical habitat were too narrow and/or arbitrary, and
resulted in us not including areas they consider important to lynx
conservation, particularly the Kettle Range, the Greater Yellowstone
Area, the Southern Rockies/Colorado, and a slightly more extensive area
in Minnesota. Additionally, we received general comments recommending
we designate critical habitat according to the lynx recovery outline,
which included the areas of concern noted above by peer reviewers in
addition to areas considered secondary or peripheral to recovery.
General comments also were concerned with our criteria, asserting we
should not restrict our designation solely to areas with confirmed
evidence of the presence of reproducing lynx populations because lynx
surveys have not been adequate to detect all reproducing lynx
populations.
Our response: Critical habitat contributes to the overall
conservation of listed species, but does not by itself achieve
conservation. It is not the intent of the Act to designate critical
habitat for every population or occurrence of lynx. In the ``Criteria
Used To Identify Critical Habitat'' section of the proposed and final
critical habitat rules, we describe the parameters used for delineating
areas that contain the physical and biological features essential to
the conservation of lynx, as required by the definition of critical

[[Page 66010]]

habitat when considering occupied areas. We determined that occupied
areas containing the features essential to the conservation of lynx
support the majority of recent lynx records and evidence of breeding
lynx populations since 1995, and have direct connectivity with lynx
populations in Canada. We relied on records since 1995 to ensure that
the proposed critical habitat designation was based on the data that
most closely represented the current status of lynx in the contiguous
United States and the geographic area occupied by the species. Although
the average life span of a wild lynx is not known, we assumed that a
lynx born in 1995 could have been alive in 2000 or 2003, the dates of
publication of the final listing rule and the clarification of
findings. Furthermore, lynx-related research in the contiguous United
States substantially increased after the 1998 proposal to list,
providing additional information on which to base this proposed
critical habitat designation. We recognize that adequate surveys to
confirm the presence of breeding lynx populations have not occurred
everywhere throughout the species' range; however, no information was
provided to us to suggest where there might be undetected breeding
populations that we should more closely evaluate for designation as
critical habitat other than the areas we already considered. We found
the additional areas suggested by commenters were not essential to the
conservation of the lynx.
The areas we considered in our methodology for defining critical
habitat for the lynx did not mirror the exact areas identified in the
recovery outline, but it did reflect the biological concepts considered
important in the recovery plan. We used the best science available in
determining those areas that contained the features essential for the
conservation of lynx. As explained on pages 68302 to 68303 of the
critical habitat proposal (November 9, 2005; 70 FR 68294), the areas we
determined to be essential for the conservation of lynx do not include
all the areas identified in the recovery outline. This is because the
criteria we used for determining areas essential to the conservation of
lynx for the critical habitat designation based on the critical habitat
requirements of the Act which are were more selective than those used
for delineating the recovery areas in the lynx recovery outline.
The recovery outline more broadly encompassed older records of lynx
and did not focus solely on areas directly connected with populations
in Canada, although in the recovery outline it was recognized that
maintaining connectivity with Canadian lynx populations was important.
Furthermore, the areas in the recovery outline were mapped conceptually
and, therefore, include substantial areas which do not contain PCEs for
Lynx, which are unoccupied, and therefore not essential to the
conservation of Lynx. We refined our mapping for the purposes of
designating critical habitat in order to meet the statutory
requirements associated with a rulemaking designating critical habitat.
As a result, areas determined to be essential to the conservation of
lynx for the purposes of critical habitat did not include the entire
areas delineated in the recovery outline.
Specifically, following our methodology, the Kettle Range (WA) and
Greater Yellowstone core areas and the Southern Rockies provisional
core area were determined not to be essential to the conservation of
lynx for the purposes of critical habitat as described in detail in the
Criteria Used To Identify Critical Habitat section of the proposed rule
(November 9, 2005; 70 FR 68294). To summarize: There is no evidence
that a lynx population has occupied the Kettle Range since 1995. In the
Greater Yellowstone Ecosystem, lynx habitat appears to be of lower
quality as indicated by the low numbers of lynx records, and it is not
directly connected to lynx populations in Canada. In the Southern
Rockies it is still uncertain whether a self-sustaining lynx population
will become established as a result of Colorado's reintroduction
effort, but we recognize this reintroduction has been an important
step, although not essential, toward the recovery of lynx, and thus it
is included in the recovery plan, but not the critical habitat
designation. Finally, the Southern Rockies are not directly connected
to lynx populations in Canada.
A substantial portion of the lynx habitat in the Kettle range, the
Greater Yellowstone Area, and the Southern Rockies areas is on Federal
lands, particularly U.S. Forest Service (USFS) lands, which conveys
considerable management attention for lynx; as a result, these areas do
not meet the critical habitat definition. Under a formal conservation
agreement with the Service, the USFS committed to largely avoiding
adverse effects to lynx and using the Lynx Conservation Assessment and
Strategy (LCAS) to guide section 7 effects determinations for lynx
pending amendments to Land and Resource Management Plans (LRMPs) that
provide guidance for the conservation of lynx (USFS and Service 2006,
entire). The LCAS is based on the best available science for lynx (see
section 3(5)(A) discussion below). As a result, lynx habitat in these
three areas is not in need of special management or protection.
2. Comment: Some peer reviewers disagreed with or didn't understand
our rationale for removing USFS and Bureau of Land Management (BLM)
lands from the designation because these lands support a majority of
lynx habitat or lynx occurrence records in their respective geographic
regions. One peer reviewer supported removing such lands. Additionally,
we received numerous general comments either opposing or supporting the
removal of USFS and BLM lands, concerned that not all the LRMPs are
complete or will change over time. Others are concerned that recent
changes to the 2005 National Forest System Land and Resource Management
Planning rules weaken the protective measures in LRMPs.
Our response: U.S. Forest Service lands have been removed from the
designation because either their LRMP has already been revised to
incorporate lynx conservation measures, as is the situation with the
Superior National Forest (NF), or the other National Forests that are
operating under a Conservation Agreement with the Service in which the
USFS agreed to use the LCAS to guide section 7 effects determinations
for lynx (see Application of Section 3(5)(A) discussion, below). The
LCAS is the basis for implementing this Conservation Agreement and the
Superior NF plan revision. As explained starting on page 68307 of the
proposed rule, the LCAS is based on the best available science for
lynx. Bureau of Land Management lands, including the Garnet Resource
Area and the Spokane District, were removed from the proposed
designation because they had already incorporated the provisions of the
LCAS into their Resource Management Plans (see Application of Section
3(5)(A) of the Endangered Species Act discussion, below).
Regarding concerns that the 2005 National Forest System Land and
Resource Management Planning rules weaken protective measures in the
LRMPs, to date, none of the plan amendments for lynx have been
completed under the USFS 2005 Planning Rules, and so any conclusions
regarding the effect of the rules is speculative. However, we note that
future revisions to Forest Service Management Plans will consider the
LCAs and include plan direction to provide for the needs of the lynx,
pursuant to the MOU between the FWS and USFS.

[[Page 66011]]

3. Comment: Some peer reviewers were concerned about using the LCAS
as a basis for removing lands, such as USFS, from the designation
because it is not yet known from a scientific standpoint if the
measures in the LCAS will be adequate to conserve lynx. Another peer
reviewer agreed that the LCAS was based on the best available science,
but was concerned whether it would be kept up-to-date as new
information becomes available. Some peer reviewers believed the
management scope of the LCAS is limited and, therefore, is unlikely to
provide the level of conservation that would be achieved under a
critical habitat designation. Additionally, we received general
comments with similar concerns about the LCAS or suggesting the LCAS
isn't being implemented appropriately.
Our response: As explained starting on page 68307 of the proposed
rule, the LCAS is based on the best available science for lynx. The
LCAS describes how and when updates will occur and that such updates
will be based on the best current lynx science. In fact, revision of
the LCAS is currently underway. Commenters did not provide specific
examples of how the LCAS has not been properly implemented, and we have
no information indicating this is the case. As described in the
Application of Section 3(5)(A) of the Endangered Species Act
discussion, below, USFS and Service are parties to a conservation
agreement that requires the FS to use the LCAS to guide section 7
effects determinations for lynx; all projects in lynx habitat on USFS
lands undergo section 7 review and we have no indication the USFS is
not adhering to the guidance in the LCAs.
4. Comment: One peer reviewer questioned our determination that
non-Federal lands require special management because lynx currently use
a variety of non-Federal lands that support good lynx habitat as a
result of past forest management practices. Prey densities in 15 to 20
years will be determined by current forest management.
Our response: We agree and for this reason, in addition to other
reasons, we have excluded all non-Federal lands from the designation
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).

General Comments

1. Comment: Many commented that our discussion of the value of
designating critical habitat, and the procedural and resource
difficulties involved, was inappropriate and should be addressed in a
different forum, not in a critical habitat rule.
Our response: As discussed in the sections ``Designation of
Critical Habitat Provides Little Additional Protection to Species,''
``Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act,'' and ``Procedural and Resource Difficulties in
Designating Critical Habitat'' and other sections of this and other
critical habitat designations, we believe that, in most cases, other
conservation mechanisms provide greater incentives and conservation
benefits than does the designation of critical habitat. These other
mechanisms include the section 4 recovery planning process, section 6
funding to the States, section 7 consultations, the section 9
protective prohibitions of unauthorized take, the section 10 incidental
take permit process, and cooperative programs with private and public
landholders and Tribal nations.
2. Comment: Many commenters agreed with our discussions in
``Designation of Critical Habitat Provides Little Additional Protection
to Species,'' ``Role of Critical Habitat in Actual Practice of
Administering and Implementing the Act,'' and ``Procedural and Resource
Difficulties in Designating Critical Habitat'' and, as a result,
questioned why we would designate critical habitat for the lynx.
Additional comments suggested that critical habitat should not be
designated because lynx are doing fine without it.
Our response: Section 4(a)(3) of the Act requires that critical
habitat be designated for listed species. The lynx was listed as a
threatened species under the Act on March 24, 2000 (65 FR 16052). Under
section 4(b)(2), the Act requires that a critical habitat designation
be made on the basis of the best scientific data available and after
taking into consideration the economic impact and any other relevant
impact of specifying any particular area as critical habitat.
Furthermore, the Service is under an order from the U.S. District Court
for the District of Columbia to issue a final rule for critical habitat
by November 1, 2006.
In developing this final rule, we considered whether some areas
should be designated as critical habitat given the issue the commenters
identified about the status of lynx without critical habitat. We took a
closer look at the necessity of designating critical habitat on lands
managed by non-Federal landowners to determine whether current
management was sufficient to conserve lynx. As a result of our
additional analysis, we have excluded additional lands from this final
rule based on the sufficiency of current management and other reasons
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).
3. Comment: Numerous commenters asserted that the designation of
critical habitat results in an increased regulatory burden, increased
landowner costs, and restricted land uses and property rights.
Specifically, many private landowners, particularly private timber
companies, State, and county entities, commented that this designation
would cause them harm economically and delay projects through the
regulatory process.
Our response: We have excluded all non-Federal lands from the final
designation for the reasons described below in the ``Exclusions Under
Section 4(b)(2) of the Act'' discussion, which resolves these concerns.
The designation of critical habitat does not itself result in the
regulation of non-Federal actions on private lands. However, as
discussed in the sections ``Designation of Critical Habitat Provides
Little Additional Protection to Species,'' ``Role of Critical Habitat
in Actual Practice of Administering and Implementing the Act,'' and
``Procedural and Resource Difficulties in Designating Critical
Habitat,'' and other sections of this and other critical habitat
designations, we believe that, in most cases, other conservation
mechanisms provide greater incentives and conservation benefits than
does the designation of critical habitat. These other mechanisms
include the section 4 recovery planning process, section 6 funding to
the States, the section 9 protective prohibitions of unauthorized take,
the section 10 incidental take permit process, and cooperative programs
with private and public landholders and Tribal nations. We note that on
non-Federal lands there often are no Federal actions necessitating
evaluation under section 7 of the Act. The economic issues raised have
been addressed in the economic analysis and have been considered during
the designation process.
4. Comment: Some commenters suggested that the designation will
result in an increased regulatory burden because State or local
governments (such as county land use planning boards) could promulgate
local rules to conserve designated lynx critical habitat.
Our response: We recognize that State and local governments can
promulgate regulations or local rules that may be linked to a critical
habitat designation. This issue will not be a concern because we have
excluded all lands from the final designation except National Parks

[[Page 66012]]

(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below).
5. Comment: Some commenters stated that our comment periods for the
proposed rule, NEPA document, and economic analysis were inadequate to
allow the public to understand and comment meaningfully on the proposed
rule.
Our response: The proposed critical habitat rule for the lynx was
available to the public for review and comment for 90 days (November 9,
2005, to February 7, 2006.) It was reopened on February 16 for an
additional 74 days until April 30, 2006. The amount of time available
for the public to comment on the proposed rule was substantially more
than for most critical habitat proposals, and was the maximum time
practical given the one-year period we had to finalize the rule. The
comment period for the economic analysis and NEPA document was open for
30 days, from September 11 to October 11, 2006. We believe the length
of the comment period was adequate.
6. Comment: Some commenters stated that the Service did not
adequately notify landowners about the proposal or where proposed
critical habitat was located.
Our response: Because of the large scope of the proposed
designation it was not possible to contact each landowner. However, we
issued a widely-disseminated news release regarding our proposal, and
published legal notices in major newspapers in areas involved in the
proposal. We published Federal Register notices, including the critical
habitat proposal, reopening of the comment period, and the notice of
availability of draft documents. We sent hundreds of letters, cards,
and e-mails to State and Federal agencies, tribal governments, local
governments, private individuals, private companies, non-government
organizations, and elected officials announcing the proposal, document
availability, and public meetings and hearings. We also issued press
releases concurrent with Federal Register notice announcements. A Web
page of lynx critical habitat materials and information has been
maintained at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm.
Public hearings, open houses, and meetings on the

published proposal were held on the following dates and locations:
December 7, 2005, Duluth, MN; December 14, 2005, Orono, ME; January 4,
2006, Helena, MT; January 5, 2006, Great Falls, MT; January 10, 2006,
Kalispell, MT; January 18, 2006, Twisp, WA. In the proposed rule we
provided contact information for four Service Field Offices for anyone
seeking assistance with the proposed critical habitat. Therefore, we
believe that we made a conscientious effort to reach all interested
parties and provide avenues for them to obtain information concerning
our proposal and supporting documents.
We recognize the scale of the maps published in the Federal
Register made it difficult to accurately identify whether particular
parcels of land were included within the proposed designation. However,
the descriptions that begin on page 68313 of the proposed rule
(November 9, 2005; 70 FR 68294) were provided to assist the public in
understanding exactly which lands were proposed as critical habitat.
7. Comment: Many commenters expressed concern that commercial and
recreational activities such as logging, mining, snowmobiling, off-road
vehicles, and downhill skiing, would be prohibited or severely
restricted by a designation of critical habitat.
Our response: This issue is no longer a concern because we have
excluded all lands from the final designation except National Parks
(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below).
All other lands were removed or excluded from the final designation
because of existing conservation commitments or because the benefits of
excluding these areas exceeded the benefits of including the areas (see
Application of Section 3(5)(A) of the Endangered Species Act and
Exclusions Under Section 4(b)(2) of the Act discussions, below).
Section 7(a)(2) of the Act requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or result in the
destruction or adverse modification of critical habitat. If a Federal
agency action, such as an action by the National Park Service (NPS),
may affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with us.
Through this consultation, the action agency ensures that their actions
do not destroy or adversely modify critical habitat. Section 7 of the
Act does not apply to activities on private or other non-Federal lands
where there is not a Federal action that triggers consultation, and
critical habitat designation would not provide any additional
protections under the Act for private or non-Federal activities.
Critical habitat would not prohibit private or commercial activities
from occurring unless they were occurring on the designated National
Park System lands and we determined through a consultation that they
would destroy or adversely modify critical habitat. We think this
outcome would be highly unlikely given that the mission of the NPS
largely prevents private or commercial activities that would result in
major impacts to habitat. All parties--Federal, State, private, and
tribal--are unable to take (e.g., harm, harass, pursue) listed species
under section 9 without the appropriate permit.
8. Comment: Some comments recommended excluding areas where
landowners participate in the Sustainable Forestry Initiative (SFI)
program.
Our response: The SFI program is a condition for membership in the
American Forest and Paper Association. The SFI program is a
comprehensive system of principles, objectives and performance measures
developed by foresters, conservationists and scientists, that combines
the perpetual growing and harvesting of trees with the protection of
wildlife, plants, soil and water quality (American Forest and Paper
Association 2006). The SFI program appears well-intentioned, and can
provide benefits to wildlife, and promotes wildlife conservation. The
SFI program contains a number of principles and objectives that
generally pertain to overall forest health. The objective that is most
pertinent to lynx conservation is ``[t]o manage the quality and
distribution of wildlife habitats and contribute to the conservation of
biological diversity by developing and implementing stand- and
landscape-level measures that promote habitat diversity and the
conservation of forest plants and animals, including aquatic fauna.''
Therefore, participation in the SFI program is partially a basis for
our decision to exclude non-Federal lands managed for commercial
forestry from the designation (see Exclusions Under Section 4(b)(2) of
the Act discussions, below).
9. Comment: Some commenters asserted the designation of critical
habitat constitutes an uncompensated taking of private property and is
therefore illegal.
Our response: This issue is no longer a concern because we have
excluded all lands from the final designation except National Parks
(see Exclusions Under Section 4(b)(2) of the Act discussion below).
Additionally, the mere promulgation of a regulation, like the enactment
of a statute, does not take private property unless the regulation on
its face denies the property owners all economically beneficial or
productive use of their land. Further, in accordance with Executive
Order 12630 (``Government Actions and Interference

[[Page 66013]]

with Constitutionally Protected Private Property Rights''), we have
analyzed the potential takings implications of designating critical
habitat for the lynx in a takings implications assessment. The takings
implications assessment concludes that this designation of critical
habitat for the lynx does not pose significant takings implications
10. Comment: Some commenters asserted that the proposed rule failed
to adequately identify the physical or biological features (primary
constituent element or PCE) essential to the conservation of the lynx.
Some commenters stated the PCE needs to be more narrowly defined. Some
commenters suggested that lynx use a wider variety of forest types than
those described in the PCE or that lynx subsist on prey other than
snowshoe hares. A few commenters claimed that snow is not essential to
the lynx because there is no snow in summer.
Our response: The features essential for the conservation of the
species were determined based on the best scientific data available on
lynx and snowshoe hare ecology. As more thoroughly described in the
``Primary Constituent Element'' section of the proposed rule, starting
on page 68299, we determined the PCE to be (1) Boreal forest landscapes
supporting a mosaic of differing successional forest stages and
containing: (a) presence of snowshoe hares and their preferred habitat
conditions, which include dense understories of young trees or shrubs
tall enough to protrude above the snow; (b) winter snow conditions that
are generally deep and fluffy for extended periods of time; and (c)
sites for denning that have abundant, coarse woody debris, such as
downed trees and root wads. We recognize the value of observable or
measurable standards. Unfortunately, current science is not sufficient
to tell us, for example, the minimum density of snowshoe hares
necessary to support a reproducing lynx population, nor is there
reliable scientific information regarding a specific density or size of
coarse woody debris such that a lynx would select for a den site, nor
the precise snow conditions (such as depth or other properties) that
provide a lynx an advantage over other potential competitors such as
coyote or bobcat. As a result, our description of the PCE is as
specific as the current science will allow.
The best scientific information has demonstrated that lynx are
highly adapted to preying on snowshoe hares and that snowshoe hare
density is the most important factor explaining the persistence of lynx
populations (see 65 FR 16052, March 24, 2000; 68 FR 40076, July 3,
2003; background section of 70 FR 68294, November 9, 2005; Steury and
Murray 2004, p.136). As a result, we determined that habitats
containing the features essential to the conservation of lynx are those
that support snowshoe hares, despite the fact that lynx are known to
prey opportunistically on other small mammals and birds. Lynx
populations are found in habitats that support abundant snowshoe hares.
Such habitats are generally described as boreal forest or cold
temperate forests (Frelich and Reich 1995, p, 325; Agee 2000 pp. 43-
46). Because lynx are capable of traveling long distances, they have
been documented in a variety of habitat types, but habitat types that
are incapable of supporting abundant snowshoe hares are not considered
essential to the conservation of lynx. The commenters are correct that
most of the areas included in the lynx critical habitat designation do
not have snow in summer. Lynx and snowshoe hares are highly evolved to
survive deep and/or fluffy snow, which is why we specified winter snow
conditions as a component of the PCE. The presence of deep, fluffy snow
in the winter gives lynx the competitive advantage over similar-sized
carnivores and is a reliable indicator of the most important habitat
for lynx persistence in the contiguous United States. All of the areas
we are designating as critical habitat have deep, fluffy snow in
winter, and this feature is essential to lynx conservation.
11. Comment: Some commenters stated that many of the lands included
in the proposed designation do not contain the physical and biological
features (PCE) identified as being essential to the conservation of the
lynx. Additional comments asserted the boundaries we used (such as the
4,000-foot (ft) (1,219-meter (m)) elevation contour or highways) were
arbitrary or overly broad.
Our response: The 4,000-ft (1,219-m) elevation contour is used to
delineate the boundary within Glacier National Park west of the
Continental Divide and the boundary within North Cascades National Park
east of the Crest of the Cascade Mountains. As described on page 68299
of the Methods section of the proposed rule (November 9, 2005; 70 FR
68294), the features essential to the conservation of lynx, the
majority of lynx records, the evidence of reproduction, and the boreal
forest types are found above 4,000 ft in these areas.
Based on recently received landscape-scale vegetation maps for the
Northern Rockies and Cascades proposed critical habitat units, we
removed public land survey sections that were primarily unforested from
the designation. We reviewed aerial photos for particular parcels
identified by commenters as not supporting the PCE (such as Minnesota
Power and Cleveland Cliffs in Unit 2), and determined that these
parcels do not support the PCE. On that basis we removed them from the
designation. A 1-mi (1.6-km) buffer along the Lake Superior shoreline
and a 10-mi (16-km) circular buffer around Duluth, MN, were removed
based on aerial photography showing that existing development in Unit 2
is concentrated in these areas (Industrial Economics, Incorporated
2006, p. 4-12)., limiting the potential of any lynx habitat
intermingling in these areas
12. Comment: Some commenters recommended that we designate critical
habitat in unoccupied habitat. Others suggested that critical habitat
units should encompass all lynx occurrence records.
Our response: As explained on page 68298 of the proposed rule
(November 9, 2005; 70 FR 68294), the data that define the current and
historical range of the lynx at the time of listing constitute the
geographic area occupied by the species. At the time of listing, we did
not consider any areas within the current or historical range to be
unoccupied because the lynx is highly mobile and survey information was
spotty and incomplete. We considered critical habitat in areas that
have the highest likelihood of supporting reproducing populations of
lynx based on: (1) The presence of the PCE; (2) the majority of recent
lynx records; (3) recent evidence of breeding lynx populations; and (4)
direct connectivity with lynx populations in Canada. Many historic
records of lynx occur in areas that do not support extensive boreal
forest and abundant snowshoe hares. No evidence suggests that these
areas ever supported self-sustaining populations of lynx in the past
100 years (e.g., Oregon) (Aubry 2006, p.2). Pursuant to section 3(5)(A)
of the Act, critical habitat shall not include the entire geographical
area that can be occupied by the species unless otherwise determined by
the Secretary. We have concluded that not all occupied habitat is
essential to the conservation of the lynx.
13. Comment: Some commenters stated that private lands have few to
no Federal actions requiring consultation under section 7 of the Act,
suggesting little need or benefit of designating critical habitat on
private lands.
Our response: We agree. The fact that Federal actions requiring
consultation under section 7 of the Act occur infrequently on private
lands weighed into our decision to exclude all private

[[Page 66014]]

lands from the designation, including lands managed for commercial
forestry, small landowners, and lands not managed for commercial
forestry because the benefit of excluding these areas exceeded the
benefit of including them (see ``Exclusions Under Section 4(b)(2) of
the Act'' discussion, below). Small land parcels and lands not managed
for commercial forestry have a minor influence on the features
essential to the conservation of lynx because they are small in size
relative to the large landscape required to support lynx, particularly
compared to the important role and large scale of National Forest lands
and lands managed for commercial forestry.
14. Comment: Some commenters were concerned that critical habitat
designation will create a disincentive for lynx conservation on private
lands because consultation under the Act is triggered when landowners
participate in Federal programs such as conservation easements or
receive Federal funding. Owners of private timber lands said they would
be reluctant to accept Federal funding intended to encourage the
conservation of private forest lands, such as the USFS Forest Legacy
Program, because of the consultation requirement.
Our response: We considered this factor in weighing whether the
benefit of exclusion of lands from critical habitat designation
exceeded the benefit of their inclusion in critical habitat (see
``Exclusions Under Section 4(b)(2) of the Act'' discussion of section
4(b)(2) exclusions below). As a result, we have excluded non-Federal
lands from the final designation. We are obligated to note that Federal
funding for conservation on private lands would still be subject to
section 7 consultation in areas that are occupied by lynx. However,
this requirement has existed since the lynx was listed and is unchanged
by our designation of critical habitat.
15. Comment: Some commenters believe that designation of critical
habitat prior to completion of a lynx recovery plan or other lynx
conservation guidance is premature.
Our response: Section 4(a)(3) of the Act requires that critical
habitat be designated for listed species within a year of listing. The
lynx was listed as a threatened species under the Act in 2000 (March
24, 2000; 65 FR 16052). The designation is made on the basis of the
best scientific data available and after taking into consideration the
economic impact and any other relevant impact of specifying any
particular area as critical habitat. Furthermore, the Service is under
an order from the U.S. District Court for the District of Columbia to
issue a final rule for critical habitat by November 1, 2006. Therefore,
we must proceed with the designation although a recovery plan has not
yet been drafted for the lynx.
16. Comment: Some commenters pointed out that some of the
occurrence data we used to support the proposed critical habitat
designation were based on winter track surveys, particularly from
Maine, although in the proposed rule we said we only used winter track
survey data when confirmed by genetic (DNA) testing.
Our response: We did not include any lands in Maine in the final
designation; therefore, this issue is moot. The pooling of snow track
survey results with other verified evidence of lynx occurrence was an
oversight. However, because of the stringent protocols used in
confirming tracks as lynx and the minimal number of species in the area
with which lynx tracks could be misidentified in Maine (McCollough
2006), we have high confidence in the accuracy of the Maine snow track
data that was incorporated into the data used for the proposed
designation.
17. Comment: Some commenters suggested that better snow information
should have been used to delineate critical habitat boundaries.
Our response: As explained on page 68301 of the proposed rule
(November 9, 2005; 70 FR 68294), snow conditions also determine the
distribution of lynx. However, available scientific information does
not allow us to identify whether a precise snow depth and/or other
quality, such as surface hardness or sinking depth, defines lynx use or
preference. Information on average snow depth is limited to areas with
good coverage by weather stations that record snow depth data. We were
able to use average snow depth maps based on weather station data to
inform our consideration of lands in Maine and Minnesota. However, in
mountainous areas such as the Northern Rockies and Cascades, few
weather stations exist, and local topography strongly influences snow
conditions. Therefore, snow depth maps were not used for the Northern
Rockies or Cascades units, where we relied on lynx occurrence records,
vegetation data, and elevation.
18. Comment: Some commenters suggested the critical habitat units
or the PCEs do not encompass all the areas or features essential to the
conservation of lynx. Specifically mentioned were areas that would
mitigate the effect of climate change on lynx habitat, provide habitat
for dispersing lynx to colonize (such as portions of New Hampshire, New
York, North Dakota, Wyoming, Utah, Washington, and Oregon), or lynx
travel corridors both within the United States and between the United
States and Canada.
Our response: The PCE and the areas proposed as critical habitat
represent the features essential to the conservation of lynx. The Act
states at section 3(5)(A), that except in particular circumstances
determined by the Secretary, critical habitat shall not include the
entire geographical area which can be occupied by the threatened or
endangered species. It is not the intent of the Act to designate
critical habitat for every population and every documented historical
location of a species. As described on page 68299 of the proposed rule
(November 9, 2005; 70 FR 68294), the areas proposed as critical habitat
serve a variety of functions, including providing habitat that may
serve as travel corridors to facilitate dispersal and exploratory
movements. At this time the biological or physical features of habitats
lynx choose for travel or colonization is not well-understood. The
extent that climate change might affect lynx habitat is not known, nor
do we know if any areas within the contiguous United States would
mitigate for habitat changes due to climate change. Therefore, we did
not have sufficient data to accurately delineate areas in the
contiguous United States that might provide travel, serve as sites for
colonization or corridors, or mitigate for climate change.
19. Comment: Many commenters assert that the presence of lynx
demonstrates that present and past timber management practices (i.e.,
those that started around 20 years ago and continue today) have created
the current habitat conditions that are good for lynx; therefore,
critical habitat should not be designated on such lands.
Our response: We agree and for this reason, in addition to others,
we have excluded all non-federal lands managed for commercial forestry
from the designation (see Exclusions Under Section 4(b)(2) of the Act
discussion, below).
20. Comment: Washington State Department of Natural Resources
requested that their lands be removed from the designation because the
agency has implemented a Lynx Habitat Management Plan since 1996 that
has been effective in the conservation of lynx habitat and updated the
Habitat Management Plan in 2006 to include modifications to avoid the
incidental take of lynx.
Our response: We determined that Washington State Department of
Natural Resources lands should be removed

[[Page 66015]]

from the critical habitat because Washington DNR's plan provides
sufficient management so that special management or protection is not
required and thus the identified lands do not meet the definition of
critical habitat. First, the plan is complete: The original plan was
completed in 1996, updates and modifications to the plan were completed
in 2006. Second, the plan provides specific provisions for lynx
foraging (snowshoe hare) habitat and denning habitat on a landscape
scale based on the best available science on lynx and snowshoe hare
ecology. Third, the plan has been implemented since 1996. The Service
found that implementation of the 1996 plan will maintain the function
of the landscape and its capability to support lynx reproduction and
was not likely to result in mortality or injury to lynx through
significant impairment of breeding, feeding or sheltering or other
essential behaviors (Martin 2002). Finally, implementation and
effectiveness monitoring reports are provided and are incorporated into
the 2006 plan. This issue is discussed in more detail in Exclusions
Under Section 4(b)(2) of the Act, below.
21. Comment: Montana Department of Natural Resources and
Conservation requested that Montana State Trust Lands be excluded from
designation because of Montana Department of Natural Resources and
Conservation's pending Habitat Conservation Plan that will specifically
address lynx conservation.
Our response: We determined that Montana State Trust Lands should
be excluded from the designation of critical habitat because the
benefits of excluding these lands covered by the pending HCP outweigh
the benefits of including them in the designation (see Exclusions Under
Section 4(b)(2) of the Act, below). The Lynx Conservation Strategy
portion of the pending HCP has undergone public review pursuant to
State law and provides for the PCE in that it will provide multistoried
boreal forest stands, foraging habitat (i.e., snowshoe hare habitat),
lynx denning habitat, and protection for known den sites.
22. Comment: Tribes submitted comments requesting their lands be
excluded from the designation. We received other comments opposing the
exclusion of tribal lands from the designation.
Our response: In accordance with Secretarial Order 3206, ``American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); 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 relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Such designation is often viewed by
tribes as an unwanted intrusion into tribal self governance, thus
compromising the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of threatened and endangered species populations
depend.
We contacted all tribes potentially affected by the proposed
designation and met with some of them to discuss their ongoing or
future management strategies for lynx. Several tribes subsequently
submitted letters requesting exclusion based on their sovereign rights
and concerns about the economic impact and affects on their ability to
manage natural resources. As described on page 68310 of the proposed
rule, we have determined that conservation of lynx can be achieved off
tribal lands within the critical habitat units and/or with the
cooperation of tribes. The tribal lands included in the proposed
designation are found only in the Maine and Minnesota units and the
size of the areas are relatively small (approximately 223 and 192
km\2\, respectively [86 and 74 mi\2\]). Therefore, these tribal lands
are excluded from final designation as critical habitat pursuant to
section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the
Act discussion, below).
23. Comment: Some commenters are concerned the designation provides
a mechanism for increased third party litigation.
Our response: We have designated critical habitat for the lynx
based upon the statutory obligations and definitions pursuant to
sections 3 and 4 of the Act after taking into consideration the best
available scientific and commercial information. Further, we have
finalized our designation for lynx critical habitat following an
evaluation of all conservation measures and partnerships, economics,
and other relevant factors and subsequently weighing the benefits of
inclusion against the benefits of exclusion pursuant to section 4(b)(2)
of the Act. Thus, we believe that we have proposed and designated
critical habitat according to the provisions of the Act and our
implementing regulations. However, the final designation can be subject
to litigation and those affected by the designation may also be
vulnerable to third-party litigation if determined not to be in
compliance with the provisions and protection of the regulation.
24. Comment: Some commenters believe that the analysis for
justifying removing USFS lands from the designation was inadequate.
Our response: We have noted the comment and provide an expanded
discussion in Application of Section 3(5)(A) of the Act, below. We have
concluded that the conservation agreement, proposed plan amendments,
and existing LRMPs that include lynx conservation provide sufficient
special management for lynx.
25. Comment: Some commenters believe that because USFS lands are
being managed for lynx under the Conservation Agreement, the lands
require special management and, therefore, should not be removed from
the designation under section 3(5)(A). Additionally, commenters suggest
that removal of USFS lands from the designation violates Center for
Biological Diversity v. Norton (2003).
Our response: Under the definition of critical habitat, an area
must be both essential to a species' conservation and require ``special
management considerations or protections.'' Our interpretation is that
special management or protections are not required if adequate
management or protections are already in place. Adequate special
management or protection is provided by a plan or agreement that
addresses the maintenance and improvement of the primary constituent
element for the species and manages for the long-term conservation of
the species (see Application of Section 3(5)(A) of the Act, below). In
our final designation, we analyzed whether the lands containing the
features essential to the conservation of lynx required special
management above and beyond what was currently being implemented.
Because the USFS's current lynx management conserves lynx, we did not
include any USFS lands in the final designation.
26. Comment: Removing Federal lands from the designation unfairly
and disproportionately places the burden of lynx conservation on non-
federal landowners.
Our response: We have excluded all non-federal lands from the final
designation for the reasons described below in the Exclusions Under
Section 4(b)(2) of the Act discussion, which resolves these concerns.

[[Page 66016]]

27. Comment: Voluntary, non-regulatory, cooperative conservation
strategies would provide more effective lynx conservation than the
critical habitat designation.
Our response: In general, we agree with this comment. We responded
to this comment by weighing the benefits of exclusion against the
benefit of inclusion pursuant to 4(b)(2) of the Act. The benefits of
non-regulatory conservation on private, state, and county lands were
factored into our decision not to include such lands in the final
designation. See Exclusions Under Section 4(b)(2) of the Act discussion
below for a complete discussion.
28. Comment: Designation of critical habitat would be harmful to
lynx conservation because the regulation will make current land use
(e.g., logging) unprofitable, causing landowners to sell to developers
and resulting in a loss of lynx habitat.
Our response: Our decision to include only National Park Service
lands in the final designation resolves these concerns. No logging
occurs within NPS lands. It is relevant to note, however, that our
economic analysis did not indicate logging would be made unprofitable
by the designation of lynx critical habitat. The cost of the
designation on timber lands was relatively small on a per-acre basis.
Thus, the exclusion of these areas in the final designation was not due
to economic impacts. Please refer to our draft and final economic
analyses for further detail concerning our estimate of potential
economic impacts resulting from the proposed and this final
designation.
29. Comment: Lands covered by Plum Creek Timber Company's Native
Fish Habitat Conservation Plan should be excluded from the designation
because the plan conserves riparian zones that function as snowshoe
hare habitat, lynx denning habitat, and lynx travel corridors.
Our response: Plum Creek lands are not included in the final
designation in part because the company has demonstrated it is a
willing partner in fish and wildlife conservation efforts, such as the
Native Fish Habitat Conservation Plan, which provides some ancillary
benefits to lynx, as described below in the Exclusions Under Section
4(b)(2) of the Act discussion, which resolves this concern. We believe
partnerships are essential for the conservation and recovery of lynx.
30. Comment: Private lands in Montana covered by the Swan Valley
Grizzly Bear Conservation Agreement should be excluded from the
designation.
Our response: Private lands in Montana are not included in the
final designation for the reasons described below in the Exclusions
Under Section 4(b)(2) of the Act discussion, which resolves this
concern. We believe that preserving cooperative partnerships such as
demonstrated with the Swan Valley Grizzly Bear Agreement, which
provides some ancillary benefits to lynx, is essential for the
conservation and recovery of lynx.
31. Comment: Dense forests required by lynx and snowshoe hares
increases the risk of wildfires.
Our response: Wildfire is not thought to be a threat to lynx, and
often results in beneficial effects when burned areas regenerate into
good lynx foraging habitat. The designation of critical habitat will
not prohibit protection of defensible space around homes or the
wildland-urban interface. As described in the final rule listing the
lynx, natural fire plays an important role in creating the mosaic of
vegetation patterns, forest stand ages, and structure that provide good
lynx and snowshoe hare habitat, particularly in the western Great Lakes
region and in the western mountain ranges of the United States (Agee
2000, pp. 47-56). The final designation includes only National Parks.
The National Park Service manages wildfire risk in accordance with the
National Fire Plan. We routinely coordinate with NPS on fire projects
that may affect listed species pursuant to section 7 of the Act.
Typically, NPS fire management projects do not result in adverse
effects to lynx. We anticipate that future projects are unlikely to
adversely modify its critical habitat.
32. Comment: Some commenters questioned the adequacy of the
Environmental Assessment (EA) and other aspects of our compliance with
NEPA. They believe the Service should prepare an Environmental Impact
Statement (EIS) on this action.
Our Response: An EIS is required only in instances where a proposed
Federal action is expected to have a significant impact on the human
environment. In order to determine whether designation of critical
habitat would have such an effect, we prepared an EA of the effects of
the proposed designation. We published a Notice of the Availability of
the draft EA for public comment on September 11, 2006 (71 FR 53355).
Following consideration of public comments, we prepared a final EA and
determined that critical habitat designation does not constitute a
major Federal action having a significant impact on the human
environment. That determination is documented in our Finding of No
Significant Impact (FONSI). Both the final EA and FONSI are available
on our Web site (see ADDRESSES section).
33. Comment: Commenters believe that designating State School Trust
lands as critical habitat will harm schools and school children because
the lands will not be able to be used to fund the School Trust.
Our response: We have excluded all State lands from the final
critical habitat designation for the reasons described below in the
Exclusions Under Section 4(b)(2) of the Act discussion, which resolves
this concern.
34. Comment: Some commenters were concerned that the Maine Forest
Practices Act (MFPA), which regulates forestry in Maine, is not
adequate to provide for the habitat requirements of lynx and,
therefore, compliance with the Act should not be a basis for excluding
lands from the critical habitat designation.
Our response: We have previously recognized that the shift away
from clear-cutting towards partial cutting in Maine creates uncertainty
as to the long-range suitability of habitat for lynx. This shift is in
large part a result of implementation of the Maine Forest Practices Act
(MFPA) starting in 1989 when it was enacted. In our 2003 Remanded
Determination regarding the listing of the lynx as a threatened
species, we noted that ``if harvest practices cease to provide early
successional forest with dense understories or stand-replacing
disturbances (such as provided by a large clear-cut) in proportions
similar to historic conditions, habitat conditions for snow shoe hares
and lynx will be diminished.'' 68 FR 40076, 40094 (July 3, 2003)
(emphasis added). In that notice, we also stated that ``at this time,
we do not know if future timber harvest practices will continue to
provide forest conditions that are capable of supporting snowshoe hare
densities that can, in turn, support a resident lynx population.'' Id.
Our 2005 Lynx Recovery Outline also acknowledges this uncertainty:
``harvest management in Maine has shifted away from clear-cutting and
now favors partial cutting, which in some situations, may result in
less favorable conditions for snowshoe hare and lynx.'' Recovery
Outline, p.9 (emphasis added).
We agree that this uncertainty remains. As we have previously
noted, lynx preference for regenerating clear-cuts has been well-
documented by analyses at landscape- and stand-level scales (Hoving et
al. 2004, pp. 291-292; Fuller 2006, p. 31; Robinson 2006, pp.

[[Page 66017]]

119-129). Maine lynx habitat models document that lynx avoid partial
harvest stands (Hoving et al. 2004, p. 292) or that partial harvested
areas are not statistically associated with lynx occurrence at home
range and landscape scales (Robinson 2006, pp.122-123). Furthermore,
partial harvest stands support substantially lower snowshoe hare
densities than regenerating clearcuts (Robinson 2006, p. 9), with many
stands below a threshold of 1.1 hares/ha believed necessary to support
a lynx population (Steury and Murray 2004, p. 137). But, at least one
Maine study suggests that, under certain circumstances, lynx may prefer
partially-harvested stands (Fuller 2006, p. 31). We recognize that this
study, as with most, has certain limitations, but it does represent a
somewhat different conclusion than previous studies about the
suitability for lynx of various habitats created through forest
management in Maine.
But, long-range habitat suitability in Maine also depends on the
distribution, amount, and longevity of habitats created through forest
management. Thus another critical question is whether the mosaic
created by clear-cutting, which is anticipated to last another 10-15
years, may be replaced over time by across the landscape by other
practices.
Neither the MFPA nor its regulations provide prescriptions for age
class, distribution of forest, or coarse woody debris. It is important
to note that although the MFPA regulates clear-cutting it does not
eliminate this practice altogether as some have suggested in their
comments. The MFPA allows for the possibility of large clear-cuts (up
to 400 acres) so long as such harvesting is accompanied by proper
documentation and permits. In 1989, clear-cuts accounted for 45% of the
land area harvested and partial harvests 55% (Maine Forest Service
1995, summary statistics). In 1999, clear-cuts accounted for only 3%,
whereas partial harvests accounted for 96% (Maine Forest Service 2000,
summary statistics). This new silvicultural paradigm has landscape
level implications for lynx because larger areas must be logged to
supply mills with an equivalent volume of wood. The annual number of
acres that is partially harvested has increased 21% from 398,743 acres
in 1993 to 481,153 acres in 2004 (Maine Forest Service 2005, summary
statistics). As currently implemented, MFPA is adequately providing for
the habitat requirements of lynx.
Partnerships will be essential in resolving both these scientific
as well as management uncertainties, especially given that the majority
of lynx habitat and occurrences occur on private lands managed for
commercial forestry in Maine. Agreements and commitments with private
landowners to allow access to lands, provide research capabilities and
funding, map habitat and correlate it to past and existing forest
management practices is necessary to address and reconcile
uncertainties about which type and distribution of habitats lynx
prefer. Because the amount and quality lynx habitat may ultimately
depend on the types and locations of harvesting that are pursued under
the MFPA, maintaining working relationships with the commercial timber
industry is important, this is especially so because commercial timber
operations in Maine typically do not involve Federal actions that would
trigger consultation under Section 7 of the Act.
35. Comment: Some commenters are concerned that certification
programs and voluntary agreements were not working well on corporate
forestlands in Maine and Montana and, therefore, should not be a basis
for excluding such lands from the final critical habitat designation.
Specific information was provided about Maine Department of Inland
Fisheries and Wildlife's (MDIFW) concern about Plum Creek's reluctance
to abide by voluntary, cooperative deer wintering area agreements that
were negotiated with the previous owner. Commenters asserted that Plum
Creek's land management in Montana includes activities that may
threaten lynx, such as precommercial thinning that decreases the
quality of snowshoe hare habitat; and divesting of its land holdings,
which may then be developed.
Our response: Several corporate forest landowners in Maine,
including Plum Creek, have voluntary agreements with MDIFW to manage
deer wintering habitat. These agreements enable the state to work in
partnership with forest industry to manage for deer wintering habitat.
Given the significant turnover in corporate forest land ownership in
Maine in the last 15 years, agreements with previous companies need to
be renegotiated with the new owners. New landowners sometimes do not
honor the agreements made by previous landowners and cut in deer
wintering areas. Deer wintering areas are large areas of mature
softwood, usually in riparian areas. Although these are boreal
habitats, they generally do not provide quality habitat for snowshoe
hares or lynx. Lynx in Maine prefer young, regenerating softwood
stands. Cutting deer wintering habitat may have created lynx habitat.
The lynx forest management strategy offered by the Maine Forest
Products Council applies to about 400 member landowners that comprise
about 84% of the proposed Maine Unit of the critical habitat. The lynx
management specified in the strategy applies to current and future
landowners. Thus, as landowners change, there is a good probability
that the lynx strategy will apply to future corporate forestry
landowners.
Section 7 of the Act only applies to activities on private lands
where there is a Federal action that triggers consultation; critical
habitat designation would not provide any additional protections under
the Act to address activities on private lands that do not involve a
Federal action. We weighed the benefits of exclusion against the
benefit of inclusion pursuant to section 4(b)(2) of the Act. The
benefits of preserving effective partnerships with private landowners
and encouraging non-regulatory conservation on private lands managed
for commercial forestry factored into our decision to exclude such
lands. Specifically, Plum Creek has demonstrated it is a willing and
effective partner in various fish and wildlife conservation efforts; it
contributes funding for lynx research and allows research to occur on
its properties, as well as managing habitat that supports lynx and
other species, both protected and unprotected. See Exclusions Under
Section 4(b)(2) of the Act discussion below for a complete discussion
of specific exclusions.

Comments on Economic Issues

General Comments on Methodology and Scope

1. Comment: Cook County commented that the draft economic analysis
(DEA) does not include a breakdown of economic impacts by county.
Similarly, Lutsen-Tolfte Tourism Association and Lutsen Mountains Ski
resort suggested that the Service should separately analyze the
developed portion of Cook County in Northeastern Minnesota, as it
comprises the majority of the existing development and industry in the
County.
Our response: As described in Section 2.1, an economic analysis of
this type must make a determination of the geographic level at which to
present results. In this case, the DEA provides economic impacts at the
subunit level, which is defined by landowner type (e.g., private
timberlands, State lands, etc.). Landowner type was selected as the
geographic scale of the analysis, as impacts across land use types were
expected to be more homogenous than across political boundaries, such
as

[[Page 66018]]

cities or counties. Impacts of lynx conservation on Cook County lands
are, therefore, summarized according to the subunits that intersect
Cook County in Unit 2. These are the Superior National Forest, Unknown
Private Landowner, MN Department of Natural Resources, Private Mining
Company Lands, and Tribal Lands subunits.
2. Comment: One comment stated that the DEA refers to a ``one mile
buffer along the coast of Lake Superior'' as being excluded from the
economic analysis. The commenter requests clarification regarding the
actual delineation of critical habitat as Section 4(b)(2) of the Act
requires economic analysis of areas proposed to be included in the
designation, and thus including the 1-mile buffer as critical habitat
without analyzing the economic data would be a violation of the Act.
Our response: The DEA does not refer to the 1-mile buffer
surrounding Lake Superior as being excluded from the economic analysis.
These areas were explicitly considered in the DEA as described in
Section 4.3.2.
3. Comment: One commenter stated that the DEA should include the
direct cost to the private sector and Federal agencies of dealing with
critical habitat through interactions with Federal agencies regarding
permits or sales. This commenter also stated that the DEA should
consider the indirect costs of dealing with project delays and the
legal costs associated with critical habitat designation that accrue to
both the public and private sector.
Our response: Appendix A of the DEA quantifies the administrative
costs to public and private entities of section 7 consultations, a
direct impact of critical habitat designation. These impacts of
complying with section 7 of the Act are included in the total economic
impact estimates provided in the DEA. The DEA also considers the impact
of project delays. For example, the analysis quantifies construction of
new roads to access timber or mining projects to avoid delays
associated with lynx conservation concerns.
4. Comment: One comment highlighted that the DEA does not quantify
impacts to mines, development, and grazing in the area. Another comment
questioned why the DEA presents the full value estimates for
development and mining.
Our response: Since the publication of the DEA, a supplemental
analysis of impacts to development was undertaken and will be
incorporated in the Final Economic Analysis (Final EA). As described in
Section 6.5 of the DEA, absent information regarding how or whether
grazing activities may be impacted by lynx conservation, the DEA
provides information on the geographic areas grazed and the full value
of the grazing within the study area. While not an impact estimate,
this information is useful for decision making by identifying the
distribution of grazing activity across the study area. Section 8 of
the economic analysis does quantify impacts to mining activities.
5. Comment: Plum Creek Timber Company, Inc. commented that the DEA
does not consider that an acre of land may have both timber and
potentially substantial future additional value, and thus the DEA
underestimates the potential value at risk associated with critical
habitat designation. The comment further stated that all of Plum
Creek's lands have some future value (including recreation,
conservation, and higher and better uses) in addition to current use
values, regardless of Plum Creek's ultimate use of the land. The
assumption that an acre of land is primarily used for one use
(rendering the value of secondary uses negligible), therefore,
underestimates the total acreage at risk of losing value.
Our response: The DEA does not assume that the primary land use of
an acre is its only value, or that other components of the total value
are negligible. Rather, the DEA recognizes that the value of an acre
encompasses the value of all of its foreseeable future uses. The DEA
uses existing zoning and land use information to identify acres that
are expected to have a value associated with the option for future
development. For land parcels for which the only foreseeable future use
is timber (based on available data), however, the potential of that
parcel to be developed is unknown within the timeframe of the analysis,
and, therefore, the parcel does not have an estimated development
option value in the DEA. This characterizes the majority of the Plum
Creek lands in both Maine and Montana. Communication with land value
appraisers in Montana confirmed that the appraised value of parcels for
which timber management is the only current and known future use do not
include a measurable value associated with the option for future
development. To the extent that these lands may be developed in the
future absent lynx conservation, the DEA underestimates impacts related
to development on these parcels.
6. Comment: Defenders of Wildlife commented that the DEA omits
assessment of benefits from increased direct uses including welfare
gains for participants in non-motorized recreation activities that
benefit from restrictions on snowmobiling, or avoided loss of scenic
beauty for recreationists due to prevented destruction of habitat for
development.
Our response: As discussed in Section 1.2.4 of the DEA, these types
of benefits are considered in the analysis. However, similar to the
calculation of benefits related to viewing lynx, information regarding
the number of non-snowmobilers recreating in the area is not readily
available, and the extent to which lynx-related restrictions increases
enjoyment of non-motorized recreation due to reduced noise pollution,
or increases the scenic beauty of the study area, is unknown.
7. Comment: Defenders of Wildlife stated that the DEA violates its
own study parameters in order to incorporate project costs that occur
beyond the 20-year timeframe of the analysis. In particular, the
commenter notes that pre-commercial thinning impacts would change from
a net cost to a net benefit if the DEA respected its own temporal
boundaries of analysis.
Our response: As stated in Section 1.3, the DEA forecasts impacts
to activities that are considered ``reasonably foreseeable.'' Where
information is available to reliably forecast economic activity beyond
the 20-year timeframe, this analysis incorporates that information. For
timber management, silvicultural planning typically occurs over a long
time horizon (e.g., 100 years). The DEA, therefore, forecasts impacts
to activities in the timber industry accordingly. Reporting only the
first 20 years of impacts of restrictions on precommercial thinning
would result in the reporting of a net benefit of these restrictions,
as the costs of these restrictions are experienced at the time of
harvest (e.g., reduced yield). Reporting a net benefit or precluding
precommercial thinning from the analysis would be misleading, however,
as precommercial thinning would not likely be undertaken if it did not
offer a long-term benefit to landowners.
8. Comment: Pingree Associates, Inc., commented that the DEA was
prepared based on substandard information with no peer review and that
there was no adherence to any appraisal standards in determining values
of forestlands.
Our response: The DEA applies the best available information, and
was peer-reviewed by forest economists from both Maine and Montana. As
described in Section 4 and Appendix D, the land appraisal information
applied in the DEA is from recent appraisals by the Maine Revenue
Service. This information is used by the Land Use Regulatory Commission
in Maine, and was cross-checked with a number of

[[Page 66019]]

stakeholders, including the University of Maine and the Maine
Department of Inland Fisheries and Wildlife.

Comments on Timber Analysis

9. Comment: A comment provided by Maine Audubon asserted that the
DEA overestimates the number of acres likely to be precommercially
thinned. The DEA estimates that over a 100-year period, 6.1 million
acres will be precommercially thinned; Maine Audubon estimates that
this should be closer to 2.1 million acres. The comment further states
that timber impacts in Maine should be estimated over a 30-year
projection, rather than 100 years due to the short tenure of most
timberland ownerships.
Our response: The DEA applied the best available information
regarding the potential impact of precluding precommercial thinning in
Maine. The estimates are based on previously conducted modeling by the
University of Maine Cooperative Forestry Research Unit as described in
Section 3 and Appendix D. Results applied in the DEA from the existing
model are estimated benefits of precommercial thinning on a per-acre
basis for the entire State of Maine over a 100-year timeframe, based on
the recent, observed level of precommercial thinning. The application
of this model to the DEA was reviewed and considered reasonable by
multiple stakeholders and peer reviewers. Further, the tenure of a
landowner is not relevant to the timeframe of the analysis, as the
impacts estimated are not specific to current landowners, but to land
parcels.
10. Comment: The Montana Wood Products Association commented that
the assumption in the DEA that there is no market for precommercially
thinned material is incorrect. In Montana existing facilities that
function on residuals from timber harvesting would be impacted by
restrictions on precommercial thinning. This comment further stated
that the assumption that future stumpage prices will be comparable to
past prices is unfounded.
Our response: As described in Section 3.2 of the DEA, Scenario 2 of
timber analysis assumes that no ready market exists for slash from
precommercial thinning. To the extent that a market for this residual
does exist within the study area, the DEA acknowledges in Exhibit 3-7
and on page 3-9 that timber impacts could be underestimated. An
increase in biomass energy production would create demand and provide a
market for residuals from precommercial thinning. This comment suggests
that the market for residuals from precommercial thinning exists in
certain areas of the proposed critical habitat. As timber harvests
would not be precluded under any of the scenarios considered in the
DEA, it is unlikely that this market would be completely eliminated,
however, as there would still be residual material from harvests
available for these facilities.
11. Comment: One comment highlighted that Exhibit 3-7 of the DEA
states that differences in quality between thinned and unthinned stands
are not taken into consideration, and noted that precommercial thinning
would not be undertaken if it had no purpose.
Our response: Following discussions with a variety of timberland
stakeholders, the DEA timber analysis focused on the benefits in
quantity and timing of the harvest resulting from precommercial
thinning rather than the potential increases in quality of the wood
harvested. Benefits related to an increased quality are highly
dependent on the initial quality of the stand, which was unknown across
the study area. To the extent that restricting precommercial thinning
leads to decreased quality of wood harvested from a stand, the analysis
may underestimate impacts, as noted in Exhibit 3-7.
12. Comment: One commenter noted that the impacts cited in the
Section 3 did not match those in the Executive Summary, and were
significantly higher.
Our response: The figure of $808 million referred to in the Key
Findings for the Timber analysis in page ES-3 of the DEA was a rounding
error and has been corrected to show $809 million. Other timber
analysis results cited in the Executive Summary are correct and match
those in Section 3.
13. Comment: Maine Forest Products Council asserted that the full
value of timberland estimated for Maine was understated because the
$300/per acre value applied did not account for the entire ``timber
capital value.'' The commenter stated that many timberland transactions
have occurred that have exceeded those values.
Our response: As described in Appendix D of the DEA, the average
per-acre timber value of $300 applied in the DEA for Maine represents
the value of land as a silvicultural input, which generally reflects
the present value of the standing timber. This estimate is based on
information regarding appraised value of lands where timber is the only
use. This value represented an average value, thus, it is likely that
there have been transactions exceeding this value. The $300-per-acre
average value was confirmed with a number of stakeholders and peer
reviewers.
14. Comment: One commenter expressed concern that the DEA does not
consider the broader economic impacts that stem from the effect
critical habitat designation could have on the overall strength of the
forest products industry in Maine and its global competitiveness.
Our response: The DEA provides information on the full value of the
timberland within the study area, as well as information regarding the
potential impacts to the timber industry under two scenarios, one with
restrictions on precommercial thinning, and one without. As described
in Section 3.2 of the DEA, under Scenario 1, no impacts to the quantity
of timber harvested on private lands is forecast, while under Scenario
2, impacts to timber harvest quantity are forecast in the future as a
result of restrictions on precommercial thinning practices. The full
value of the timberland in Maine is presented along with the impact of
lynx conservation on the timber resource to provide context to the
impact estimate, and its relative effect on the regional timber
industry.
15. Comment: The Maine Forest Products Council commented that the
DEA does not address the impact of the designation on spruce
plantations. Additionally, the commenter is concerned that the report
does not address the potential for a future spruce budworm outbreak and
the impact the designation could have on the ability of the State and
its timberland owners to deal with the next outbreak.
Our response: The analysis of impacts to the timber industry did
not focus on impacts to plantations as this was not the focus of the
timber-related conservation guidelines described in the LCAS. As
discussed in Section 1.4 of the DEA, the LCAS is considered by the
Service to be the best information available regarding conservation
measures for the lynx. The DEA assumes that, absent more specific
information, public and private landowners across the proposed critical
habitat will use the LCAS as a model for lynx conservation needs. To
the extent that limiting precommercial thinning can multiply the impact
of an upcoming spruce-budworm epidemic, the analysis may have
underestimated impacts to the timber industry. No models are available,
however, to link restrictions on precommercial thinning with increased
probability or severity of spruce budworm outbreaks.
16. Comment: One comment stated that the DEA does not address the
impact of changes in wood supply

[[Page 66020]]

within the study area on industry located outside the study area.
Our response: Scenario 2 of the timber analysis in the DEA
quantifies impacts to future timber harvest resulting from a
restriction on precommercial thinning practices. The DEA does not make
any assumptions about where the harvested timber is delivered, within
or outside of the proposed critical habitat, but instead focuses on the
estimated decreased value of a timber stand to the landowner as a
result of restrictions on precommercial thinning. Any impacts to mills
associated with a decreased supply of timber as a result of
precommercial thinning restrictions would occur at the time of harvest,
which may be 60 to 100 years (depending on harvest rotation schedules)
from the time the restrictions on thinning are implemented. Further,
while Section D.1.2 of the DEA states that the best available
information indicates that approximately 1 percent of the timber lands
are precommercially thinned per year, information is not readily
available describing which particular parcels would be thinned in a
given year, or which specific mills (within or outside of the study
area) rely on those particular stands.
17. Comment: Comments from Pingree Associates, Inc., and the
American Forest and Paper Association (AFPA) stated that limiting the
discussion on forest management impacts to precommercial thinning
restrictions is inadequate and misleading. Pingree Associates asserted
that, from past experience with critical habitats for other species, a
high probability exists that designation of critical habitat will
require additional set-asides and lead to restrictions on commercial
thinning and harvesting. AFPA cited the Washington State Department of
Natural Resources standards, which they believe, if applied across the
critical habitat, would result in a greatly increased calculation of
economic impact.
Our response: The DEA applies information from the LCAS regarding
the types of habitat-related conservation measures that may be
requested to benefit the lynx. Information in the LCAS and from review
of past consultations does not indicate that additional set-asides or
restrictions on commercial thinning will be recommended for the benefit
of the lynx. While the WADNR standards are similar to the LCAS, the
LCAS has been applied to a broader geographic area.
18. Comment: The American Forest and Paper Association (AFPA)
argues that using full value of timberlands shown in Exhibit 3-2 in the
DEA would provide a more appropriate `high impact' benchmark for
measuring and weighing the benefits and economic impacts of the
critical habitat designation.
Our response: The DEA does not consider the full values of
designated timberland to be a valid estimate of impacts of lynx
habitat-related conservation, as there is no basis to assume this full
value could be lost due to the proposed critical habitat. Rather, the
DEA is based on information contained in the LCAS about how timber
activities would be expected to change under the proposed critical
habitat designation as described in Section 3.2.
19. Comment: The Montana Wood Products Association stated the
assumption that future stumpage prices will be comparable to past
prices is unfounded. Similarly, the American Forest and Paper
Association stated that rising stumpage prices resulting from
restrictions in timber management may also place in jeopardy portions
of the pulp and paper industry or solid wood products industry in the
affected States.
Our response: As stated in Exhibit 3-7, the DEA made the
simplifying assumption that future stumpage prices would be similar to
past stumpage prices. Specifically, the analysis utilized the most
recent information available (from 2005) for stumpage prices for
Minnesota and Montana, and relied on analyses provided by the
University of Maine, Idaho Department of Lands, and Washington State
Department of Natural Resources for impacts in those areas. This
assumption and impact analysis method was peer reviewed by forest
economists in both Maine and Montana.
20. Comment: F.H. Stoltze Land and Lumber Company commented that it
is a small family-owned business that is directly affected by the
critical habitat through purchase of USFS sales, Special Use Permits
for access and radio towers, contract road maintenance, and
participation in stewardship contracts, and that none of these issues
are considered in the DEA. The commenter further stated that the
estimated $652 per acre of timberland in Western Montana is not the
appropriate market value and that the DEA underestimates that value of
thinning and returns to forest landowners. F.H. Stoltze Land and Lumber
Company also commented that the DEA does not reflect the use of
fertilization, which is also used on Stoltze lands. The commenter
further states that studies have shown they can achieve a 50 to 60
percent increase in growth rates by using the 20-foot spacing and
fertilization and that these lost revenues and costs should be
considered in the economic analysis.
Our response: Impacts related to special use permits and road
maintenance on Federal lands were considered in Section 3 of the DEA.
The estimated per-acre value is an average; thus, it is not surprising
that some sales of specific lands will be well above this average due
to factors such as location, access and quality. Also, as discussed in
Section 1.4 of the DEA, the DEA assumes that the LCAS is the best
information available regarding conservation measures for the lynx and
the LCAS does not suggest any habitat-related conservation measures
related to the use of fertilizers; thus no impacts to fertilization
activities are expected. Stoltze lands are excluded from critical
habitat in the final designation for biological reasons.

Comments on Development Analysis

21. Comment: One commenter stated that because the DEA relies on
existing zoning status, it underestimates the amount of land in Maine
that may be subject to development as future changes in zoning may
occur.
Our response: Section 4.2 of the DEA highlights that, while the
analysis does not account for potential changes in future zoning across
the study area, the relatively rural character of the area does not
suggest that significant levels of re-zoning will be necessary to
accommodate the existing development pressure. To the extent that
development pressure increases in this region and rezoning occurs,
however, the DEA will underestimate the number of developable acres in
the study area in Maine.
22. Comment: Maine Audubon commented that the DEA calculates
revenues likely to be lost if no development is allowed on lands
currently zoned for development in Maine. The comment argued that this
assumes that there is no silvicultural value of those lands, and that
no development will be allowed under the designation, and these are
unlikely assumptions.
Our response: The DEA does not calculate lost revenues as a result
of restrictions on development, but rather reduced value of land as a
result of precluding the option to develop. Further, the DEA does
assume that silviculture is a potential use of these lands and,
therefore, if development is precluded, the land retains its
silvicultural value. While the DEA provides information on the full
value of the option to develop the study area, it does so due to lack
of information regarding how development projects

[[Page 66021]]

may be modified for the benefit of the lynx as described in Section 4.2
and does not assume that all development within the study area will be
precluded as a result of lynx conservation.
23. Comment: A comment from Cook County, Minnesota, noted that,
although the DEA provides information on the full value of developable
land in Unit 2 ($1.56 billion), the total economic impacts of lynx
conservation provided is an underestimate of costs because impacts to
the developable lands are not assessed and added.
Our response: The comment correctly highlights that the DEA did not
quantify impacts to potential development activities, but rather
provides the full option value of future development within the study
area. Since the publication of the DEA, a supplemental analysis of
impacts to development was completed by the economists, and will be
incorporated in the Final Economic Analysis (Final EA). The
supplemental development analysis estimated impacts to development in
Unit 2 to be $658 million to $709 million.
24. Comment: Plum Creek Timber Company, Inc., commented that the
DEA should consider conservation easement values as a proxy for future
development value, as development value of timber acres is overlooked
in the DEA. Maine Forest Products Council commented that the analysis
of development in Maine does not look at any development proposals,
empirical market information, analysis of comparable market sales, or
appraisal information, and it posits no build-out scenarios. This
commenter also expressed concern that there is no consideration of
development value on backland, which they suggest could be based on
available information from the sale of conservation easements. The
commenter provides information on two conservation easement sales and
applies these per-acre values to estimate potential development value
of some lands in the study area in Maine.
Our response: The values of conservation easements can serve as a
proxy for the value of a parcel for development. Research was
undertaken in the development of the DEA on per-acre values of
conservation easements in the study area. In order to transfer the
value of development from a conservation easement to other parcels,
however, information is needed on the relationship between land
attributes, such as distance from existing development and roads,
proximity to water bodies, etc., and the easement values. Without
information on the attributes of specific parcels that may be
developed, values of conservation easements could not be transferred
from easement lands to the specific parcels as a proxy of their
development value.
25. Comment: A comment provided by Cook County, Minnesota, states
that the DEA underestimates the amount of developable land in Cook
County.
Our response: As highlighted in this comment, approximately 91
percent of the lands in Cook County are public forest lands; the
private lands in the County are primarily inholdings within these
public forests. Where information was available to identify the private
inholdings among the public lands, those private lands were considered
developable. For example, 291 acres in the southwestern corner of Cook
County were identified as privately owned, and considered developable
in the DEA. Best available data regarding landownership within Unit 2,
however, is imperfect and may not identify all of the private
inholdings within the forests, in which case impacts may be
underestimated.
26. Comment: A comment provided by Lutsen Mountains Ski Area
asserted that the DEA should consider ``other relevant impacts'' of the
designation, including any resulting increased local standards on land
use decisions, such as zoning and issuance of building permits. This
may require hiring of experts, analysis, and public hearings before the
planning commission and county board.
Our response: The area of Cook County, Minnesota, to which this
comment refers is a developed area, containing recreational,
commercial, and residential infrastructure. Existing development and
infrastructure is excluded from critical habitat in the proposed rule.
The analysis, therefore, does not quantify impacts associated with
increased standards on local land use regulation associated with lynx
conservation.
27. Comment: A comment from F.H. Stoltze Land and Lumber Company
asserted that the use of $932 per acre as the value for development in
Montana is too low.
Our response: As described in Section 4.3.3, the DEA did not apply
an average per-acre value for developable lands in Montana but instead
applied parcel-specific appraisal data from the Montana Department of
Administration, Information Technology Services. The average per-acre
value is presented for context, although the specific values of parcels
ranged across the region.

Comments on the Recreation Analysis

28. Comment: Two comments asserted that the DEA should consider the
benefit to the economy of wildlife watching, including having lynx
available to watch. One commenter highlights the National Survey of
Fishing, Hunting, and Wildlife-Associated Recreation estimates that
778,000 people participated in wildlife-watching in Maine in 2001,
spending an average of $445 per participant.
Our response: Section 1.2.4 of the DEA acknowledges the potential
for benefits to the wildlife-viewing community of lynx conservation
efforts. Three pieces of information would be required to estimate
economic benefits derived from lynx-viewing: (1) The number of visitors
that may engage in lynx-viewing (the National Survey evidences the
importance of wildlife-viewing for all species in the entire State, not
that specifically related to lynx or within the lynx habitat area); (2)
the extent to which the likelihood of viewing lynx may be increased due
to the lynx conservation efforts described in this analysis; and (3)
the incremental value of a wildlife-viewing trip associated with lynx
sightings. These data are not available. To the extent that the
conservation efforts quantified in the DEA increase the likelihood of a
lynx sighting, and wildlife-viewing participants positively value that
opportunity, impacts in the DEA may be overestimated.
29. Comment: A comment from Lutsen Mountains Ski Area stated that,
while the DEA considers impacts associated with increased congestion on
snowmobiling trails and costs of hunter and trapper education, it does
not consider recreation activities occurring in Cook County, including
alpine skiing, golfing, hiking, cross country skiing, and mountain
biking.
Our response: The DEA considers activities that represent a
conservation threat to the lynx, and how they may be affected by lynx
conservation. As described in Section 4.2 of the DEA, existing
infrastructure related to recreation, such as ski resorts or golf
courses, are not considered critical habitat as described in the
proposed rule and, therefore, are not expected to be impacted by lynx
conservation as they do not support the lynx (70 FR 68304-5). The DEA
looks at expansions of existing recreation areas and developments of
new trails that may impact the proposed critical habitat for the lynx.
Accordingly, the DEA quantifies impacts in Cook County associated with
precluding the development of new trails, which may be used, for
example, for snowmobiling.
30. Comment: Maine Audubon and Defenders of Wildlife commented that
the recreation analysis in the DEA should not include the costs of
hunter

[[Page 66022]]

and trapper education programs as these programs are required
regardless of critical habitat designation because the lynx is a
threatened species.
Our response: As described in Section 1.2 of the DEA, due to the
difficulty in making a credible distinction between listing and
critical habitat effects within critical habitat boundaries, this
analysis considers all future conservation-related impacts to be co-
extensive with the designation.
31. Comment: One comment provided on the DEA states that roadless
areas of the National Forest System are the best hunting areas, and the
DEA should therefore consider that the enhancement and maintenance of
fish and wildlife species as a result of designating critical habitat
will also enhance hunting and tourism sectors of local economies.
Our response: While maintenance and enhancement of hunting areas
provides a benefit to hunters, and potentially tourism, within the
region, the extent to which the conservation efforts quantified in the
DEA contribute to the improved quantity (area) and/or quality (e.g.,
game density) of the forests for hunting is unknown. In the case that
restrictions on development within the habitat area increase the total
amount of land available for hunting in the future, information is
required regarding whether additional hunters would use the region, or
whether density of hunters across the region would decrease, to provide
an associated welfare benefit.
32. Comment: The Maine Forest Products Council asserted that the
analysis should weigh the impact of fewer snowmobilers recreating in
Maine with the demand for purchasing lands in the study area, including
impacts on forestland value, lease-lot values, conservation easement
values, and backland camplot values.
Our response: This comment asserts that demand for purchasing lands
in the study area will decrease as a result of decreases in the number
of snowmobilers recreating in the region. As described in Section 5.2,
the DEA assumes there will be no decrease in the number of snowmobilers
recreating in the study area in Maine. Rather, the DEA assumes that the
same number of snowmobilers will be recreating on fewer trails in the
future, as it assumes snowmobilers will not be deterred by the
increased densities projected. Therefore, the DEA does not estimate a
decreased demand on land purchases.
33. Comment: The Northwest Environmental Defense Center commented
that the analysis of impacts to the snowmobiling industry is flawed.
The DEA uses the results of a study of the impacts of increased
crowding of snowmobilers at Yellowstone National Park. The Northwest
Environmental Defense Center asserts that Yellowstone National Park is
significantly more crowded than the areas in question in the DEA.
Our response: Appendix E of the DEA discusses the limitations
associated with applying the results of the Yellowstone study to the
impacts to snowmobilers in the DEA, and acknowledges the comment raised
above. However, this study represents the best available information
regarding the impacts of increased crowding of snowmobilers. The
commenter states that the baseline density of snowmobilers in
Yellowstone is higher than that in the study area. For this reason,
Scenario 1 of the recreation impact analysis assumes that snowmobilers
do not experience a reduced value for snowmobiling trips as described
in Section 5.2 of the DEA.
34. Comment: A comment provided by the Washington State Snowmobile
Association asserted that the DEA failed to consider impacts to the
regional economy in Washington of curtailing snowmobiling. It further
states that, although there are only 29 miles of affected snowmobile
trails in Washington, those trails provide access to over 429 miles of
trails outside of the proposed habitat area. Similarly, F.H. Stoltze
Land and Lumber Company commented that the DEA fails to consider
impacts to local guides that charge for OHV use.
Our response: As described in Section 5 of the DEA, Scenario 2 of
the recreation analysis quantifies the impacts of increased congestion
on snowmobile trails as a result of restrictions on creating new
trails. Because the analysis quantifies impacts of increased congestion
as opposed to reduced participation, no impacts to regional businesses
benefiting from participation in snowmobiling are expected. Regarding
the access issue, the DEA does not assume that existing trails will be
decommissioned, as this is not described in the LCAS or in the past
consultation history as a habitat-related conservation measure for the
lynx. Accordingly, there is no economic impact forecast associated with
accessing trails outside of the study area from existing trails within
the study area.
35. Comment: The Cook County ATV Club commented that the DEA should
have considered impacts to ATV use in addition to other types of
recreation, such as snowmobiling.
Our response: The DEA applies habitat-related conservation measures
from the LCAS and consultation history to determine how land use
activities may be impacted by lynx conservation. Neither the LCAS nor
the consultation history cite ATV use specifically as a conservation
threat to the lynx or suggest that this activity may be impacted by
lynx conservation.

Comments on the Public Lands and Conservation Lands Management Analysis

36. Comment: Maine Audubon commented that the DEA estimate to
prepare a habitat management plan of $5.73 per acre overestimates the
true costs. The comment argued that the costs would be closer to a
range of $1 to $3 per acre.
Our response: The average per-acre cost estimate to prepare a lynx
habitat management plan is a weighted average of all known lynx
management plans in the region. Some of these plans cost on the order
of $1 to $3 per acre, and others were significantly greater, as
described in Exhibit 6-4.
37. Comment: The Washington Cattlemen's Association commented that
the DEA downplays the impact of lynx conservation on grazing in
Washington by comparing the impacts to the grazing activities in
Okanogan County to the entire Washington State livestock industry.
Our response: Section 6.5 of the DEA quantifies the value of
grazing in the study area. The DEA recognizes that impacts to rural
communities may be significant even when small compared to the
statewide industry. The value of the grazing resource in Washington
State was presented alongside the value of grazing in the critical
habitat area in order to provide additional information on the impacts
of critical habitat to the statewide economy. The final rule has
excluded areas that are currently grazed, and, therefore, there will be
no grazing impact as a result of this rule.
38. Comment: F.H. Stoltze Land and Lumber, Co. commented that page
6-18 of the DEA highlights that fencing to limit livestock grazing is a
conservation measure related to the lynx, but does not quantify impacts
of this effort.
Our response: As noted in Section 6.5 of the DEA, fencing of
foraging areas specifically for lynx and snowshoe hare is a habitat-
related conservation effort for the lynx. The DEA further states,
however, that while information is available regarding the level of
grazing activity in the habitat area overall, the extent to which
grazing occurs specifically within foraging habitat is unknown. The
amount and location of fencing that may be requested for the benefit of
the lynx is, therefore,

[[Page 66023]]

uncertain. The DEA thus presents the full value of the grazing resource
within the potential critical habitat area as a resource at risk of
being impacted by lynx conservation within the study area.
39. Comment: The Okanogan County Farm Bureau commented that fires
burn thousands of acres of lynx habitat in the North Cascades, and
broad designation of critical habitat will severely restrict the
thinning necessary to prevent fire losses that threaten homes and
lives. F.H. Stoltze Land and Lumber Company also commented that
management of fires has been important in Western Montana.
Our response: The DEA relies on the conservation measures outlined
in the LCAS to determine how land use activities may be affected by
lynx conservation. As described in Section 6.6. of the DEA, the LCAS
does not recommend precluding burn management as a lynx conservation
measure, but suggests that lynx conservation be taken into
consideration in planning burn management, for example, by promoting
response by shrub and tree species favored by the snowshoe hare or
other prey species, avoiding construction of permanent firebreaks, and
minimizing temporary construction of roads.

Comments on the Transportation Analysis

40. Comment: One commenter was concerned about the impact the
designation could have on the ability to maintain and improve Route 11
in Maine; in particular, the commenter was concerned about impacts on
the ability of the sawmills in Portage and Ashland to get wood.
Our response: We have excluded all lands in Maine from this final
designation of critical habitat for the lynx pursuant to section
4(b)(2) of the Act; thus, this concern about impacting Route 11
maintenance is no longer an issue.

Comments on the Mining Analysis

41. Comment: The Northwest Mining Association commented that the
DEA did not consider impacts to three mines in Western Montana (Troy,
Rock Creek, and Montanore), Formation Capital's cobalt project near
Salmon, ID, or Kinross Gold's Buckhorn project in Okanagan County, WA.
Our response: As described in Section 2.1, the geographic scope of
the DEA is limited to those areas proposed for designation and those
areas considered for exclusion from critical habitat in the proposed
rule; these lands are referred to as the ``study area'' of the DEA.
None of the mines referenced in this comment are within the study area.
42. Comment: The Northwest Mining Association stated that the
economic analysis should have analyzed the impact of the loss of mining
activity on Federal lands due to the LCAS.
Our response: Mining expansions or expected new mining projects
were considered in the analysis of mining activity in Section 8
regardless of whether they were expected to occur on Federal lands or
otherwise.

Comments on the Initial Regulatory Flexibility Analysis (IRFA)

43. Comment: The Small Business Administration (SBA), Office of
Advocacy commented that the development analysis in the DEA should
include more information on the number of small entities to which the
proposed rule will apply, similar to how impacts to small timber-
related businesses are considered in the DEA.
Our response: Because the DEA did not provide estimates of impact
to development activities, entities related to development were not
considered in the draft IRFA. A supplemental analysis estimating
impacts to development activities conducted during the public comment
period provided more information on how landowners may be affected by
the proposed rule. The IRFA in the Final EA is, therefore, updated to
include numbers of development-related small entities. Further, this
updated information was taken into consideration in the development of
this final rule.
44. Comment: The SBA commented that the DEA does not include data
on the economic impacts of the proposed rule on small entities in the
development industry, which include developers, builders, and other
types of small entities in addition to landowners.
Our response: The supplemental development analysis incorporated in
the Final EA quantifies impacts to land values associated with
restrictions on development for the purposes of lynx conservation. The
IRFA assumes that the primary impact of decreased development is to the
landowner in the form of decreased land value. The analysis further
assumes that, to the extent that decreased development leads to impacts
on related businesses, these businesses are small. This is because the
majority (90 to 100 percent depending on the sector) of the businesses
in related industries (e.g., construction, planning, and landscaping)
are small in the counties containing proposed critical habitat. While
more detailed information became available to us for consideration of
potential economic impacts on small business entities through the
supplemental analysis, because only National Park Service lands remain
in the final designation, we do not anticipate significant impacts to a
substantial number of small business entities. Please refer to our
discussion concerning compliance with the Regulatory Flexibility
Analysis later in the rule.
45. Comment: The SBA expressed concern that the IRFA does not
include impacts to the timber industry such as decreased employment,
decreased number of businesses or foregone revenue, or profit per
business. The comment further stated that small entities are worried
that further regulatory restrictions from the State and local
government will further burden the timber industry. Another comment on
the DEA stated that the IRFA is inadequate and requested that the IRFA
be revised to consider the impacts to small businesses that rely on the
resources on public lands. The comment further asserted that the IRFA
should look at small business impacts in individual communities as
opposed to the habitat as a whole.
Our response: The draft IRFA contained within the DEA represents an
initial examination of potential impacts to small businesses to provide
information regarding whether the rule may result in a significant
impact on a substantial number of small businesses, and, therefore,
whether a full Regulatory Flexibility Analysis should be completed,
which would require additional research, outreach, and analysis.
However, because only National Park Service lands remain in the final
designation, we do not anticipate significant impacts to a substantial
number of small business entities. Please refer to our discussion
concerning compliance with the Regulatory Flexibility Analysis later in
the rule.
46. Comment: One commenter expressed concern about the reliability
of data sources used to estimate the number of small businesses in the
study area.
Our response: As stated in the notes to Exhibit C-3, the number of
small timber-related businesses in the study area is from the Dun &
Bradstreet database, a frequently cited source of business information,
and was acquired in February 2006. The numbers of small businesses
estimated are for all counties containing critical habitat, and not
just for the study area within the county as this information is not
readily available at a more refined geographic scale than county.

[[Page 66024]]

Summary of Changes From Proposed Rule

In preparing the final critical habitat designation for the lynx,
we reviewed and considered comments from the public on the proposed
designation of critical habitat published on November 9, 2005 (70 FR
68294). We published a Notice of Availability of the DEA and draft
environmental assessment on September 11, 2006 (71 FR 53355). As a
result of comments received on the proposal, the DEA, draft
environmental assessment and a reevaluation of the proposed critical
habitat boundaries we made changes to our proposed designation as
follows:
(1) We reevaluated the proposed critical habitat units based on
peer review, public comments, and biological information received
during the public comment period. We excluded areas based on Tribal
ownership, lands with existing lynx management plans or pending HCPs
for lynx, lands managed for commercial forestry because of existing
management practices and partnerships, and small landowners and lands
not managed for commercial forestry because of their minor role in the
conservation of lynx compared to efforts taken by larger landowners on
adjacent and nearby lands who have an important role in the
conservation of lynx habitat.
(2) Portions of units that did not contain PCEs or where
development was concentrated were removed from the final designation
based on available maps.
(3) Collectively, we excluded or removed a total of approximately
41,922 km\2\ (16,190 mi\2\) of land from this final critical habitat
designation. Please refer to Table 1 for the differences in the amount
of area proposed for designation and the areas designated in this final
rule. For a detailed discussion of all exclusions and exemptions,
please refer to Exclusions Under Section 4(b)(2) of the Act section
below.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species 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.
Conservation is a process which contributes to improving the status of
the species. Individual actions may still be considered conservation
even though in and of themselves they do not remove the species' need
for protection under the Act.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the geographical area occupied by the subspecies must first have
features that are essential to the conservation of the subspecies.
Critical habitat designations identify, to the extent known using the
best scientific data available, habitat areas that provide essential
life cycle needs of the subspecies (i.e., areas on which are found the
primary constituent elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management considerations or protection. Thus, we do not include areas
where existing management is sufficient to conserve the subspecies. (As
discussed below, such areas may also be excluded from critical habitat
pursuant to section 4(b)(2).) Accordingly, when the best available
scientific data do not demonstrate that the conservation needs of the
subspecies require additional areas, we will not designate critical
habitat in areas outside the geographical area occupied by the
subspecies at the time of listing. An area currently occupied by the
subspecies but was not known to be occupied at the time of listing will
likely, but not always, be essential to the conservation of the
subspecies and, therefore, typically included in the critical habitat
designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service 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 are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include 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, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the subspecies. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.

[[Page 66025]]

Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. 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, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical and biological features (PCEs) that
are essential to the conservation of the subspecies, and within areas
occupied by the subspecies at the time of listing, that may require
special management considerations and protection. These include, but
are not limited to: Space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The area designated as critical habitat provides boreal forest
habitat for breeding, non-breeding, and dispersing lynx in
metapopulations across the species' range in the contiguous United
States. No areas are being designated solely because they provide
habitat for dispersing animals. At this time, the biological or
physical features of habitats lynx choose for dispersal are not well-
understood; while it is assumed lynx would prefer to travel where there
is forested cover, the literature contains many examples of lynx
crossing large, unforested openings (e.g., Roe et al. 2000, p. 30-33).
The areas being designated as critical habitat serve a variety of
functions that include acting as a source of dispersing animals and
providing habitat that may serve as travel corridors to facilitate
dispersal and exploratory movements. The features or habitat components
essential for the conservation of the species were determined from
studies of lynx and snowshoe hare ecology.
The specific biological and physical features, otherwise known as
the primary constituent elements, essential to the conservation of the
lynx are:
(1) Boreal forest landscapes supporting a mosaic of differing
successional forest stages and containing:
(a) Presence of snowshoe hares and their preferred habitat
conditions, which include dense understories of young trees, shrubs or
overhanging boughs that protrude above the snow; and
(b) Winter snow conditions that are generally deep and fluffy for
extended periods of time; and
(c) Sites for denning that have abundant coarse woody debris, such
as downed trees and root wads.
A description of the primary constituent elements is provided
below.

Boreal Forest Landscapes (Space for Individual and Population Growth
and Normal Behavior)

Lynx populations respond to biotic and abiotic factors at different
scales. At the regional scale, snow conditions, boreal forest and
competitors (especially bobcat) influence the species' range (Aubry et
al. 2000, p. 378-380; McKelvey et al., 2000b p. 242-253; Hoving et al.,
2005 p. 749). At the landscape scale within each region, natural and
human-caused disturbance processes (e.g., fire, wind, insect
infestations and forest management) influence the spatial and temporal
distribution of lynx populations by affecting the distribution of good
habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger et al. 2000,
pp. 1-3, 2-2--2-6, 7-3). At the stand-level scale, quality, quantity,
and juxtaposition of habitats influence home range size, productivity,
and survival (Aubry et al 2000, pp. 380-390; Vashon et al. 2005a, pp.
9-11). At the substand scale, spatial distribution and abundance of
prey and microclimate influence movements, hunting behavior, den, and
resting site locations.
All of the constituent elements of critical habitat for lynx are
found within large landscapes in what is broadly described as the
boreal forest or cold temperate forest (Frelich and Reich 1995, p. 325,
Agee 2000, pp. 43-46). In the contiguous United States, the boreal
forest is more transitional rather than true boreal forest of northern
Canada and Alaska (Agee 2000, pp. 43-46). This difference is because
the boreal forest is at its southern limits in the contiguous United
States, where it transitions to deciduous temperate forest in the
Northeast and Great Lakes and subalpine forest in the west (Agee 2000,
pp. 43-46). We use the term ``boreal forest'' because it generally
encompasses most of the vegetative descriptions of the transitional
forest types that comprise lynx habitat in the contiguous United States
(Agee 2000, pp. 40-41).
At a regional scale, lynx habitat is within the areas that support
deep snow for extended periods and that support boreal forest
vegetation types (see below for more detail). In eastern North America,
lynx distribution was strongly associated with areas of deep snowfall
and 100 km\2\ (40 mi\2\)) landscapes with a high proportion of
regenerating forest (Hoving 2001, pp. 75,143). Hoving et al. (2004, p.
291) concluded that the broad geographic distribution of lynx in
eastern North America is most influenced by snowfall, but within areas
of similarly deep snowfall, measures of forest succession become more
important factors in determining lynx distribution.
Boreal forests used by lynx are generally cool, moist and dominated
by conifer tree species, primarily spruce and fir (Agee 2000, pp. 40-
46; Aubry et al. 2000, pp. 378-382; Ruediger et al. 2000, pp. 4-3, 4-
8--4-11, 4-25--4-26, 4-29--4-30). Boreal forest landscapes used by lynx
are a heterogeneous mosaic of vegetative cover types and successional
forest stages created by natural and human-caused disturbances
(McKelvey et al. 2000a, pp. 426-434). Periodic vegetation disturbances
stimulate development of dense understory or early successional habitat
for snowshoe hares (Ruediger et al. 2000, pp. 1-3--1-4, 7-4--7-5). In
Maine, lynx were positively associated with landscapes altered by
clearcutting 15 to 25 years previously (Hoving et al. 2004, p. 291).
The overall quality of the boreal forest landscape matrix and
juxtaposition of stands in suitable condition within the landscape is
important for both lynx and snowshoe hares in that it can influence
connectivity or movements between suitable stands, availability of food
and cover and spatial structuring of populations or subpopulations
(Hodges 2000b, pp. 184-195; McKelvey et al. 2000a, pp. 431-432; Walker
2005, pp. 79). For example, lynx foraging habitat must be near denning
habitat to allow females to adequately provision dependent kittens,
especially when the kittens are relatively immobile. In north-central
Washington, hare densities were higher in landscapes with an abundance
of dense boreal forest interspersed with

[[Page 66026]]

small patches of open habitat, in contrast to landscapes composed
primarily of open forest interspersed with few dense vegetation patches
(Walker 2005, p. 79). Similarly, in northwest Montana, connectivity of
dense patches within the forest matrix benefited snowshoe hares
(Ausband and Baty 2005, p. 209). In mountainous areas, lynx appear to
prefer flatter slopes (Apps 2000, p. 361; McKelvey et al. 2000d, p.
333; von Kienast 2003, p. 21, Table 2; Maletzke 2004, pp. 17-18).
Individual lynx require large portions of boreal forest landscapes
to support their home ranges and to facilitate dispersal and
exploratory travel. The size of lynx home ranges is believed to be
strongly influenced by the quality of the habitat, particularly the
abundance of snowshoe hares, in addition to other factors such as
gender, age, season, and density of the lynx population (Aubry et al.
2000, pp. 382-385; Mowat et al. 2000, pp. 276-280). Generally, females
with kittens have the smallest home ranges while males have the largest
home ranges (Moen et al. 2005, p. 11). Reported home range sizes vary
greatly from 31 km\2\ (12 mi\2\) for females and 68 km\2\ (26 mi\2\)
for males in Maine (Vashon et al. 2005a, p. 7), 21 km\2\ (8 mi\2\) for
females to 307 km\2\ (119 mi\2\) for males in Minnesota (Moen et al.
2005, p. 12), and 88 km\2\ (34 mi\2\) for females and 216 km\2\ (83
mi\2\) for males in northwest Montana (Squires et al. 2004b, pp. 15-
16).

Forest Type Associations

Maine

Lynx were more likely to occur in 100 km² (40
mi²) landscapes with regenerating forest, and less likely to
occur in landscapes with recent clearcut or partial harvest, (Hoving et
al. 2004, pp. 291-292). Lynx in Maine select softwood-dominated (spruce
and fir) regenerating stands (Vashon et al. 2005a, p. 8). Regenerating
stands used by lynx generally develop 15-30 years after forest
disturbance and are characterized by dense horizontal structure and
high stem density within a meter of the ground. These habitats support
high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison
2005, pp. 716,719; Vashon et al. 2005a, pp. 10-11). At the stand scale,
lynx in northwestern Maine selected older (11 to 26 year-old), tall
(4.6 to 7.3 m (15 to 24 ft)) regenerating clearcut stands and older (11
to 21 year-old) partially harvested stands (A. Fuller, University of
Maine, unpubl. data).

Minnesota

In Minnesota, lynx primarily occur in the Northern Superior Uplands
Ecological Section of the Laurentian Mixed Forest Province.
Historically, this area was dominated by red pine (Pinus resinosa) and
white pine (P. strobus) mixed with aspen (Populus spp.), paper birch
(Betula papyrifera), spruce, balsam fir (A. balsamifera) and jack pine
(P. banksiana) (Minnesota Department of Natural Resources [Minnesota
DNR] 2003, p. 2).
Preliminary research suggests lynx in Minnesota generally use
younger stands (less than 50 years) with a conifer component in greater
proportion than their availability (R. Moen, University of Minnesota,
unpubl. data). Lynx prefer predominantly upland forests dominated by
red pine, white pine, jack pine, black spruce (P. mariana), paper
birch, quaking aspen (P. tremuloides), or balsam fir (R. Moen, unpubl.
data).

Washington

In the North Cascades in Washington, the majority of lynx
occurrences were found above 1,250 m (4,101 ft) (McKelvey et al. 2000b,
p. 243, 2000d, p. 321; von Kienast 2003, p. 28, Table 2; Maletzke 2004,
p. 17). In this area, lynx selected Engelman spruce (P. engelmanii)-
subalpine fir (A. lasiocarpa) forest cover types in winter (von Kienast
2003, p. 28, Maletzke 2004, pp. 16-17). Lodgepole pine (P. contorta) is
a dominant tree species in the earlier successional stages of these
climax cover types. Seral lodgepole stands contained dense understories
and therefore received high use by snowshoe hares and lynx (Koehler
1990, pp. 847-848; McKelvey et al. 2000d, pp. 332-335).

Northern Rockies

In the Northern Rocky Mountains, the majority of lynx occurrences
are associated with the Rocky Mountain Conifer Forest or Western
Spruce-Fir Forest vegetative class (Kuchler 1964, p. 4; McKelvey et al.
2000b, p. 246) and occur above 1,250 m (4,101 ft) elevation (Aubry et
al. 2000, pp. 378-380; McKelvey et al. 2000b, pp. 243-245). The
dominant vegetation that constitutes lynx habitat in these areas is
subalpine fir, Engelman spruce and lodgepole pine (Aubry et al. 2000,
p. 379; Ruediger et al. 2000, pp. 4-8--4-10). As in the Cascades,
lodgepole pine is an earlier successional stage of subalpine fir and
Engelman spruce climax forest cover types.
a. Snowshoe Hares (Food)
Snowshoe hare density is the most important factor explaining the
persistence of lynx populations (Steury and Murray 2004, p. 136). A
minimum snowshoe hare density necessary to maintain a persistent,
reproducing lynx population within the contiguous United States has not
been determined, although Ruggiero et al. (2000, pp. 446-447) suggested
that at least 0.5 hares per hectare (ha) (0.2 hares per acre (ac)) may
be necessary. Steury and Murray (2004, p. 137)) modeled lynx and
snowshoe hare populations and predicted that a minimum of 1.1 to 1.8
hares per ha (0.4 to 0.7 hares per ac) was required for persistence of
a reintroduced lynx population in the southern portion of the lynx
range.
The boreal forest landscape must contain a mosaic of forest stand
successional stages to sustain lynx populations over the long term as
the condition of individual stands changes over time. If the vegetation
potential (or climax forest type) of a particular forest stand is
conducive to supporting abundant snowshoe hares, it likely will also go
through successional phases that are unsuitable as lynx foraging
(snowshoe hare habitat) or lynx denning habitat (Agee 2000, p. 62-72;
Buskirk et al. 2000b, pp. 403-408). For example, a boreal forest stand
where there has been recent disturbance, such as fire or timber
harvest, resulting in little or no understory structure is unsuitable
as snowhoe hare habitat for lynx foraging. That temporarily unsuitable
stand may regenerate into suitable snowshoe hare (lynx foraging)
habitat within 10 to 25 years, depending on local conditions (Ruediger
et al. 2000, pp. 1-3--1-4, 2-2--2-5). Forest management techniques that
thin the understory, however, may render the habitat unsuitable for
hares and, thus, for lynx (Ruediger et al. 2000, pp. 2-4--3-2; Hoving
et al. 2004, pp. 291-292). Stands may continue to provide suitable
snowshoe hare habitat for many years until woody stems in the
understory become too sparse, as a result of undisturbed forest
succession or management (e.g., clearcutting or thinning). Thus, if the
vegetation potential of the stand is appropriate, a stand that is not
currently in a condition that is suitable to support abundant snowshoe
hares for lynx foraging or coarse woody debris for den sites has the
capability to develop into suitable habitat for lynx and snowshoe hares
with time.
As described previously, snowshoe hares prefer boreal forest stands
that have a dense horizontal understory to provide food, cover and
security from predators. Snowshoe hares feed on conifers, deciduous
trees and shrubs (Hodges 2000b, pp. 181-183). Snowshoe hare density is
correlated to understory

[[Page 66027]]

cover between approximately 1 to 3 m (3 to 10 ft) above the ground or
snow level (Hodges 2000b, p. 184). Habitats most heavily used by
snowshoe hares are stands with shrubs, stands that are densely stocked,
and stands at ages where branches have more lateral cover (Hodges
2000b, p. 184). In Maine, the snowshoe hare densities were highest in
stands supporting high conifer stem densities (Homyack 2003, p. 195,
Robinson 2006, p. 69). In northcentral Washington, snowshoe hare
density was highest in 20-year-old lodgepole pine stands where the
average density of trees and shrubs was 15,840 stems per ha (6,415
stems per ac) (Koehler 1990, p. 848). Generally, earlier successional
forest stages support a greater density of horizontal understory and
more abundant snowshoe hares (Buehler and Keith 1982, p. 24; Wolfe et
al. 1982, p. 668-669; Koehler 1990, pp. 847-848; Hodges 2000b, pp. 184-
191; Griffin 2004, pp. 84-88); however, sometimes mature stands also
can have adequate dense understory to support abundant snowshoe hares
(Griffin 2004, p. 88). In Montana, lynx favor multistory stands, often
in older-age classes, where the tree boughs touch the snow surface but
where the stem density is low (Squires 2006, p. 4).
In Maine, the highest snowshoe hare densities were found in
regenerating softwood (spruce and fir) and mixedwood stands with high
conifer stem densities (Fuller and Harrison 2005, pp. 716,719, Robinson
2006, p. 69). In the north Cascades, the highest snowshoe hare
densities were found in 20-year-old seral lodgepole pine stands with a
dense understory (Koehler 1990, p. 847-848). In montane and subalpine
forests in northwest Montana, the highest snowshoe hare densities in
summer were generally in younger stands with dense forest structure,
whereas in winter, snowshoe hare densities were as high or higher in
mature stands with dense understory forest structure (Griffin 2004, p.
53). Snowshoe hare studies are just underway in Minnesota (Moen et al.
2005, p. 18); therefore, results on habitat relationships are still
preliminary.
Habitats supporting abundant snowshoe hares must be present in a
large proportion of the landscape to support a viable lynx population.
Broad-scale snowshoe hare density estimates are not available for the
areas being designated as lynx critical habitat; available snowshoe
hare density estimates are only applicable for the immediate area and
time frame for which the study was conducted and cannot be extrapolated
further.
b. Snow Conditions (Other Physiological Requirements)
Snow conditions also determine the distribution of lynx and
snowshoe hares. Deep, fluffy snow conditions likely restrict potential
competitors such as bobcat or coyote from effectively encroaching on or
hunting in winter lynx habitat. Snowfall was the strongest predictor of
lynx occurrence at a regional scale (Hoving et al. 2005, p. 746, Table
5). In addition to snow depth, other snow properties, including surface
hardness or sinking depth, are important factors in the spatial,
ecological, and genetic structuring of the species (Stenseth et al.
2004, p. 75).
In the northeastern United States, lynx are most likely to occur in
areas with a 10-year mean annual snowfall greater than 268 cm (105 in)
(Hoving 2001, p. 75). The Northern Superior Uplands section of
Minnesota receives more of its precipitation as snow than any section
in the State, has the longest period of snow cover, and the shortest
growing season (Minnesota DNR 2003, p. 2). Mean annual snowfall from
1971 to 2000 in this area was generally greater than 149 cm (55 in)
(University of Minnesota 2005 Web page).
Information on average snowfall or snow depths in mountainous areas
such as the Cascades or northwest Montana is limited because there are
few weather stations in these regions that have measured snow fall or
snow depth over time. An important consideration is that the topography
strongly influences local snow conditions. In the Cascades, at the
Mazama station, average annual snowfall from 1948 to 1976 was 292 cm
(115 in) (Western Regional Climate Center 2005 Web page). In Montana,
at the Seeley Lake Ranger Station, average annual snowfall from 1948 to
2005 was 315 cm (124 in), while at the Troy station the average total
snowfall from 1961 to 1994 was 229 cm (90 in) (Western Regional Climate
Center 2005 Web page).
c. Denning Habitat (Sites for Reproduction and Rearing of Offspring)
Lynx den sites are found in mature and younger boreal forest stands
that have a large amount of cover and downed, large woody debris. The
structural components of lynx den sites are common features in managed
(logged) and unmanaged (e.g., insect damaged, wind-throw) stands.
Downed trees provide excellent cover for den sites and kittens and
often are associated with dense woody stem growth.
Sub-stand characteristics were evaluated for 26 lynx dens from 1999
to 2004 in northwest Maine. Dens were found in several stand types.
Modeling of den site variables determined that tip-up mounds (exposed
roots from fallen trees) alone best explained den site selection (J.
Organ, Service, unpubl. data). Tip-up mounds may purely be an index of
downed trees, which were abundant on the landscape. Horizontal cover at
5 m (16 ft) alone was the next best performing model (J. Organ, unpubl.
data). Dead downed trees were sampled, but did not explain den site
selection as well as tip-up mounds and cover at 5 m (16 ft). Lynx
essentially select dense cover in a cover-rich area for denning.
In the North Cascades, Washington, lynx denned in mature (older
than 250 years) stands with an overstory of Engelman spruce, subalpine
fir and lodgepole pine with an abundance of downed woody debris
(Koehler 1990, p. 847). In this study, all den sites were located on
north-northeast aspects (Koehler 1990, p. 847). In northwest Montana,
the immediate areas around dens were in a variety of stand ages but all
contained abundant woody debris including downed logs, blowdowns, and
rootwads, and dense understory cover (Squires et al. 2004b, Table 3).
Information on den site characteristics in Minnesota has not yet been
reported (Moen et al. 2005, p. 8).
This critical habitat designation is designed for the conservation
of the PCE essential to the conservation of the lynx and necessary to
support lynx life history functions. The PCE comprises the essential
features of boreal forest that (1) provide adequate prey resources
necessary for the persistence of local populations and metapopulations
of lynx through reproduction; (2) act as a possible source of lynx for
more peripheral boreal forested areas; (3) enable the maintenance of
home ranges; (4) incorporate snow conditions for which lynx are highly
specialized that give lynx a competitive advantage over potential
competitors; (5) provide denning habitat; and (6) provide habitat
connectivity for travel within home ranges, exploratory movements, and
dispersal.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available in determining critical habitat. We have
reviewed the approach to the conservation of the lynx provided in a
recovery outline (Service 2005, entire); information from State,
Federal and tribal agencies; and information from academia and private
organizations that have collected scientific data on lynx.

[[Page 66028]]

The focus of our strategy in considering lands for designation as
critical habitat was on boreal forest landscapes of sufficient size to
encompass the temporal and spatial changes in habitat and snowshoe hare
populations to support interbreeding lynx populations or
metapopulations over time. Individual lynx maintain large home ranges;
the areas identified to have features essential to the conservation of
the lynx are large enough to encompass multiple home ranges. A
secondary consideration is that, in addition to supporting breeding
populations, these areas provide connectivity among patches of suitable
habitat (e.g., patches containing abundant snowshoe hares), whose
locations in the landscape shift through time.
We reviewed available information that pertains to the habitat
requirements of this species and its principal prey, the snowshoe hare.
This information included data in reports submitted by researchers
holding recovery permits under section 10(a)(1)(A) of the Act; research
published in peer-reviewed articles, presented in academic theses,
agency reports and unpublished data; and various Geographic Information
System (GIS) coverages (e.g., land cover type information, land
ownership information, snow depth information, topographic information,
locations of lynx obtained from radio- or GPS-collars and locations of
lynx confirmed via DNA analysis or other verified records).
In designating critical habitat for the lynx we used the best
scientific data available to evaluate areas that possess those physical
and biological features essential to the conservation of the species
and that may require special management considerations or protection.
In evaluating areas as critical habitat, we first determined the
geographic area occupied by the species. We utilized data providing
verified evidence of the occurrence of lynx and evidence of the
presence of breeding lynx populations as represented by records of lynx
reproduction. We focused on records since 1995 to ensure that this
critical habitat designation is based on the data that most closely
represents the current status of lynx in the contiguous United States
and the geographic area occupied by the species. Data that define the
historic and current range of the lynx (e.g., McKelvey et al. 2000b,
pp. 207-232; Hoving et al. 2003, entire) constitute the geographic area
that may be occupied by the species; therefore, we determined that
areas outside the historic distribution are not essential to the
conservation of the species. Although the average life span of a wild
lynx is not known, we have assumed that a lynx born in 1995 could have
been alive in 2000 or 2003, the dates of publication of the final
listing rule and the clarification of findings. Recent verified lynx
occurrence records were provided by Federal research entities, state
wildlife agencies, academic researchers, and private individuals or
organizations working on lynx (K. Aubry, Pacific Northwest Research
Station, unpubl. data; S. Gehman, Wildthings Unlimited, unpubl. data;
S. Gniadek, Glacier National Park, unpubl. data; S. Loch, Independent
Scientist, and E. Lindquist, Superior National Forest, unpubl. data; K.
McKelvey, Rocky Mountain Research Station; unpubl. data; Minnesota DNR
2005 Web site; R. Moen, University of Minnesota, Natural Resources
Research Institute, unpubl. data.; J. Squires, Rocky Mountain Research
Station, unpubl. data; J. Vashon, Maine Department of Inland Fisheries
and Wildlife, unpubl. data).
By accepting only verified recent lynx records, we restricted the
available lynx occurrence dataset because we wanted reliable data for
the purposes of evaluating areas and features for critical habitat
designation. The reliability of lynx occurrence reports can be
questionable because the bobcat, a common species, can be confused with
the lynx, which is similar in appearance. Additionally, many surveys
are conducted by snow tracking in which correct identification of
tracks can be difficult because of variable conditions affecting the
quality of the track and variable expertise of the tracker. Our
definition of a verified lynx record is modified from McKelvey et al.
(2000b, p. 209)--(1) an animal (live or dead) in hand or observed
closely by a person knowledgeable in lynx identification, (2) genetic
(DNA) confirmation, (3) snow tracks only when confirmed by genetic
analysis (e.g., McKelvey et al. 2006, entire) or (4) location data from
radio- or GPS-collared lynx. Documentation of lynx reproduction
consists of lynx kittens in hand, or observed with the mother by
someone knowledgeable in lynx identification, or snow tracks
demonstrating family groups traveling together, as identified by a
person highly knowledgeable in identification of carnivore tracks.
However, we made an exception and accepted snow track data from Maine
because of the stringent protocols used in confirming tracks as lynx
and the minimal number of species in the area with which lynx tracks
could be misidentified (McCollough 2006, entire).
The geographical area occupied by the species was then delineated
to encompass areas containing features essential to the conservation of
the lynx, the majority of recent lynx records, evidence of breeding
lynx populations, the boreal forest type that is currently occupied by
lynx in that particular region and direct connectivity with lynx
populations in Canada. Lynx populations in the contiguous United States
seem to be influenced by lynx population dynamics in Canada (Thiel
1987; McKelvey et al. 2000a, p. 427, 2000c, p. 33). Many of these
populations in Canada are directly interconnected with United States'
populations, and are likely a source of emigration into the contiguous
United States, lynx from the contiguous United States are known to move
into Canada. Therefore, we assume that retaining connectivity with
larger lynx populations in Canada is important to ensuring long-term
persistence of lynx populations in the United States. We assume that,
regionally, lynx within the contiguous United States and adjacent
Canadian provinces interact as metapopulations. Where available, data
on historic average snow depths and bobcat harvest provided additional
insight for refining and delineating appropriate boundaries for
consideration as critical habitat.
In the North Cascades and Northern Rockies, the features essential
to the conservation of lynx, the majority of lynx records, evidence of
reproduction, and the boreal forest types are found above 4,000 feet
(ft) (1,219 meters [m]) in elevation (McKelvey et al. 2000b, pp. 243-
245; McAllister et al. 2000, entire). Thus, we limited the delineation
of critical habitat to lands above this elevation. Additionally, in the
North Cascades, features essential to the conservation of the lynx and
the majority of the lynx records and evidence of reproduction occur
east of the crest of the Cascade Mountains.
Once we determined which lands contained the physical and
biological features essential to the conservation of lynx, we did not
include lands that did not require additional special management
according for the definition of critical habitat, and lands where the
benefits of exclusion outweighed the benefits of inclusion. Finally, we
excluded Tribal lands in accordance with Secretarial Order 3206, et al.
Lands that we did not include because they did not require special
management included lands with management plans to conserve lynx, such
as the Superior National Forest; Garnet Resource Area, Bureau of Land
Management; Flathead Indian

[[Page 66029]]

Reservation, and the Spokane District, Bureau of Land Management. We
also did not include USFS Lands Covered by a Conservation Agreement for
Lynx, which includes portions of the Flathead National Forest, Helena
National Forest, Idaho Panhandle National Forests, Kootenai National
Forest, Lewis and Clark National Forest, Lolo National Forest and the
Okanogan-Wenatchee National Forest. Please refer to Application of
Section 3(5)(A) of the Endangered Species Act discussion below.
We determined that the benefits of exclusion outweighed the
benefits of inclusion for the Montana Department of Natural Resources
and Conservation Forested State Trust lands that are covered by a
pending Habitat Conservation Plan for lynx and other species,
Washington Department of Natural Resource (WDNR) lands managed under
Lynx Habitat Management Plan, lands managed for commercial forestry,
small landowners, and other lands not managed for commercial forestry
but that benefit from conservation measures taken by adjacent or nearby
landowners (which includes inholdings within National Parks and
National Forests). These exclusions are described in more detail in
section 4(b)(2) below.
We excluded Tribal lands in accordance with Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' and other orders and directives. These
include Houlton Band of Maliseet Indians, Aroostook Band of Micmac
Indians, Passamaquoddy Tribe, Penobscot Indian Nation, Grand Portage
Indian Reservation, Vermillion Lake Indian Reservation.
Based on comments received, the availability of better maps and
inspection of aerial photos, we removed sections of lands that were not
forested. We then removed a 1 mile strip along the entire Lake Superior
shoreline in Minnesota and the area within a 10-mile radius of Duluth,
MN, because this is where existing development is concentrated
(Industrial Economics, Incorporated 2006, pp. 4-12), limiting the
potential of any lynx habitat intermingling in these areas.
As a result of stepping through this process, we are not
designating any critical habitat in Maine, and only National Park
Service lands in Minnesota (Voyageurs National Park), Montana (Glacier
National Park), and Washington (North Cascades National Park including
Lake Chelan National Recreation Area).
Given the scale of the critical habitat units, it was not feasible
to completely avoid encompassing waterbodies, including lakes,
reservoirs and rivers, grasslands, or human-made structures such as
buildings, paved and gravel roadbeds, parking lots, and other
structures that lack the PCEs for the lynx. Any such developed areas
and the land on which such structures are located inside critical
habitat boundaries, are excluded by text and are not designated
critical habitat. Therefore, Federal actions limited to these areas
would not trigger section 7 consultation, unless they affect the
species and/or primary constituent element in adjacent critical
habitat.
When considering what areas to include as critical habitat, we
focused closely on areas with reliable evidence of lynx occurrence and
reproduction since 1995. For example, because there is no verified
evidence of lynx occupation or reproduction in New Hampshire or western
Maine since 1995, we did not consider these areas to be essential to
the conservation of the lynx. In addition, while evaluating information
for the critical habitat proposal, we received bobcat harvest data for
Minnesota showing abundant bobcat harvest and reduced lynx presence in
the area west of the critical habitat unit in Minnesota, which suggests
the western portion of the area preliminarily delineated as core in
Minnesota may not be of high quality for lynx.
We determined that the Kettle Range in northcentral Washington and
the Greater Yellowstone Ecosystem did not contain the features
essential to the conservation of the listed entity and thus did not
include them in either our proposed or final critical habitat rules.
The Kettle Range historically supported lynx populations (Stinson 2001,
pp.13-14). However, although boreal forest habitat within the Kettle
Range appears of high quality for lynx, there is no evidence that the
Kettle Range is currently occupied by a lynx population (Koehler 2005
entire). In particular, we have no information to suggest a lynx
population has occupied the Kettle area since 1995 so it did not meet
our criteria for consideration as critical habitat. Therefore, we did
not propose the Kettle Range as critical habitat.
Although lynx currently occupy the Greater Yellowstone Ecosystem
(Murphy et al. 2004, entire; J. Squires, Rocky Mountain Research
Station, unpubl. data; S. Gehman, Wildthings Unlimited, unpubl. data),
their presence has been at a lower level compared to areas we
considered as critical habitat. In the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076), we
concluded this was because habitat in this area is less capable of
supporting snowshoe hares because it is naturally marginal (more patchy
and drier forest types) and because the Greater Yellowstone Ecosystem
is disjunct from likely source populations. Within Yellowstone National
Park, few lynx were detected during recent surveys (Murphy et al. 2004,
pp.8-9) and snowshoe hare densities were very low (Hodges and Mills
2005, pp. 5-6). Murphy et al. (2004, pp. 9-10) concluded that
elevations and slope aspects cause lynx habitat in this area to be
naturally highly fragmented, resulting in low lynx densities. Few lynx
were documented in the Wyoming Mountain Range in the southern portion
of the ecosystem (Squires and Laurion 2000, pp. 343-345; Squires et al.
2001, pp. 9-10). On study sites on the western edge of the Greater
Yellowstone Ecosystem in Idaho, the subalpine fir vegetation series
that comprises lynx and snowshoe hare habitat was found only in small,
discontinuous patches (McDaniel and McKelvey 2004, pp. 15-18). In this
study area, few stands supported snowshoe hare densities similar to
areas known to support lynx (McKelvey and McDaniel 2001, pp. 11-18).
Therefore, because the habitat is of lower quality as indicated by the
low numbers of lynx and snowshoe hares, we did not consider the habitat
within the Greater Yellowstone Ecosystem to have the features that are
essential for the conservation of lynx.
Native lynx were functionally extirpated from their historic range
in Colorado and southern Wyoming in the Southern Rocky Mountains by the
time the lynx was listed in 2000. In 1999, the State of Colorado began
an intensive effort to reintroduce lynx. Although it is too early to
determine whether the introduction will result in a self-sustaining
population, the reintroduced lynx have produced kittens and now are
distributed throughout the lynx habitat in Colorado and southern
Wyoming. These animals are not designated as experimental under section
10(j) of the Act. Although Colorado's reintroduction effort is an
important step toward the recovery of lynx, we determined that the
Southern Rockies does not have features that are essential to the
conservation of lynx and require special management.
Many areas within the contiguous United States have one or more
individual lynx records with no evidence of persistent, reproducing
lynx populations. It is possible some of these areas may support
undocumented persistent populations of lynx.

[[Page 66030]]

However, most of these records are likely a result of wide-ranging
dispersal events, occur in habitat that is less suitable for lynx than
in the core areas, and are mostly disjunct from areas that contain
persistent lynx populations. We consider these areas as secondary or
peripheral and their role in sustaining persistent lynx populations is
unclear; such areas may provide habitat to dispersing lynx, especially
when populations are extremely high and some of these animals may
eventually settle in areas capable of supporting lynx populations. We
do not believe these areas require special management for lynx.
Secondary and peripheral areas contain only periodic records of
lynx over time, and they lack evidence of reproducing lynx populations.
Habitat suitability for lynx has not been assessed throughout the
secondary and peripheral areas, so we are not certain whether the PCEs
are present. However, the relative lack of lynx records over time, and,
in particular the lack of evidence of reproducing populations, may
suggest that habitat (snowshoe hare densities, in particular) has not
been adequate historically, nor is it currently adequate, to support
reproducing lynx populations. Additionally, some of the peripheral
areas are naturally disjunct and support few historical records of
lynx.

Special Management Considerations or Protections

We believe the areas designated as critical habitat in this final
rule will require some level of management and/or protection to ensure
the conservation of the lynx; the General Management Plans for the
National Parks designated lack direction specific to conserve lynx. The
areas we designated are components of the areas containing the features
essential to the conservation of lynx, which provide connectivity to
the larger lynx populations in Canada. This connectivity is important
to maintain, as the conservation of lynx in the United States may not
be possible without it. The designation of critical habitat does not
imply that lands outside of critical habitat do not play an important
role in the conservation of the lynx. Federal activities outside of
critical habitat are still subject to review under section 7 of the Act
if they may affect the lynx or its critical habitat (such as activities
on Federal lands, Clean Water Act permits, etc.). Prohibitions of
section 9 of the Act also continue to apply both inside and outside of
designated critical habitat. A detailed discussion of threats to the
lynx and its habitat can be found in the final listing rule (65 FR
16052, March 24, 2000) and the clarification of findings (68 FR 40076,
July 3, 2003).

Critical Habitat Designation

We are designating three units as critical habitat for the lynx
(Table 1). The critical habitat areas described below constitute our
best assessment at this time of areas: (1) Determined to be occupied at
the time of listing, (2) contain the primary constituent elements
essential for the conservation of the species, and (3) possibly
requiring special management. The three areas designated as critical
habitat are Voyageurs National Park in Minnesota, portions of Glacier
National Park in Montana, and portions of North Cascades National Park
in Washington. To further understand the location of these designated
areas, please see the associated maps found within this final rule
(also available at our Web site: http://mountain-prairie.fws.gov/species/mammals/lynx/
).

Table 1. Critical Habitat Units designated for the lynx. Area
Proposed for Designation includes the area meeting the definition of
critical habitat for the lynx (see the November 9, 2005 (70 FR 68294)
proposed rule for a detailed description). Excluded Area includes the
area excluded from the final critical habitat designation. Area
Designated includes the final designated area.

----------------------------------------------------------------------------------------------------------------
Area proposed for
Critical habitat units designation km\2\ Excluded area Land ownership Area designated
(mi\2\) km\2\ (mi\2\) km\2\ (mi\2\)
----------------------------------------------------------------------------------------------------------------
Unit 1: Maine.................... 27,530 (10,633) 27,530 (10,633) None designated..... 0
Unit 2: Minnesota................ 9,183 (3,546) 8363 (3,229) Voyageurs National 822 (317)
Park.
Unit 3: Northern Rocky Mountains 9,192 (3,549) 5,594 (2,160) Glacier National 3598 (1,389)
(MT and ID). Park.
Unit 4: North Cascades........... 785 (303) 435 (168) North Cascades 348 (135)
National Park.
-------------------------------------- ------------------
Total........................ ................. ................. .................... 4,768 (1,841)
----------------------------------------------------------------------------------------------------------------

Below we provide a description of those lands being designated as
critical habitat for the Canada lynx in this final rule. Please refer
to the November 9, 2005 (70 FR 68294) proposed rule for a detailed
description of the lands proposed.

Unit 1: Maine

All lands essential to the conservation of the Canada lynx that
meet the definition of critical habitat have been excluded from this
unit pursuant to section 4(b)(2) of the Act. Please refer to the
Application of Section 3(5)(A) of the Endangered Species Act Exclusions
Under Section 4(b)(2) of the Act sections below.

Unit 2: Minnesota

Voyageurs National Park constitutes the lands designated as
critical habitat in this unit. All other lands that met the definition
of critical habitat have been excluded from this unit pursuant to
section 4(b)(2) of the Act. Please refer to the Application of Section
3(5)(A) of the Endangered Species Act Exclusions Under Section 4(b)(2)
of the Act sections below. This unit supports the PCE and requires
special management to address the lack of direction in the General
Management Plan specific to conserve lynx.

Unit 3: Northern Rocky Mountains

The lands of Glacier National Park above 4,000 ft (122 m) on the
west side of the Continental Divide and to the Park borders east of the
Continental Divide constitute the critical habitat designation in this
unit. All other lands that met the definition of critical habitat have
been excluded from this unit pursuant to section 4(b)(2) of the Act.
Please refer to the Application of Section 3(5)(A) of the Endangered
Species Act Exclusions Under Section 4(b)(2) of the Act sections below.
This unit supports the PCE and requires special management to address
the lack of direction in the General Management Plan specific to
conserve lynx.

Unit 4: North Cascades

The lands of North Cascades National Park above 4,000 feet
elevation east of the Cascade Crest, including Lake

[[Page 66031]]

Chelan National Recreation Area, constitute the critical habitat
designation in this unit. All other lands that met the definition of
critical habitat have been excluded from this unit pursuant to section
4(b)(2) of the Act. Please refer to the Application of Section 3(5)(A)
of the Endangered Species Act Exclusions Under Section 4(b)(2) of the
Act sections below. This unit supports the PCE and requires special
management to address the lack of direction in the General Management
Plan specific to conserve lynx.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once a proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; the results of a formal conference are typically
transmitted in a conference opinion. Conference opinions on proposed
critical habitat are typically prepared according to 50 CFR 402.14, as
if the proposed critical habitat were designated. We may adopt the
conference opinion as the biological opinion when the critical habitat
is designated, if no substantial new information or changes in the
action alter the content of the opinion (see 50 CFR 402.10(d)). As
noted above, any conservation recommendations in a conference report or
opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, and are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect the lynx or its designated
critical habitat will require section 7 consultation under the Act.
Activities on State, tribal, local or private lands requiring a Federal
permit (such as a permit from the Corps under section 404 of the Clean
Water Act or a permit under section 10(a)(1)(B) of the Act from the
Service) or involving some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation Administration, or
the Federal Emergency Management Agency) will also be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local or
private lands that are not federally-funded, authorized, or permitted,
do not require section 7 consultations.

[[Page 66032]]

Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Lynx and Its Critical Habitat

Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for lynx jeopardy analyses that
relies heavily on the importance of core area populations to the
survival and recovery of the lynx. The section 7(a)(2) analysis is
focused not only on these populations but also on the habitat
conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the lynx in a qualitative fashion without making distinctions
between what is necessary for survival and what is necessary for
recovery. Generally, if a proposed Federal action is incompatible with
the viability of the affected core area population(s), inclusive of
associated habitat conditions, a jeopardy finding is considered to be
warranted, because of the relationship of each core area population to
the survival and recovery of the species as a whole.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum is used to complete section 7(a)(2) analyses for
Federal actions affecting lynx critical habitat. The key factor related
to the adverse modification determination is whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for the lynx is appreciably reduced. Activities
that, when carried out, funded, or authorized by a Federal agency, may
affect critical habitat and therefore result in consultation for the
lynx include, but are not limited to:
(1) Actions that would reduce or remove understory vegetation
within boreal forest stands on a scale proportionate to the large
landscape used by lynx. Such activities could include, but are not
limited to, fuels treatment of forest stands. These activities could
significantly reduce the quality of snowshoe hare habitat such that the
landscape's ability to produce adequate densities of snowshoe hares to
support persistent lynx populations is at least temporarily diminished.
(2) Actions that would cause permanent loss or conversion of the
boreal forest on a scale proportionate to the large landscape used by
lynx. Such activities could include, but are not limited to,
recreational area developments; certain types of mining activities and
associated developments; and road building. Such activities could
eliminate and fragment lynx and snowshoe hare habitat.
(3) Actions that would increase traffic volume and speed on roads
that divide lynx critical habitat. Such activities could include, but
are not limited to, transportation projects to upgrade roads or
development of a new tourist destination. These activities could reduce
connectivity within the boreal forest landscape for lynx and could
result in increased mortality of lynx within the critical habitat
units, as lynx are highly mobile and frequently cross roads during
dispersal, exploratory movements or travel within their home ranges.
If you have questions regarding whether specific activities may
constitute destruction or adverse modification of critical habitat,
contact the Supervisor of the appropriate Ecological Services Field
Office (see list below).

------------------------------------------------------------------------
State Address Phone No.
------------------------------------------------------------------------
Minnesota..................... 4101 East 80th Street (612) 725-3548
Bloomington,
Minnesota 55425.
Montana....................... 585 Shepard Way (406) 449-5225
Helena, Montana
59601.
Washington.................... 11103 E. Montgomery (509) 893-8015
Drive Spokane,
Washington 99206.
------------------------------------------------------------------------

All of the units designated as critical habitat, as well as those
specific areas that have been excluded or that do not meet the
definition of critical habitat, contain features essential to the
conservation of the lynx. All units are within the geographic range of
the species, and all were occupied by the species at the time we last
formally reviewed the status of the species under the Act in 2003,
based on surveys and research documenting the presence and reproduction
of lynx (68 FR 40076, July 3, 2003). Federal agencies already consult
with us on activities in areas currently occupied by the lynx, or if
the species may be affected by the action, to ensure that their actions
do not jeopardize the continued existence of the lynx.

Application of Section 3(5)(A) of the Endangered Species Act

Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographical area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species, and (ii) which may require special
management considerations or protection. Therefore, areas within the
geographical area occupied by the species that do not contain the
features essential to the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographical
area occupied by the species that require no special management or
protection also are not, by definition, critical habitat.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans, as well as
management under Federal agency jurisdiction can provide protection and
management to avoid the need for designation of critical habitat. When
we consider a plan to determine its adequacy in protecting habitat, we
consider whether the plan, as a whole, will provide the same level of
protection that designation of critical habitat would provide. The plan
need not lead to exactly the same result as a designation in every
individual application, as long as the protection it provides is
equivalent, overall. In making this determination, we examine

[[Page 66033]]

whether the plan provides management, protection, or enhancement of the
PCE that is at least equivalent to that provided by a critical habitat
designation, and whether there is a reasonable expectation that the
management, protection, or enhancement actions will continue into the
foreseeable future. Each review is particular to the species and the
plan, and some plans may be adequate for some species and inadequate
for others.
During development of final critical habitat for the lynx, we first
determined which physical and biological features are essential to the
species' conservation and delineated the specific areas that contain
those features and recent verified records of lynx presence and
reproduction. Next, we refined the delineation of the designation to
include only those lands that contained essential features that require
special management or protection pursuant to the definition of critical
habitat in 3(5)(A) of the Act.
During this process, we identified several areas where current land
management results in no special management or protection being
necessary. These areas include National Forests that are covered under
a conservation agreement between us and the USFS (USFS and Service 2006
entire), or lands with management plans that adequately conserve the
lynx and its habitat.

National Forest Service Lands Covered by a Conservation Agreement for
Lynx

Since we proposed to list the lynx in 1999, the USFS has been an
active partner in lynx conservation and recovery. The cooperation of
the USFS in lynx conservation and recovery has been essential because
the USFS manages the majority of lynx habitat in the contiguous United
States. Thus, the USFS has substantial influence in addressing the
primary threat to lynx identified at time of listing, that of
inadequate regulatory mechanisms on Federal lands. The USFS was an
instrumental partner in the development of the Lynx Conservation and
Assessment Strategy (LCAS) (Ruediger et al. 2000, entire). The LCAS,
described in more detail below, constitutes the best available
information for conserving lynx. In 2000, we signed a conservation
agreement with the USFS wherein the USFS committed to largely avoiding
adverse effects to lynx until their LRMPs could be amended to
incorporate lynx conservation (USFS and Service 2000, entire). The
conservation agreement has been renewed twice (USFS and Service 2005
and 2006, entire). The 2006 agreement expires December 31, 2010, unless
renewed (USFS and Service 2006, p. 8).
At the time of this final rule, the conservation agreement applies
to all National Forests that have not yet amended their Land Resource
Management Plans (LRMPs) to provide measures for lynx conservation
(USFS and Service 2006, entire). The agreement applies to 31 national
forests (USFS and Service 2006, Table 1). Of these, we determined that
seven national forests meet the first prong of the definition of
critical habitat under 3(5)(A) of containing physical or biological
features essential to the conservation of lynx (see Table 2). Our next
step was to evaluate whether these areas may require special management
or protection pursuant to the definition of critical habitat in 3(5)(A)
of the Act. The conservation agreement ensures that these seven forests
will continue to be managed for lynx conservation by: (1) continuing to
manage these lands consistent with the LCAS until their LRMPs are
revised to provide guidance to conserve lynx, which we have determined
largely avoids adverse effects to lynx in the interim period (Service
2000, p. 47); and (2) ensuring sufficient conservation of the lynx and
its habitat upon revision of LRMPs with guidance to conserve lynx. All
projects in lynx habitat on USFS lands undergo section 7 review and we
have no indication the USFS is not adhering to the guidance in the
conservation agreement.

Table 2.--National Forests Covered by the Canada Lynx Conservation
Agreement Within Areas With Features Essential to the Conservation of
Lynx
------------------------------------------------------------------------
Critical habitat unit National forest
------------------------------------------------------------------------
North Cascades......................... Okanogan-Wenatchee National
Forest.
Flathead National Forest.
Helena National Forest.
Northern Rocky Mountains............... Idaho Panhandle National
Forests.
Kootenai National Forest.
Lewis and Clark National
Forest.
Lolo National Forest.
Minnesota.............................. None.
Maine.................................. None.
------------------------------------------------------------------------

The USFS is actively in the process of amending LRMPs in all the
forests listed above except for the Okanogan-Wenatchee National Forest.
Until such time as the plans are amended to provide guidance for lynx,
the USFS will largely avoid projects that would have any adverse
effects to lynx within these seven forests (USFS and Service 2006, p.
6). The more protective standards in the conservation agreement will be
implemented the longest in the Okanogan-Wenatchee National Forest,
where revision of the Forest Plan has recently been initiated. The
commitment to avoid adverse effects in the conservation agreement is
extremely protective of the lynx and its habitat, and is well beyond
any protections or conservation benefits that would result from the
designation of critical habitat. This is because under normal section
7, projects with adverse effects on lynx habitat could proceed without
modification as long as the adverse effects do not reach levels that
adversely modify critical habitat. According to the LCAS, projects that
adversely affect lynx habitat adversely affect lynx as well. Thus under
the conservation agreement, the vast majority of projects that
adversely affect lynx habitat cannot proceed until Forest Plans are
amended.
To determine the level of protection that lynx within the forests
identified in Table 2 (with the exception of the Okanogan-Wenatchee
National Forest as indicated above) are likely to receive upon LRMP
amendment, we analyzed three documents that constitute the best
available information on the subject. These documents are the USFS
draft Environmental Impact Statement for the Northern Rockies Lynx
Amendment (DEIS) (USFS 2004, entire); a biological

[[Page 66034]]

assessment prepared for the Northern Rockies Lynx Amendment (USFS 2005,
entire); and a supplement to the biological assessment (USFS 2006,
entire). On January 5, 2004, the USFS announced the availability of the
Draft Environmental Impact Statement (DEIS) that included a preferred
alternative to conserve lynx while addressing issues related to
wildland fire (USFS 2004, pp. 30-53). On November 23, 2005, the USFS
requested formal consultation from us on the effects of their proposed
action to amend management plans for 18 national forests to include
lynx conservation while addressing wildland fire issues (Kimbell 2005,
entire). We have not finalized our biological opinion but anticipate
doing so in early 2007. The proposed action in the USFS's biological
assessment indicates that the USFS will continue to conserve lynx
habitat in the future as they have over the past 6 years.
We have analyzed the proposed action in the Biological Assessment
(USFS 2005) for the purposes of this final rule to determine whether
the six forests within the Northern Rockies that we identified as
meeting the first prong of the definition of critical habitat are in
need of special management or protection pursuant to 3(5)(A) of the
Act. We have determined that the proposed LRMP amendments incorporate
substantial and relevant conservation measures from the LCAS, or the
equivalent thereof, based on updated information. Overall, the proposed
action would increase conservation for lynx over the direction in the
current LRMPs. Essential lynx habitat may be adversely affected by some
of the proposed actions, mostly from fire and fuels management and a
small amount of pre-commercial thinning activities. However, given
adherence to LCAS guidelines that are proposed, these adverse effects
would not amount to adverse modification, as the guidelines have been
written to avoid significant large scale effects. Furthermore, these
adverse effects are counterbalanced by a commitment to lynx
conservation that applies to 94 percent of lynx habitat within the six
Northern Rockies Forests containing the features essential to the
conservation of the lynx, which provides a net conservation benefit for
lynx.
Both the conservation agreement and the proposed plan amendments
that follow from the agreement address the single most important threat
identified at time of listing: the inadequacy of existing regulatory
mechanisms. The conservation agreement and proposed amendments ensure
that adequate habitat of sufficient quality is available to support the
long-term persistence of lynx populations on these seven forests and
would provide for connectivity between adjacent lynx populations in
Canada or the United States. The conservation agreement and proposed
amendments address the primary threat to the lynx (inadequate
regulatory measures) by addressing the major adverse impacts of Federal
land management on lynx, as well as several other potential impacts or
influences that do not rise to the level of a threat to the lynx. Thus,
special management or protection pursuant to 3(5)(A) of the Act is not
required for the seven national forests identified in Table 3. Because
Federal lands within these seven national forests do not meet the
definition of critical habitat pursuant to section 3(5)(A) of the Act,
we have not included these lands in the final critical habitat
designation.

Lands With Management Plans That Conserve Lynx

Several management plans have been amended or revised to
incorporate the lynx management strategy as outlined in the Lynx
Conservation Assessment and Strategy (LCAS) (Ruediger et al. 2000,
entire) or comparable programs. The USFS, Bureau of Land Management
(BLM), National Park Service (NPS), and the Service developed the LCAS
using the best available science specifically to provide a consistent
and effective approach to conserve lynx and lynx habitat on Federal
lands (Ruediger et al. 2000, p. 1). The overall goals of the LCAS were
to recommend lynx conservation measures, to provide a basis for
reviewing the adequacy of USFS and BLM land and resource management
plans with regard to lynx conservation, and to facilitate conferencing
and consultation under section 7 of the Act. The LCAS identifies an
inclusive list of 17 potential risk factors for lynx or lynx habitat
that may be addressed under programs, practices, and activities within
the authority and jurisdiction of Federal land management agencies. By
addressing these potential risk factors, the Federal agencies could
address the primary threat identified in the 2000 listing rule for the
lynx, that of inadequate regulatory mechanisms to protect lynx on
Federal lands.
The risks identified in the LCAS are based on effects to either
individual lynx, lynx populations, both, or lynx habitat. Potential
risk factors the LCAS addresses that may affect lynx productivity
include: timber management, wildland fire management, recreation,
forest/backcountry roads and trails, livestock grazing, and other human
developments (Ruediger et al. 2000, pp. 2-2--2-15). Potential risk
factors the LCAS addresses that may affect lynx mortality include:
trapping, predator control, incidental or illegal shooting, competition
and predation as influenced by human activities and highways (Ruediger
et al. 2000, pp. 2-15--2-17). Potential risk factors the LCAS addresses
that may affect lynx movement include: highways, railroads and utility
corridors, land ownership pattern, and ski areas and large resorts
(Ruediger et al. 2000, pp. 2-17--2-19). Other potential large-scale
risk factors for lynx addressed by the LCAS include: fragmentation and
degradation of lynx refugia, lynx movement and dispersal across shrub-
steppe habitats and habitat degradation by non-native and invasive
plant species (Ruediger et al. 2000, pp. 2-19--2-21).
The LCAS ensures the appropriate mosaic of habitat is provided for
lynx on Federal lands. To facilitate use of the LCAS in project
planning and allow for the assessment of the potential effects of a
project on an individual lynx, the USFS and BLM delineated Lynx
Analysis Units (LAUs). The scale of an LAU approximates the size of
area used by an individual lynx (25 to 50 mi\2\ (65 to 130 km\2\))
(Ruediger et al. 2000, p. 7-3). The LCAS recognizes that LAUs will
likely encompass both lynx habitat and other areas (e.g., lakes, low
elevation ponderosa pine (Pinus ponderosa) forest, and alpine tundra).
The LCAS provides habitat-related standards to address potential risks
include: (1) If more than 30 percent of lynx habitat in an LAU is
currently in unsuitable condition, no further reduction of suitable
condition shall occur as a result of vegetation management activities
by Federal agencies; (2) within an LAU, maintain denning habitat in
patches generally larger than 5 acres, comprising at least 10 percent
of lynx habitat; (3) maintain habitat connectivity within and between
LAUs; (4) management actions (e.g., timber sales, salvage sales) shall
not change more than 15 percent of lynx habitat within an LAU to an
unsuitable condition within a 10-year period; (5) pre-commercial
thinning will only be allowed when stands no longer provide snowshoe
hare habitat; (6) on Federal lands in lynx habitat, allow no net
increase in groomed or designated over-the-snow routes and snowmobile
play areas by LAU (Ruediger et al. 2000, pp. 7-3--7-9).
Lynx conservation depends on supporting boreal forest landscapes of
sufficient size to encompass the temporal and spatial changes in
habitat and snowshoe hare populations to

[[Page 66035]]

support interbreeding lynx populations or metapopulations over time. We
have determined that management plans that incorporate the LCAS provide
adequate management or protection for lynx because they meet the three
criteria identified above. Specifically--(1) the management plans have
been finalized and incorporate the provisions of the LCAS, which
provides the best scientifically-based conservation measures known for
lynx at this time; at a minimum, the incorporation of the LCAS
conservation measures to address risk factors affecting lynx
productivity into a management plan provides adequate management and
protection for lynx and features essential to the conservation of lynx;
(2) where Federal agencies and non-federal entities (including Tribes)
have amended or revised their management plans to incorporate
provisions of the LCAS, these provisions become the management
direction for that particular land base; conservation measures in the
LCAS are designed to be implemented at the programmatic and project
level scale; and (3) the land management entities have incorporated
provisions of the LCAS in order the provide for the conservation of the
lynx; the conservation measures in the LCAS are intended to conserve
lynx and to reduce or eliminate adverse effects from the spectrum of
management activities on Federal lands (or other lands where the
conservation measures are applied). At this time, there is no other
scientifically-based land management guidance available for lynx; these
management plans are in effect until future plan revisions or plan
amendments supercede the current plans.
We evaluated areas to determine if they meet the definition of
critical habitat by (1) containing physical or biological features
essential to the conservation of the lynx, and (2) if the essential
features may require special management or protection. We determined
that these lands did contain features essential to the conservation of
the lynx. However, based on the provisions in the LCAS beneficial to
the lynx, we determined that the essential features on lands covered by
management programs or plans that have been revised or amended to adopt
the LCAS do not require special management or protection and,
therefore, these lands do not meet the definition of critical habitat
pursuant to section 3(5)(A) of the Act. These lands, described below,
are not included in the designation:

Superior National Forest

The Superior National Forest located in northeastern Minnesota has
revised its Land and Resource Management Plan (LRMP) to include
specific measures to conserve lynx based on the LCAS (Ruediger et al.
2000, entire; USFS 2004a, Appendix E; USFS 2004b, p. 16; Service 2004,
p. 2). Much of the boreal forest habitat in northeastern Minnesota is
found on Superior National Forest (Service 2004, p. 28), and a large
proportion of the recent lynx records in Minnesota have been detected
on the Superior National Forest (Moen et al. 2004, p. 10; Minnesota DNR
2005 Web page). The revised LRMP went through stakeholder meetings,
section 7 consultation with the Service, and public review. The LRMP
will guide day-to-day management decisions for the next 15 years,
whereupon the LRMP will again undergo revision (USFS 2004a section 1,
pp. 2 and 4).
The Superior LRMP adopted the standards, guidelines, and objectives
of the LCAS (Ruediger et al. 2000, entire; McAllister 2002, entire)
that the USFS determined were appropriate and relevant to lynx
conservation in Minnesota, in consultation with the Service. To remove
redundancies with other management direction, the LRMP excluded certain
LCAS standards, guidelines, and objectives and reclassified some to
increase their potential to benefit lynx, to avoid confusion with terms
found elsewhere in the LRMP, and to allow for management flexibility
that would not compromise lynx conservation. In addition, it designated
the Boundary Waters Canoe and Wilderness Area as a Lynx Refugium, in
which natural processes will be the predominant determinant of lynx
habitat conditions with some active management that would be
``compatible with wilderness values'' (USFS 2004a, Appendix E, p. 5 and
section 3, p. 58).
The Superior National Forest has delineated Lynx Analysis Units
(LAUs) within which it applies the lynx conservation measures
prescribed in the LRMP. The LAUs are the smallest landscape scale
analysis units upon which direct, indirect, and cumulative effects
analyses for lynx will be performed (Ruediger et al. 2000, p. 7-2; USFS
2004a Appendix E, p. 4). They encompass lynx habitat (on all
ownerships) within the administrative unit that has been mapped (in
coordination with adjacent management agencies and the Service) using
specific criteria to identify appropriate vegetation and environmental
conditions (U.S. Forest Service 2004a Appendix E, p. 4).
On the basis of the conservation benefits afforded the lynx from
the measures in the approved, revised LRMP and the definition of
critical habitat contained in section 3(5)(A) of the Act, we have not
included those lands encompassed in LAUs mapped by the Superior
National Forest or delineated by the Forest as a Lynx Refugium in this
designation because we have determined that special management or
protection of these lands and the features essential to the
conservation of the lynx is not required. The Superior National Forest
manages its lands within the LAUs with measures to conserve lynx and
features essential to its conservation and takes into consideration
habitat conditions for lynx throughout a LAU regardless of land
ownership. Therefore, the numerous small non-federal inholdings within
the proclamation boundary of the Forest were removed from the
designation because, although such lands may support lynx habitat, they
have a negligible influence on the features essential to the
conservation of the lynx compared to the significant role of the
Superior National Forest lands.
Based on public comments and information received following the
publication of the proposed designation, we coordinated with the
Superior National Forest on those lands that remained within the
proposed designation. We reevaluated these lands relative to the LRMP
for the Superior National Forest to determine if the essential features
within these areas were being managed for and protected under the plan.
Based on our discussions with the National Forest and a further review
of the plan, we have determined that the features within these lands
are being adequately managed and protected for lynx conservation, and
therefore do not meet the definition of critical habitat pursuant to
section 3(5)(A) of the Act. As such, these lands have been removed from
the final designation of critical habitat for the lynx.

Garnet Resource Area, Bureau of Land Management

The BLM's Garnet Resource Management plan has been amended to
incorporate all provisions of the LCAS (BLM 2003, entire; Wilson 2004,
entire). The Garnet Resource Area supports blocks of boreal forest that
currently support lynx populations on the southern edge of the Northern
Rockies Unit. The amendment to the management plan went through public
review and consultation with us under

[[Page 66036]]

section 7 of the Act; a finding of no significant impact was issued by
BLM in 2004 (BLM 2003, entire; Wilson 2004, entire).
On the basis of the conservation benefits afforded the lynx and
features essential to its conservation from the measures in the amended
Garnet Resource Management Plan and the definition of critical habitat
contained in section 3(5)(A) of the Act, we have not included those
lands that are within the boundaries of the approved Garnet Resource
Management Plan in this designation of critical habitat for the lynx.
These lands, and essential features thereon, are being adequately
managed and protected for lynx and, as a result, do not meet the
definition of critical habitat pursuant to section 3(5)(A) of the Act.
Because the BLM already manages these lands, and features thereon,
consistent with lynx conservation, we have determined that no special
management or protection pursuant to section 3(5)(A) of the Act is
required.

Flathead Indian Reservation

The tribal lands in the Northern Rockies unit (portions of the
Flathead Indian Reservation) are managed by the Confederated Salish and
Kootenai Tribes (CSKT) under their Forest Management Plan that
incorporates the provisions of the LCAS (CSKT 2000, p. 285). On the
basis of the conservation benefits afforded the lynx from the measures
in the CSKT's Forest Management Plan and the definition of critical
habitat contained in section 3(5)(A) of the Act, we have not included
lands that are within the boundaries of the Flathead Indian Reservation
in this designation of critical habitat for the lynx. These lands, and
physical or biological features essential to the conservation of the
lynx thereon, are being adequately managed and protected for lynx and,
as a result, do not meet the definition of critical habitat. Because
the Tribes already manage these lands, and essential features thereon,
consistent with lynx conservation, no special management or protection
pursuant to section 3(5)(A) of the Act is required.

Spokane District, Bureau of Land Management

Small portions of lands administered by the BLM's Spokane District
are encompassed in the area containing features essential to the
conservation of the lynx in the North Cascades unit in Washington. The
BLM Spokane District Resource Management Plan was modified in 2003 to
incorporate all of the provisions of the LCAS through what is called
``Resource Management Plan Maintenance'' (BLM 2003, entire).
On the basis of the conservation benefits afforded the lynx and the
physical and biological features essential to its conservation from the
measures in the approved Spokane District Resource Management Plan
Maintenance and the definition of critical habitat contained in section
3(5)(A) of the Act, we have not included those lands that are within
the boundaries of the BLM's Spokane District Resource Management Plan
in this designation of critical habitat for the lynx. The BLM already
manages this area, and essential features thereon, consistent with lynx
conservation; therefore, special management or protection pursuant to
3(5)(A)of the Act is not required.
In summary, we find that these management plans protect essential
lynx features and habitat and provide appropriate management to provide
for the conservation of lynx and features essential to its
conservation. The management plans have been finalized and incorporate
the provisions of the LCAS, which, as described above provides the
best, scientifically-based conservation measures for lynx and features
essential to its conservation known at this time. Federal land and
resource management plans provide the overarching direction under which
Federal lands are managed until future plan revisions or plan
amendments supercede the current plans.
The conservation measures in the LCAS are intended to conserve lynx
and to reduce or eliminate adverse effects from the spectrum of
management activities on Federal lands (or other lands where the
conservation measures are applied). At this time, it constitutes the
best and only scientifically-based land management guidance available
for lynx. By not including areas in the designation that are already
being managed for lynx conservation, land managers are encouraged to
proactively institute lynx conservation measures and reduce
administrative effort and costs associated with engaging in
consultations for critical habitat pursuant to section 7 of the Act.

Exclusions Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, 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 determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he 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 that
determination, the Secretary is afforded broad discretion and the
Congressional record is clear that in making a determination under this
section, the Secretary has discretion regarding which factors will be
used and how much weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If an
exclusion is contemplated, then we must determine whether excluding the
area would result in the extinction of the species. In the following
sections, we address a number of general issues that we considered
relevant to the benefits of including and excluding lands. The text of
these sections applies to all lands that we have excluded from this
designation.

Conservation Partnerships on Non-Federal Lands

Most federally listed species in the United States will not recover
without the cooperation of non-federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995) and at least 80 percent of endangered or threatened species occur
either partially or solely on private lands (Crouse et al. 2002). Stein
et al. (1995) found that only about 12 percent of listed species were
found almost exclusively on Federal lands (that is, 90 to100 percent of
their known occurrences restricted to Federal lands) and that 50
percent of federally listed species are not known to occur on Federal
lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-federal landowners
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building
partnerships and promoting voluntary cooperation of landowners is
essential to understanding the status of species on non-federal lands
and is necessary to implement recovery actions such as reintroducing
listed species,

[[Page 66037]]

habitat restoration, and habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Four Cs philosophy--conservation through
communication, consultation, and cooperation. This philosophy is
evident in Service programs such as Habitat Conservation Plans, Safe
Harbor Agreements, Candidate Conservation Agreements, Candidate
Conservation Agreements with Assurances, and conservation challenge
cost-share. Many private landowners, however, are wary of the possible
consequences of encouraging endangered species to their property, and
there is mounting evidence that some regulatory actions by the Federal
Government, while well-intentioned and required by law, under certain
circumstances can have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996; Bean
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al.
2003). Many landowners fear a decline in their property value due to
real or perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor
endangered species represents a risk to future economic opportunities
(Main et al. 1999; Brook et al. 2003).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999; Bean
2002; Brook et al. 2003). The magnitude of this negative outcome is
greatly amplified in situations where active management measures (such
as reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002).
The Service believes that the judicious use of excluding specific
areas of non-federally owned lands from critical habitat designations
can contribute to species recovery and provide a superior level of
conservation than critical habitat alone. The Department of the
Interior's Four Cs philosophy--conservation through communication,
consultation, and cooperation--is the foundation for developing the
tools of conservation. These tools include conservation grants, funding
for Partners for Fish and Wildlife Program, the Coastal Program, and
cooperative-conservation challenge cost-share grants. Our Private
Stewardship Grant program and Landowner Incentive Program provide
assistance to private land owners in their voluntary efforts to protect
threatened, imperiled, and endangered species, including the
development and implementation of Habitat Conservation Plans.
Conservation agreements with non-Federal landowners (such as
Habitat Conservation Plans (HCPs), contractual conservation agreements,
easements, and stakeholder-negotiated State regulations) enhance
species conservation by extending species protections beyond those
available through section 7 consultations. In the past decade, we have
encouraged non-Federal landowners to enter into conservation
agreements, based on a view that we can achieve greater species
conservation on non-Federal land through such partnerships than we can
through coercive methods (61 FR 63854; December 2, 1996).

Educational Benefits of Critical Habitat

A benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. The designation can help focus and promote
conservation efforts by other parties by clearly delineating areas of
high conservation value for the lynx. In general, the educational
benefit of a critical habitat designation always exists, although in
some cases it may be redundant with other educational effects. For
example, Federal land management plans have significant public input
and may largely duplicate the educational benefit of a critical habitat
designation. This benefit is closely related to a second, more indirect
benefit: that designation of critical habitat would inform State
agencies and local governments about areas that could be conserved
under State laws or local ordinances.

General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process

The most direct, and potentially largest, regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation pursuant to section 7 of the Act to
ensure that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where a Federal action or ``nexus'' occurs--if there is no
Federal nexus, designation itself does not restrict actions that
destroy or adversely modify critical habitat. Second, it only limits
destruction or adverse modification. By its nature, the prohibition on
adverse modification is designed to ensure those areas that contain the
physical and biological features essential to the conservation of the
species or unoccupied areas that are essential to the conservation of
the species are not eroded. Critical habitat designation alone,
however, does not require specific steps toward recovery.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation would be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
reasonable and prudent alternatives to the proposed Federal action
would only be issued when the biological opinion results in a jeopardy
or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's
decision in Gifford Pinchot, the Service equated the jeopardy standard
with the standard for destruction or adverse modification of critical
habitat. The Court ruled that the

[[Page 66038]]

Service could no longer equate the two standards and that adverse
modification evaluations require consideration of impacts on the
recovery of species. Thus, under the Gifford Pinchot decision, critical
habitat designations may provide greater benefits to the recovery of a
species. However, we believe the conservation achieved through
implementing Federal land management plans, habitat conservation plans
(HCPs), or other habitat management plans is typically greater than
what would be achieved through multiple site-by-site, project-by-
project, section 7 consultations involving consideration of critical
habitat. This is especially true for lynx populations that require
differing successional stages of habitat juxtaposed appropriately
throughout large landscapes. The majority of lynx habitat is located on
large land ownerships, including Federal, State, county, conservation
organization, and private corporate forestlands, capable of influencing
forest management at a landscape-scale. Management plans or other
commitments on these large land holdings can commit resources to
implement long-term management and protection to particular habitat for
at least one, and possibly other, listed or sensitive species. Section
7 consultations only commit Federal agencies to prevent adverse
modification to critical habitat caused by the particular project; they
are not committed to provide conservation or long-term benefits to
areas not affected by the proposed project. Thus, in most cases, an HCP
or management plan which considers enhancement or recovery as the
management standard will always provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.

Benefits of Excluding Lands From Critical Habitat With Management Plans
or HCPs

The benefits of excluding lands with management plans or HCPs from
critical habitat designation include relieving landowners, communities,
counties, and States of any additional regulatory burden that might be
imposed by a critical habitat designation even if it is only the
administrative burden of confirming no harm to the critical habitat.
Most conservation plans take many years to develop and, upon
completion, are, in most cases, consistent with the recovery objectives
for listed species that are covered within the plan area. In fact,
designating critical habitat in areas covered by a pending conservation
plan or HCP could result in the loss of some species' benefits if
participants abandon the planning process, in part because of the
strength of the perceived additional regulatory compliance that such
designation would entail. For example, the time and cost of regulatory
compliance for a critical habitat designation do not have to be
quantified for the regulated public to perceive them as additional
Federal regulatory burden sufficient to discourage continued
participation in plans targeting listed species' conservation.
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability to
seek new partnerships with future plan participants including States,
counties, local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within approved
management plan areas are designated as critical habitat, it would
likely have a negative effect on our ability to establish new
partnerships to develop these plans, particularly plans that address
landscape-level conservation of species and habitats. For example, by
excluding these lands, we preserve our current partnerships and
encourage additional conservation actions in the future.
Furthermore, a Federal land management plan or an HCP application
must itself be consulted upon. Such a consultation would review the
effects of all activities covered by the management plan or HCP which
might adversely impact the species under a jeopardy standard, including
possibly significant habitat modification (see definition of ``harm''
at 50 CFR 17.3), even without the critical habitat designation.
Similarly, land management plans on private lands paid for by Federal
landowner incentive programs (e.g., NRCS Healthy Forest Reserve
Program, USFWS Landowner Incentive Program) must also be consulted
upon. In addition, Federal actions not covered by the management plan
or HCP in areas occupied by listed species would still require
consultation under section 7 of the Act even absent a critical habitat
designation and would be reviewed for possibly significant habitat
modification in accordance with the definition of harm referenced
above.
After consideration under section 4(b)(2) of the Act, specific
lands have been excluded from the designation of critical habitat for
the lynx. A detailed analysis of our exclusion of these lands under
section 4(b)(2) of the Act by critical habitat unit is provided in the
paragraphs that follow.

Relationship of Critical Habitat to Tribal Lands

Tribal lands included in the proposed designation were those of the
Houlton Band of Maliseet Indians, Aroostook Band of Micmac Indians,
Passamaquoddy Tribe, and Penobscot Indian Nation in the Maine unit and
Grand Portage Indian Reservation and Vermillion Lake Indian Reservation
in the Minnesota unit. The amount of tribal lands proposed was
relatively small in size (totaling approximately 223 km\2\ (86 mi\2\)
in the Maine unit and 192 km\2\ ( 74 mi\2\) in the Minnesota unit). As
previously mentioned, we contacted and met with a number of tribes to
discuss the proposed designation and we also received comments from
tribes requesting that their lands not be designated as critical
habitat because of their sovereign rights, in addition to concerns
about economic impacts and the effect on their ability to manage
natural resources.

Benefits of Inclusion

The benefit of including these tribal lands in critical habitat for
the lynx is low. The lands are fairly small in size relative to the
large landscape required to sustain the lynx population in these areas.
The larger landscape in Maine is lands managed for commercial forestry,
and in Minnesota the larger landscape is managed by the Superior
National Forest that has revised its forest plan to address the needs
for lynx. Therefore, although these tribal lands support lynx habitat
and the PCE, they have a minor role in lynx conservation compared to
the commercial forestlands in Maine and Superior National Forest in
Minnesota.

Benefits of Exclusion

In accordance with Secretarial Order 3206, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act'' (June 5, 1997); 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 relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we believe that fish, wildlife, and other natural resources
on tribal lands are better managed under tribal authorities, policies,
and programs than through Federal regulation wherever possible and
practicable. Such designation is often viewed by tribes as

[[Page 66039]]

an unwanted intrusion into tribal self governance, thus compromising
the government-to-government relationship essential to achieving our
mutual goals of managing for healthy ecosystems upon which the
viability of threatened and endangered species populations depend.
For example, through Federal grant programs, the Passamaquoddy
Tribe is conducting surveys and habitat models for lynx and snowshoe
hare, the Houlton Band of Maliseet Indians is conducting lynx surveys
and lynx habitat is being assessed on Grand Portage Reservation lands.
Information from these efforts will be used to inform management plans
or strategies to promote the conservation of lynx on Tribal lands.
Additionally, we received general comments from Tribes and/or
authorities representing the natural resource interests of Tribes
voicing their commitment to ensuring that lynx remain a viable part of
the ecosystem.

Benefits of Exclusion Outweigh Benefits of Inclusion

We believe that conservation of lynx can be achieved off of Tribal
lands within the critical habitat unit and on tribal lands with the
cooperation of Tribes. Given the importance of our government-to-
government relationship with Tribes, the benefit of maintaining our
commitment to the Executive Order by excluding these lands outweighs
the benefit of including them in critical habitat. Therefore, Tribal
lands have not been designated as critical habitat pursuant to section
4(b)(2) of the Act.

Unit 1 (Maine)

Lands Managed for Commercial Forestry

This category of specific properties include private lands on which
timber is grown, harvested, and processed for wood and wood fiber for
the manufacture of pulp and paper, and the production of solid and
engineered wood products. These lands are generally large in size and
comprise the majority of the lands in Maine we considered for inclusion
in our critical habitat designation.
Benefits of Inclusion
As previously discussed, we believe that there may be some
education benefits to designating critical habitat for lynx on lands
managed for commercial forestry. However, we believe that there is
already substantial awareness of the lynx and conservation issues
related to the lynx through the species being listed; through the
public review process for the critical habitat proposal; information
provided to the public from Maine Department of Inland Fisheries and
Wildlife, North Maine Woods Association; information provided from
University of Maine Department of Wildlife Ecology, Maine Cooperative
Fish and Wildlife Research Unit, and the Maine Cooperative Forestry
Research Unit; the Service's numerous contacts with Federal agencies
that may have projects in northern Maine; the State-listing process in
2006; and extensive media coverage on the status of the Canada lynx in
Maine.
Commercial forest lands in northern Maine are considered to be
occupied by the lynx. Detailed habitat maps and habitat models (Hoving
et al. 2004, p. 290, 2005, p. 747 Robinson 2006 pp. 107-119) and a lynx
occurrence database maintained by Maine Inland Fisheries and Wildlife
provide the Service with the most recent interpretation of the
distribution of lynx and their habitat. For Federal actions,
consultation under section 7 of the Act is required if an action may
affect the lynx or its habitat. Accordingly, there are few
opportunities for the Service to influence silviculture in Maine
through Section 7 of the Act, especially at a landscape scale. Forest
management and associated activities require no Federal permits, and
Federal funding is rarely employed on private forest lands. Since
listing the lynx in 2000, the Service has consulted on fewer than 50
projects in Maine under Section 7 of the Act. Consultation has been
limited primarily to small woodlot owners and tribes applying for
Federal assistance. All consultations were concluded informally with
fewer than five requiring any measures to conserve lynx. Most have been
small projects (less than 6 ha (15 ac)), are located on small
ownerships (less than 202 ha (500 ac)), and were located on the
periphery of the lynx range in Maine. Given the historically low level
of consultations, the opportunity to address forestry practices on
private lands managed for commercial forestry, especially at a large
landscape scale, through consultation is limited.
Accordingly, we believe the benefits of inclusion are few. Because
of our limited opportunities to consult under section 7 we believe we
will achieve greater benefit from the ongoing management and
partnerships than from the regulation that results from designating
critical habitat on private lands in northern Maine. Maintaining a
strong working relationship with both the State and private landowners
is essential to ensuring continued voluntary management that conserves
lynx, past and continuing voluntary forest management has been and
continues to be beneficial to lynx in Maine. Timber salvaging
associated with the eastern spruce budworm (Choristoneura fumiferana)
outbreak of 1972 to 1986 resulted in hundreds of thousands of acres of
clearcuts, which created contiguous stands of regenerating spruce-fir
as large as 2,023 ha (5,000 ac) across much of northern Maine. These
areas are now in an advanced stage of regeneration and support high
hare densities (Fuller and Harrison 2005, p. 716; Homyack et al. 2006;
Robinson 2006, p. 9), which is sustaining the lynx population (Hoving
et al. 2004, pp. 291-292; Fuller 2006, pp. 36-47; Robinson 2006, p.
122). Spruce budworm salvage created extensive mosaics of habitat
within Maine that support lynx and features essential to the
conservation of the lynx, such as structure for denning and dense
understories within boreal forest able to support snowshoe hares and
lynx. These optimal habitat conditions will persist for the next 10 to
15 years until the regenerating clearcut stands mature to an age and
structure (~30 years old) when they will no longer provide optimal
habitat for hares and lynx.
Forest practices in Maine generally are favorable to lynx. For
example, many of the timber lands in Maine considered for inclusion in
lynx critical habitat are managed under forest certification programs
(e.g., Sustainable Forestry Initiative (SFI), Forest Stewardship
Council (FSC)) that require members to maintain coarse woody debris,
which provides lynx denning habitat (although denning habitat does not
seem to be limited in northern Maine). Land managers participating in
these programs are audited regularly for compliance (for example, Plum
Creek is SFI certified and was audited as recently as 2005).
The Huber Resource Corporation provided maps of current and future
lynx habitat based on the Maine Forest Products Council analysis (see
below). Currently, 36 percent of their 102,291 ha (252,766 ac) of
forest ownership is in large blocks of early successional softwoods
(spruce and fir). J. D. Irving concluded there would be no significant
change in the spatial arrangement or amount of habitat in the next 10
to 20 years (Gilbert 2006, p2). Plum Creek provided information to the
Service demonstrating that they have four lynx habitat units (47,000,
43,000, 33,000, and 30,000 acres) that contain optimal mid-regeneration
conditions for lynx in the Moosehead Lake area.
The Maine Forest Products Council provided a comprehensive lynx

[[Page 66040]]

landscape-level habitat analysis of current and future lynx habitat (20
years hence) for their member landowners and landowner representative
lands, which comprise the majority of the proposed critical habitat.
The map suggests that about 404,686 ha (1 million ac) of lynx habitat
currently exists in Maine and 404,686 ha (1 million ac) of future lynx
habitat will be present 20 years hence and widely distributed on the
landscape. Lynx habitat models for Maine (Hoving et al. 2004 , pp. 291-
292, 2005; Robinson 2006, p. 122) corroborate the fact that current
habitat is prevalent and widely distributed. We agree that lynx habitat
in Maine is abundant and widespread, and acknowledge that this is
largely due to management for timber harvest.
Most of the lands we considered for inclusion as lynx critical
habitat are in unorganized townships and within the jurisdiction of the
Maine Land Use Regulation Commission. Most of the area is zoned for
commercial forestry, and development is sparse except for a few
organized towns around the periphery of the proposed critical habitat.
The Maine Land Use Regulation Commission and Plum Creek have
recently shared plans with the Service for a proposed rezoning of about
172,396 ha (426,000 ac) in the Moosehead Lake area to implement a
concept plan to develop 975 new residential lots, resorts, and other
facilities covering approximately 1,497 ha (3,700 ac). Plum Creek is
offering mitigation in the form of a 162,684-ha (402,000-ac)
Conservation Framework, including a 108,860-ha (269,000-ac)
conservation easement (some donated) and 21,044 ha (52,000 ac) sale to
conservation groups. This is the largest development project in Maine's
history. The Maine Land Use Regulation Commission will make a
determination on the concept plan in 2007. The proposed developments
occur within the areas we considered for inclusion as lynx critical
habitat and include areas that are known to be occupied by lynx. Major
developments such as this proposal usually require Clean Water Act
permits, which provide a Federal nexus for a consultation under section
7 of the Act. Any Federal actions related to development of these lands
that may affect the lynx will undergo consultation between with the
Service and Federal permitting agencies. We believe the current scale
of the development project can be effectively evaluated through section
7 consultation in a way to protect lynx and conserve its habitat with
or without a critical habitat designation because the project is not
likely to be at a scale that would adversely modify the critical
habitat.
The area of the proposed lynx critical habitat is highly roaded
with small, single-lane, gravel or dirt logging roads. Road density
typically varies from 50-120 km of road/100km\2\ township (31-75 mi of
road/38mi\2\ township). Lynx road mortality (12 animals) documented in
Maine has occurred on logging roads (n = 9) and paved public roads (n =
3) (MDIFW, unpub. data). Most logging road mortality occurred on two-
lane haul roads where higher traffic volume and speed would occur. We
do not know if mortality is from forestry-related or visitor vehicles
because these roads are open to the public. Road complexes on
commercial forest land have largely been built out. It is unlikely that
a substantial number of new woods roads will be built in northwestern
Maine. It is also unlikely that roads will be upgraded or paved into
two-lane high speed roads that would increase risk to lynx. Road
building for forest purposes is exempt from Clean Water Act wetland
permits and thus, there is no Federal nexus to address forest roads
through Section 7. However, we do not anticipate an increase in forest
road building in northern Maine in the foreseeable future.
Benefits of Exclusion
Forest landowners in Maine expressed concerns about the stigma,
``shadow-effect,'' or uncertainty associated with imposing a new far-
reaching Federal regulation on their lands. Until recently, the
traditional owners of large tracts of forest lands in northern Maine
were forest products companies with their own mills and their own
timberland base to supply fiber. Landowners expressed concerns that
another Federal regulation over their land would add a layer of
uncertainty that could affect land valuation, deter investors, or cause
hardships through costly litigation.
In addition, the current environment of timber land sales and mill
closures in Maine has led to efforts to conserve the north Maine woods.
Conservation groups have purchased conservation easements on hundreds
of thousands of acres of forestland. These easements are negotiated
with private timber companies to assure protection from development and
promote sustainable forestry and wildlife management. Most of these
easements have required significant Federal funds, especially from
Forest Legacy and the North American Wetland Conservation Act.
Currently, about 809,371 ha (2 million ac) of the of 2.6 million ha
(6.4 million ac) in Maine considered for inclusion in lynx critical
habitat are under permanent easements, with several hundred thousand
acres more under negotiation. Easement negotiations are often tenuous,
and several landowners expressed concern that designation of critical
habitat may create a Federal nexus that would discourage landowners
against accepting Federal funding and participating in future easement
negotiations. Maine Inland Fisheries and Wildlife expressed concerns
that if these landscape-level conservation efforts fail in the future
because of this perception, conservation of lynx will be set back.
Landowners expressed sincere concerns about the uncertainty of legal
actions related to a critical habitat designation and how this would
affect their interest in entering into future conservation easement
agreements.
The primary benefit of excluding corporate forest lands from
critical habitat is preserving the partnerships that have been and will
be developed to conserve habitat for the lynx. The Service believes
that partnerships and cooperative conservation have proved to be
beneficial in Maine and are the most effective means of achieving
conservation for the lynx on private lands. Partnerships have many
benefits, including access by researchers and State and Federal
biologists to private lands; cooperation with industry in funding
research, monitoring, and management; and development of forest
management plans on private lands.
Maine forest industry has demonstrated cooperation by providing
access to State and Federal wildlife agencies. For example, since 1999,
Clayton Lake Woodlands, Seven Islands, and J. D. Irving Limited
provided access and housing to Maine Inland Fisheries and Wildlife
biologists to conduct radio-telemetry studies of lynx. Many landowners
have granted permission for State and Federal biologists to conduct
winter snow tracking surveys for lynx. Many landowners have granted
permission for University of Maine graduate students to access lands to
conduct studies and assess snowshoe hare populations. Landowners have
also provided access to sensitive corporate data on forest stands to
help State and Federal agencies with lynx and hare research. Landowners
have suggested that future access to lands and data may be limited if
critical habitat is designated, which would preclude us from getting
valuable information on lynx distribution in Maine and which would be
counter to lynx recovery efforts.

[[Page 66041]]

Since 1975, corporate landowners have pooled research funds to
support research to improve forest management through the University of
Maine's Cooperative Forestry Research Unit. The Unit currently consists
of 27 members, including most of the large corporate landowners within
the Maine critical habitat unit. Since 2000, the effect of forest
management on snowshoe hares and lynx has been a research priority. The
Unit has joined the Service in funding six graduate students studying
forest management, hares, and lynx. Many landowners are also members of
the National Council for Air and Stream Improvement, Inc., which has
also provided substantial funding support for the aforementioned
research projects. The Maine Cooperative Fish and Wildlife Research
Unit and University of Maine Department of Wildlife Ecology have been
instrumental in conducting this research. These partnerships have
allowed open dialogue and productive information sharing between
landowners and Federal, State, and university biologists. Landowners
have expressed concerns that designating critical habitat could
jeopardize these valuable partnerships. These partnerships are
essential for conserving lynx in Maine.
The Maine Forest Products Council has represented Maine forest
industry for over 40 years and currently has about 400 member
companies. Collectively, their members own 2.2 million ha (5.4 million
ac) (~84 percent) of the land we considered for inclusion in lynx
critical habitat within Maine. Fourteen of their members own greater
than 20,234 ha (50,000 ac) and will have a significant role in
conserving current and future lynx habitat in Maine. The Council
received unanimous backing from their members to act on their behalf
and submitted comments to the Service regarding the critical habitat
proposal. Included in their comments was a proposal in the form of a
Conservation Strategy for the Canada Lynx in Maine. The strategy would
provide a 10-year commitment to forestry practices that maintain and
enhance lynx habitat by regenerating spruce fir forests, conducting a
landscape assessment of lynx habitat every 5 years, continuing to
support lynx and hare research, and meeting with the State and Federal
wildlife agencies annually to share information and discuss research
priorities. The specifics of this conservation strategy were provided
to the Service in a draft Memorandum of Understanding. While the MOU
has not yet been finalized it demonstrates the Council's commitment to
continued lynx conservation. According to the Strategy, at the end of
the 10-year period, the Council, Service, and State would conduct a
joint evaluation to determine if the lynx strategy should be renewed
for another 10-year period.
Maine forest industry's Conservation Strategy for the Canada Lynx
in Maine offers a framework for the Service to work in partnership with
forest landowners to achieve recovery for the lynx and provides
substantial benefits over what can be achieved through adverse
modification standards of critical habitat through section 7 of the
Act. The Strategy provides planning and cooperation at a landscape
level meaningful to lynx; allows the opportunity for coordination and
planning for lynx habitat across multiple land ownerships; allows
researchers access to corporate landscape-level habitat information;
and promotes continued funding support by corporate landowners for
habitat-related research that will inform future conservation planning.
Most importantly, the Strategy establishes a framework for landowners,
Federal and State governments and university researchers to work
together to protect and enhance lynx habitat in Maine while preserving
and enhancing Maine's working forest. The Service acknowledges that
forest practices have created the abundant lynx habitat in Maine today
and can continue to do so in the future.
Individual landowner lynx management plans are important for the
recovery of lynx in the Northeast. The Service's recovery outline for
the Canada lynx notes that ``timber harvest and associated activities
on non-federal lands exert the most influence to lynx habitat in the
Northeast and have created the favorable conditions that currently
exist for lynx and snowshoe hares in northern Maine'' (Service 2005, p.
9), and that one of the most important recovery actions needed is to
``establish management commitments in core areas that will provide for
adequate quality and quantity of habitat such that there is a
reasonable expectation that persistent lynx populations can be
supported * * * for at least the next 100 years.'' The Maine Forest
Products Council offers a memorandum of understanding or agreement
whereby the Service ``will work with and provide incentives to the
Council and its members to develop forest management plans whose
objectives are to promote the strategy and preserve Maine's working
forest environment.'' Our lynx recovery outline (Service 2005, p. 12)
provides a recovery action ``on non-Federal core areas, develop and
implement best management practices and long-term management agreements
for lynx with key State, private, and/or tribal forest managers.''
In July, 2006, the Natural Resources Conservation Service (NRCS)
and Service offered financial incentives to landowners to prepare lynx
management plans through the pilot Healthy Forest Reserve Program. NRCS
successfully enrolled three landowners in the Maine Unit, the
Passamaquoddy Tribe, the Maine Chapter of the Nature Conservancy, and
the Forest Society of Maine acting on behalf of a conservation easement
holder for the West Branch Project, which will result in lynx
management plans on 201,533 ha (498,000 ac), or about 8 percent of the
lands considered for inclusion in lynx critical habitat in Maine. Other
large landowners in Maine attended the Healthy Forest information
meetings and expressed interest in these kinds of programs. The Service
believes this demonstrates the interest and willingness of landowners
to step down the Maine Forest Products Council Strategy to individual
landowner plans, especially if Healthy Forest or other cooperative
conservation incentives are provided in the future.
The genuine commitment of Maine forest industry to develop
individual and collective lynx management plans represents a
significant benefit of excluding corporate forest landowners from the
critical habitat. The discussion of lynx habitat planning has been
greatly accelerated during our development of this critical habitat
rule. Throughout the process, the Maine forest industry has been open
and forthright about its commitments and its offer of a strategy, and
the memorandum of understanding documents this commitment. These
commitments may be off the table if critical habitat is designated,
which would be a major setback to lynx recovery. The Service believes
lynx forest management plans can conserve lynx at the landscape scales
meaningful to lynx and will be far more effective at achieving the
conservation essential to the recovery of lynx than small-scale site-
by-site evaluations of adverse modification in Section 7 consultations.
We have evaluated the recent past and current forestry practices
for lands managed for commercial forestry within the proposed
designation of critical habitat for the lynx in Maine and found that
they have produced a mosaic of lands important for lynz conservation.
We also recognize that it is unlikely federal section 7 consultations
could

[[Page 66042]]

achieve the same conservation and recovery benefits provided by these
voluntary activities. Based on this evaluation, we find that the
benefits of excluding these specific lands include: maintaining
relationships with existing partners, encouraging new partnerships with
landowners, and avoiding potential costly regulations having limited
conservation benefits. The preservation and/or initiation of
partnerships is essential for the conservation and recovery of lynx in
part because it is crucial to the ongoing research and surveys for
lynx, snowshoe hare, and lynx habitat relationships.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding lands managed for commercial forestry as
critical habitat outweigh the benefits of including them as critical
habitat for the lynx. As we discuss above, we believe that there would
be greater benefit from excluding lands managed for commercial forestry
from the final designation because it will maintain or encourage
partnerships and allow for continued access to these lands for research
and monitoring of lynx, snowshoe hares, and their habitat. Further, as
indicated in the final rule listing the lynx (March 24, 2000; 65 FR
16052), the primary threat to the lynx was the lack of Federal land
management plan guidance to conserve lynx. We have concluded that the
threats to the lynx in Maine have been ameliorated through voluntary
actions of the Maine Forest Products Council. In addition, the proposed
Conservation Strategy for the Canada Lynx in Maine, which covers more
than 85 percent of the lands containing features essential to the
conservation of the lynx in Maine demonstrates the Council's voluntary
commitment extends into the future. Subsequent lynx forest management
plans with individual landowners will further strengthen landscape-
level habitat protection. In addition, we believe that critical habitat
designation provides little gain in the way of increased public
recognition and education because of the information provided from
ongoing research and monitoring, material provided on various Web
sites, and other information provided to the public in Maine. We also
believe that there would be few, if any, little additional conservation
benefit realized through the regulatory burden of a critical habitat
designation on these lands under section 7 of the Act because Federal
actions are uncommon. Therefore, on the basis of the above discussion
and the conservation measures provided the lynx and features essential
to its conservation through the Maine Forest Products Council
Conservation Strategy for the Canada Lynx in Maine, we do not believe
that the exclusion of lands managed for commercial forestry in this
unit would result in the extinction of the lynx.

State Lands

State land ownership (about 225,441 ha (557,077 ac), or about 9
percent of the lands considered for inclusion in lynx critical habitat
in Maine) is comprised of Baxter State Park (83,137 ha (205,436 ac)),
Maine Department of Conservation Bureau of Parks and Lands (140,295 ha
(346,676 ac)), and Maine Inland Fisheries and Wildlife management areas
(2,009 ha (4,965 ac)). A small part of Baxter State Park, the
Scientific Forest Management Area, and many Bureau of Parks and Public
Lands lots are managed for sustainable forestry. Collectively, these
lands comprise a small part of the landscape occupied by lynx.
Benefits of Inclusion
We believe that there may be some education benefits to designating
critical habitat for lynx on State-owned lands. However, we believe
that there is already substantial awareness of the lynx and
conservation issues related to the lynx through the species being
listed, through the public review process for considering the lynx for
State listing in 2006, information provided from Maine Department of
Inland Fisheries and Wildlife, and research being conducted through the
University of Maine's Department of Wildlife Ecology, Cooperative Fish
and Wildlife Research Unit, and Maine Cooperative Forestry Research
Unit, and through the publication, and subsequent outreach and public
hearings for the proposed critical habitat.
Other benefits of including State lands in critical habitat are
low. Lands under State ownership are considered to be occupied by the
lynx. As such, Federal actions require consultation under section 7 of
the Act if the action may affect the lynx or its habitat. On these
State lands, it is uncommon for there to be a Federal action that
triggers consultation under section 7 of the Act, therefore little
benefit would be realized through section 7 consultation if such lands
were included in the designation. Since the lynx was listed in 2000,
there have been no consultations on Federal expenditures or permits on
State-owned lands in the area of Maine considered for inclusion in
critical habitat. Therefore, if there are few consultations, critical
habitat would not be of much benefit to lynx.
Further, the benefits of inclusion are low because of appropriate
current management of State lands. We believe the benefits of including
State lands managed for commercial forestry in the designation are low
due to recent past and current silviculture practices on managed State
lands that are similar to those on adjacent corporate forest land that
have created mosaics of habitat supporting lynx and features essential
to the conservation of the lynx, such as structure for denning and
dense understories within boreal forest able to support snowshoe hares
and lynx. At this time we have no specific evidence to suggest that
large-scale changes in these practices are planned on State lands.
Other State lands (the majority of Baxter State Park, Allagash
Wilderness Waterway, and other small State parks) are managed in a
``forever wild'' status. Given that lynx in Maine respond to young
forests regenerating from a disturbance, there is little opportunity to
manage for lynx in State parks unless natural disturbance regimes--
fire, insect infestation, wind throw--create habitat conditions
favorable to lynx. We are aware of no State policies or management in
State parks that would adversely modify critical habitat.
The Maine Bureau of Parks and Lands has an Integrated Resource
Policy (http://www.maine.gov/doc/parks/programs/planning/) that

requires 10-year management plans on public reserved and nonreserved
lands that require ``exemplary land management practices, including
silvicultural, wildlife, and recreation practices as a demonstration of
State policies governing forested and related types of lands.'' These
plans require identification of important wildlife areas, including a
policy to work with the Service and Maine Inland Fisheries and Wildlife
to conserve biodiversity and habitat for federally State-listed
endangered and threatened species. Plans for the Seboomook and
Flagstaff units and Allagash Wilderness Waterway (all considered for
inclusion as critical habitat) are under development. The Service is
unaware whether the plans being drafted incorporate habitat planning
for lynx, but we believe the State will incorporate habitat planning
for lynx per their policies.
Benefits of Exclusion
The primary benefit of excluding State lands from critical habitat
is the partnerships that have and will be

[[Page 66043]]

developed to conserve habitat for the lynx. The Service believes that
partnerships and cooperative conservation are the most effective means
of achieving conservation for the lynx on private lands. Partnerships
have many benefits, including funding research, monitoring, and
management; and development of forest management. The State of Maine
has been an excellent partner for lynx conservation.
The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2), we have determined that the
benefits of excluding State lands in the Maine Unit as critical habitat
outweigh the benefits of including them as critical habitat for the
lynx. As we discuss above, we believe there would be greater benefit
from excluding State lands because it will maintain or encourage
partnerships and allow for continued access to these lands for research
and monitoring of lynx, snowshoe hares and their habitat. Further, as
indicated in the final rule listing the lynx (March 24, 2000; 65 FR
16052), the primary threat to the lynx was the lack of Federal land
management plan guidance to conserve lynx. We believe that the threats
to the lynx have been ameliorated because of the Maine Bureau of Parks
and Lands policy to manage parks for multiple-use, including managing
habitat for endangered species, and requiring the development of
management plans. In addition, we believe that critical habitat
designation provides little gain in the way of increased public
recognition and education because of the information provided from
ongoing research and monitoring, material provided on various Web sites
and other information provided to the public in Maine. We also believe
that there would be little additional conservation benefit realized
through the regulatory burden of a critical habitat designation on
these lands under section 7 of the Act because Federal actions are
uncommon. Therefore, on the basis of the above discussion and the
conservation measures required by the policies of the Maine Bureau of
Parks and Lands, we do not believe that the exclusion of State lands in
this unit would result in the extinction of the lynx.

Lands Owned by the Nature Conservancy

Lands owned by The Nature Conservancy (over 80,937 ha (200,000 ac),
or about 3 percent of the lands considered for inclusion in critical
habitat within Maine) are comprised of the St. John River unit,
Katahdin Forest, and Debsconeag Lakes unit. In addition, The Nature
Conservancy is the conservation easement holder on several hundred
thousand acres of private commercial forest land within the area
proposed as critical habitat in Maine.
Benefits of Inclusion
We believe that there may be some education benefits to designating
critical habitat for lynx on lands owned by The Nature Conservancy in
the Maine Unit. However, we believe that there is already substantial
awareness of the lynx and conservation issues related to the lynx
through the species being listed, through the public review process for
considering the lynx for State listing in 2006, information provided
from Maine Department of Inland Fisheries and Wildlife, and research
being conducted through the University of Maine's Department of
Wildlife Ecology, Cooperative Fish and Wildlife Research Unit, and
Maine Cooperative Forestry Research Unit, and through the publication,
and subsequent outreach and public hearings for the proposed critical
habitat.
Lands owned by The Nature Conservancy are considered to be occupied
by the lynx. For Federal actions, consultation under Section 7 of the
Act is required if the action may affect the lynx or its habitat. On
these lands, it is uncommon for there to be a Federal action that
triggers consultation under section 7 of the Act, therefore little
benefit would be realized through section 7 consultation if such lands
were included in the designation. Since the lynx was listed in 2000,
there have been no consultations on Federal expenditures or permits on
The Nature Conservancy lands in Maine. Therefore the benefit of
including The Nature Conservancy lands is low because there is seldom a
Federal action on these lands.
The benefit of inclusion of The Nature Conservancy lands is also
low because of ongoing management of the lands for conservation. The
Nature Conservancy is committed to continued forest management on their
largest 72,843-ha (180,000-ac) ownership in the upper St. John River
region. The Conservancy's management plan includes plans for
maintaining lynx habitat. The Conservancy recently enrolled its St.
John River lands in the Healthy Forest Reserve Program and is committed
to developing a forest management plan using Canada lynx as an umbrella
species for young forest species and pine marten as an umbrella species
for mature forest species. The plan will incorporate lynx management
guidelines and will be developed with the cooperation of The Forest
Society of Maine, University of Maine Department of Wildlife Ecology,
Maine Inland Fisheries and Wildlife, and the Service. We believe the
benefits of including managed lands in the designation are low because
the recent past and current forestry practices on Conservancy lands are
similar to those on adjacent corporate forest land, which have created
mosaics of habitat supporting lynx and features essential to the
conservation of the lynx, such as structure for denning and dense
understories within boreal forest able to support snowshoe hares and
lynx. At this time we have no specific evidence to suggest that large-
scale changes in these practices are planned. Other Conservancy lands
(the majority of Debsconeag Lakes Unit, 16,592 ha (41,000 ac) will be
managed in a ``forever wild'' status as ecological reserves. We are
aware of no Conservancy policies or management in their ecological
reserve lands that would adversely modify critical habitat.
Benefits of Exclusion
The Conservancy has policies regarding biodiversity and endangered
species conservation (http://www.nature.org) that compliment the State and

Service missions to conserve endangered wildlife. The Service has no
reservations about the quality of lynx habitat conservation plans that
The Nature Conservancy will develop for their lands in Maine.
Therefore, the Service believes that its ongoing partnership with The
Nature Conservancy will be improved from the exclusion of these lands
from critical habitat.
Benefits of Exclusion Outweigh Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding The Nature Conservancy lands in Maine as
critical habitat outweigh the benefits of including them as critical
habitat for the lynx. As discussed above, we believe there would be
greater benefit from excluding The Nature Conservancy lands because it
will maintain or encourage partnerships and allow for continued access
to these lands for research and monitoring of lynx, snowshoe hares and
their habitat. Further, as indicated in the final rule listing the lynx
(March 24, 2000; 65 FR 16052), the primary threat to the lynx was the
lack of Federal land management plan guidance to conserve lynx. We
believe that the threats to the

[[Page 66044]]

lynx have been ameliorated because of The Nature Conservancy policies
to manage their lands for biodiversity and endangered species. In
addition, we believe that critical habitat designation provides little
gain in the way of increased public recognition and education because
of the information provided from ongoing research and monitoring,
material provided on various Web sites and other information provided
to the public in Maine. We also believe there would be little
additional conservation benefits realized through the regulatory burden
of a critical habitat designation on these lands under section 7 of the
Act because Federal actions are uncommon. Therefore, on the basis of
the above discussion and the conservation measures required by the
policies of The Nature Conservancy, we do not believe that the
exclusion of Conservancy lands in this unit would result in the
extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

Lands owned by small landowners and lands not managed for
commercial forestry (about 100,128 ha (247,421 ac), or about 4 percent
of the area considered for inclusion in lynx critical habitat in Maine)
are primarily comprised of small woodlot owners near the towns of
Ashland, Millinocket, Eagle Lake, Smyrna Mills, and Greenville. Such
lands also include National Park Service lands consisting of a linear
buffer along the Appalachian Trail to its northern terminus at Mt.
Katahdin. Collectively, these lands comprise a small percentage of the
area occupied by lynx.
Benefits of Inclusion
We believe that there may be some education benefits to designating
critical habitat for lynx on lands owned by small landowners and other
lands not managed for commercial forestry in Maine. However, we believe
that there is already substantial awareness of the lynx and
conservation issues related to the lynx through the species being
listed, through the public review process for considering the lynx for
State listing in 2006, information provided from Maine Department of
Inland Fisheries and Wildlife, and research being conducted through the
University of Maine's Department of Wildlife Ecology, Cooperative Fish
and Wildlife Research Unit, and Maine Cooperative Forestry Research
Unit, and through the publication, and subsequent outreach and public
hearings for the proposed critical habitat.
Lands owned by small landowners and lands not managed for
commercial forestry are considered to be occupied by the lynx. As such,
for Federal actions, consultation under section 7 of the Act is
required if those actions may affect the lynx or its habitat. On these
lands it is uncommon for there to be a Federal action that triggers
consultation under section 7 of the Act, therefore little benefit would
be realized through section 7 consultation if such lands were included
in the designation. Maine averages about 10 to 15 consultations per
year that involve Canada lynx. Most of these lynx consultations in
Maine have involved small landowners (less than 121 ha (300 ac)
ownerships) requesting Federal assistance through the Natural Resource
Conservation Service's Wildlife Habitat Incentive Program or Maine
Forest Service's Woodswise Program (U.S. Forest Service funding).
Nearly all of these forestry projects are small (less than 4 ha (10
ac)), occur around the periphery of the Maine Unit, and have no adverse
effects on lynx because of the small scale and nature of the projects.
Because actions on these lands rarely, if ever, adversely affect lynx,
designation of critical habitat would be of little conservation value.
We believe the benefits of including these lands in the designation
are low because such lands are fairly small in size relative to the
large landscape required by an individual lynx to support its home
range. Therefore, although such lands may support lynx habitat, they
have a negligible influence on the features essential to the
conservation of the lynx, especially compared to the significant role
of the corporate lands managed for commercial forestry.
Benefits of Exclusion
We have evaluated lands owned by small landowners and lands not
managed for commercial forestry within the proposed designation of
critical habitat for the lynx. Based on this evaluation, we find that
the benefits of excluding these specific lands include maintaining
relationships with landowners and a reduction of potential regulations
having limited conservation benefits. Partnerships are essential for
the conservation and recovery of lynx, in part because they are crucial
to the ongoing research and surveys for lynx, snowshoe hare, and lynx
habitat relationships. The educational benefits of critical habitat,
including informing the public of areas that are essential for the
long-term conservation of the lynx, are still accomplished from ongoing
research and surveys as discussed above, various Web sites, and through
public notice-and-comment procedures.

Benefits of Exclusion Outweigh Benefits of Inclusion

Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding small landowners and lands not managed
for forestry in Maine as critical habitat outweigh the benefits of
including them as critical habitat for the lynx. As discussed above, we
believe there would be greater benefit from excluding these lands
because it will maintain or encourage partnerships and allow for
continued access to these lands for research and monitoring of lynx,
snowshoe hares and their habitat. Further, as indicated in the final
rule listing the lynx (March 24, 2000; 65 FR 16052), the primary threat
to the lynx was the lack of Federal land management plan guidance to
conserve lynx. We believe that critical habitat designation provides
little gain in the way of increased public recognition and education
because of the information provided from ongoing research and
monitoring, material provided on various Web sites and other
information provided to the public in Maine. We also believe that there
would be little additional conservation benefits realized through the
regulatory burden of a critical habitat designation on these lands
under section 7 of the Act because Federal actions are uncommon and
because of the small scale, adverse modification is very unlikely.
Therefore, on the basis of the above discussion, we do not believe that
the exclusion of small landowners and lands not managed for forestry in
this unit would result in the extinction of the lynx.

Unit 2 (Minnesota)

Lands Managed for Commercial Forestry

This category of specific properties includes private, county, and
State lands on which timber is grown, harvested, and processed for wood
and wood fiber for the manufacture of pulp and paper, and the
production of solid and engineered wood products. These lands
constitute a relatively large land base within the area considered for
inclusion as critical habitat, and are generally adjacent to the much
larger Superior National Forest, which supports the majority of lands
containing features essential to the conservation of the lynx in
Minnesota.

[[Page 66045]]

Benefits of Inclusion
As previously discussed, we believe there may be some education
benefits to designating critical habitat for lynx on lands managed for
commercial forestry. However, we believe there is already substantial
awareness of the lynx and conservation issues related to the lynx
through the species being listed, through the public review process for
revision and implementation of the Superior National Forest Land and
Resource Management Plan, information provided by Minnesota Department
of Natural Resources (http://www.dnr.state.mn.us/ecological_services/nhnrp/research/lynx_sightings.html
), research being conducted by the

University of Minnesota's Natural Resources Research Institute (http://www.nrri.umn.edu/lynx/
), and through the publication of the proposed

critical habitat and associated outreach and public hearings.
Lands under this category are considered to be occupied by the
lynx. As such, for Federal actions, consultation under section 7 of the
Act is required if those actions may affect the lynx or its habitat.
Some forestry practices may affect the lynx or its habitat. However,
the ability to address such forestry practices through consultation is
limited because, since the lynx has been listed, instances where a
Federal action occurred on non-federal lands managed for commercial
forestry that would trigger consultation under section 7 of the Act
have been infrequent, therefore, the benefit of including these lands
is low.
Further, we believe the benefits of including these lands in the
designation are low because of recent past and current forestry
practices that have created a mosaic of differing successional boreal
forest stages within this unit. Some components of this mosaic support
lynx and features essential to the conservation of the lynx, including
dense understories within boreal forest able to support snowshoe hares
and lynx and structure for denning. At this time we have no specific
evidence to suggest that large-scale changes in these practices are
planned. Thus, because of the limited Federal nexuses and the recent
past and current forestry practices, we believe there would be little
benefit obtained from including these lands in the designation.
Many of the lands managed for commercial forestry are enrolled in
the Sustainable Forestry Initiative (SFI) program. The SFI program,
which is described in more detail above in response to comment number
8, has a number of principles and objectives that generally pertain to
overall forest health. The SFI objective that is most pertinent to lynx
conservation is ``To manage the quality and distribution of wildlife
habitats and contribute to the conservation of biological diversity by
developing and implementing stand- and landscape-level measures that
promote habitat diversity and the conservation of forest plants and
animals, including aquatic fauna.'' As discussed above, recent past and
current forestry practices have created a mosaic of differing
successional boreal forest stages within this unit that supports lynx
and features essential to the conservation of the lynx; SFI
participation has provided some oversight for these land management
activities. Thus, because SFI participation has partially been
responsible for the forestry practices that have created the extensive
mosaic of lynx habitat in this unit, we believe there would be little
benefit from including these lands in the designation.
Finally, the primary factor causing the lynx to be listed was
inadequate regulatory mechanisms on Federal lands. In Minnesota, the
Superior National Forest lands are the most important for the
conservation of lynx because they support the majority of lynx
occurrence records and lynx habitat containing the features essential
to the conservation of lynx. Since the lynx was listed, the Superior
National Forest has revised its Land and Resource Management Plan to
incorporate conservation measures for lynx (see 3(5)(A) discussion
above). Because factors on non-Federal lands played a subordinate role
in the listing and conservation of the lynx compared to National Forest
and BLM lands, we believe there is little benefit of including non-
Federal lands managed for commercial forestry in the designation.
Benefits of Exclusion
We have evaluated the recent past and current practices for lands
managed for commercial forestry within the proposed designation of
critical habitat for the lynx. Based on this evaluation, we find that
the benefits of excluding these specific lands include maintaining
relationships with existing partners and encouraging the potential
establishment of new partnerships with public and private landowners.
Partnerships are essential for the conservation and recovery of lynx in
part because it is crucial to the ongoing research and surveys for
lynx, snowshoe hare, and lynx habitat relationships. For example, these
landowners allow lynx researchers access to their lands, without access
to these lands, research and monitoring that inform our understanding
of lynx ecology would be severely restricted. The educational benefits
of critical habitat, including informing the public of areas that are
essential for the long-term conservation of the lynx, are still
accomplished from ongoing research and surveys as discussed above and
outreach.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding lands managed for commercial forestry as
critical habitat outweigh the benefits of including them as critical
habitat for the lynx. As we discuss above, we believe that there would
be greater benefit from excluding lands managed for commercial forestry
from the final designation because it will maintain or encourage
partnerships and allow for continued access to these lands for research
and monitoring of lynx, snowshoe hares and their habitat. Further, as
indicated in the final rule listing the lynx (March 24, 2000; 65 FR
16052) the primary threat to the lynx was the lack of Federal land
management plan guidance to conserve lynx. We believe that within this
unit the threats to the lynx have been ameliorated because the Superior
National Forest, which supports the majority of lands containing
features essential to the conservation of the lynx in this unit, has
revised its LRMP to provide conservation measures for the lynx. Thus,
while non-Federal lands managed for commercial forestry provide habitat
for lynx, they only supplement those lynx management efforts on
Superior National Forest. In addition, we believe that critical habitat
designation provides little gain in the way of increased public
recognition and education. The public may become aware of the location
and importance of lynx habitat via the information provided from
ongoing research and monitoring, information provided to the public
(e.g., on various Web sites), and from the publication of the proposed
critical habitat and associated outreach and public hearings. We also
have concluded that there would be little additional conservation
benefits realized through the regulatory burden of a critical habitat
designation on these lands under section 7 of the Act because Federal
actions are uncommon. Therefore, on the basis of the above discussion
and the conservation

[[Page 66046]]

measures provided the lynx and features essential to its conservation
through the Superior National Forest, we do not believe that the
exclusion of lands managed for commercial forestry in this unit would
result in the extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

This category of specific properties includes private, county,
municipal, National Monument, and State lands that have a myriad of
uses and individually are small compared to the large spatial scale
required by lynx. Cumulatively, these lands constitute a limited land
base within the proposed critical habitat unit compared to the Superior
National Forest lands and are scattered throughout the proposed unit.
Benefits of Inclusion
As previously discussed, we believe that there may be some
educational benefits to designating critical habitat for lynx on non-
Federal lands not managed for commercial forestry. However, we believe
that there is already substantial awareness of the lynx and
conservation issues related to the lynx as a result of ongoing outreach
conducted by the Service and its partners.
Lands under this category are considered to be occupied by the
lynx. As such, for actions having a Federal nexus, consultation under
section 7 of the Act is required if a Federal action may affect the
lynx or its habitat. Federal actions having adverse affects on lynx on
these lands may be addressed through a section 7 consultation. Since
the lynx was listed the opportunity to address such actions through
consultation has been limited because there is infrequently a Federal
nexus on these lands. Therefore, the benefit of designation of these
lands as critical habitat is low because there are few instances in
which a Federal nexus occurs.
Further, we believe the benefits of including these lands in the
designation are low because such lands are fairly small in size
relative to the large landscape required by an individual lynx to
support its home range and they are scattered throughout the proposed
unit. Therefore, although such lands may support lynx habitat, they
have a minor influence on the features essential to the conservation of
the lynx, especially compared to the significant role of the Superior
National Forest lands. Thus, due to the negligible affect of these
small properties and lands not managed for commercial forestry on the
features essential to the conservation of lynx and the infrequency of
Federal actions we believe that there would be little benefit obtained
from including these lands in the designation.
Benefits of Exclusion
We have evaluated lands not managed for commercial forestry within
the proposed designation of critical habitat for the lynx. Based on
this evaluation, we find that the benefits of excluding these specific
lands include maintaining the potential to develop relationships with
landowners. Partnerships are essential for the conservation and
recovery of lynx in part because it is crucial to the ongoing research
and surveys for lynx, snowshoe hare, and lynx habitat relationships.
These landowners allow researchers access to their lands, without
which, research and monitoring would be hampered. As previously
discussed, we believe that there may be some educational benefits to
designating critical habitat for lynx on small properties and lands not
managed for commercial forestry. However, we believe that there is
already substantial awareness of the lynx and conservation issues
related to the lynx as a result of ongoing outreach conducted by the
Service and its partners.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding lands not managed for commercial
forestry as critical habitat outweigh the benefits of including them as
critical habitat for the lynx. As we discuss above, we believe that
there would be greater benefit from excluding these smaller properties
and lands not managed for commercial forestry from the final
designation because it will maintain relationships and allow for
continued access to these lands for research and monitoring of lynx,
snowshoe hares and their habitat. Further, as indicated in the final
rule listing the lynx (March 24, 2000; 65 FR 16052) the primary threat
to the lynx was the lack of Federal land management plan guidance to
conserve lynx. We believe that within this unit the threats to the lynx
have been ameliorated because the Superior National Forest, which
supports the majority of lands containing features essential to the
conservation of the lynx in this unit, has revised its LRMP to provide
conservation measures for the lynx. Smaller land holdings that are not
managed for commercial forestry have a minor influence on the features
essential to the conservation of lynx compared to the National Forest
lands. In addition, we believe that critical habitat designation
provides little gain in the way of increased public recognition and
education because of the information provided from ongoing research and
monitoring. We also believe that there would be little additional
conservation benefits realized through the regulatory burden of a
critical habitat designation on these lands under section 7 of the Act
because Federal nexuses are uncommon. Therefore, on the basis of the
above discussion and the conservation measures provided the lynx and
features essential to its conservation through the Superior National
Forest, we do not believe that the exclusion of lands not managed for
commercial forestry in this unit would result in the extinction of the
lynx.

Unit 3 (Northern Rockies--(Montana and Idaho))

Montana Department of Natural Resources and Conservation Forested Trust
Land Habitat Conservation Plan (MDNRC HCP)

The MDNRC HCP encompasses 241,108 ac (377 mi\2\) (97,573 ha/976
km\2\) of State Forested Trust lands distributed throughout
northwestern, southwestern and central Montana. Lynx have been
documented to occur throughout these areas, primarily in the northwest
and southwest areas where MDNRC has delineated Lynx Management Areas
(LMAs). A portion of these lands occur within the area proposed as
critical habitat. Although the MDNRC HCP is not yet final, the lynx
conservation strategy portion of the HCP has undergone technical and
public review (Pierce 2005, entire); MDNRC entered into an agreement
with the Service wherein the MDNRC committed to develop an HCP using
Congressionally appropriated funding (USFWS and MDNRC 2000, entire,
Clinch 2002, entire; Wilson 2003, entire); scoping for an Environmental
Impact Statement (EIS) is complete and development of the EIS is
underway (81 FR 22412 Apr 28, 2003; Parametrix 2004, entire). The
incidental take permit for the HCP is anticipated to be issued in 2008
(O'Herron 2006).
The MDNRC HCP contains measures to minimize and mitigate potential
impacts to the lynx and its habitat from forest management activities.
The primary components for minimization and mitigation include:
minimizing potential for disturbance to known active den sites; mapping
winter foraging habitat, young foraging habitat,

[[Page 66047]]

other suitable habitat and temporary non-suitable habitat; providing
stand structure or attributes that offer habitat for prey species,
particularly in winter; retaining coarse woody debris and other denning
attributes on managed sites; limiting conversion of suitable lynx
habitat to temporary non-suitable habitat per decade in key geographic
areas of notable importance for lynx (LMAs); ensuring that adequate
amounts of foraging habitat are maintained in defined LMAs; providing
for habitat connectivity on the landscape where vegetation and
ownership patterns allow; providing assurances for maintenance of
suitable lynx habitat on DNRC scattered lands outside LMAs (MDNRC 2005,
entire). All of these measures provide the features essential to the
conservation of the lynx.
The MDNRC HCP and its accompanying Implementing Agreement, which
will delineate the responsibilities of the Service and MDNRC for the
implementation of the HCP, are designed to minimize the impacts of
forest management activities on lynx and to manage for habitat elements
important for lynx and prey that contribute to their landscape-scale
occurrence.
Furthermore, MDNRC has had lynx habitat management guidance in
place since 1998, prior to lynx being listed under the Act. In 2003,
MDNRC developed a mapping protocol for identifying lynx habitat on
State lands and adopted administrative rules for lynx conservation.
Benefits of Inclusion
We expect the MDNRC HCP to provide substantial protection of
features essential to the conservation of lynx on MDNRC Forested Trust
Lands and to provide a greater level of management for the lynx on
these State lands than would designation of critical habitat on State
lands. Habitat management provisions for lynx are already in place on
MDNRC lands. Moreover, inclusion of these non-Federal lands as critical
habitat would not necessitate additional management and conservation
activities that would exceed the MDNRC HCP and its implementing
agreement upon approval. As a result, we do not anticipate any action
on these lands would destroy or adversely modify the areas designated
as critical habitat. Therefore, we do not believe that including these
lands in the final designation would lead to any changes to actions on
the MDNRC Forested Trust lands to avoid destroying or adversely
modifying that habitat.
On these State lands it is uncommon for there to be a Federal
action that triggers consultation under section 7 of the Act, therefore
little benefit would be realized through section 7 consultation if such
lands were included in the designation. The MDNRC HCP will undergo
section 7 consultation prior to permit issuance.
As previously discussed, we believe there may be some education
benefits to designating critical habitat for lynx on MDNRC Forested
Trust lands. However, we believe there is already substantial awareness
of the lynx and conservation issues related to the lynx through the
species being listed, through the public review process for the MDNRC
HCP and the USFS Northern Rockies Lynx Amendment, lynx and snowshoe
hare research being conducted by the USFS Rocky Mountain Research
Station and the University of Montana, surveys conducted by Montana
Fish, Wildlife and Parks, and independent researchers, various Web
sites and through the publication of the proposed critical habitat and
associated outreach and public hearings.
Benefits of Exclusion
The exclusion of these lands from critical habitat will help
preserve the partnerships that we have developed with the MDNRC,
particularly in the development of the MDNRC HCP, which provides for
long-term lynx conservation. Comments received from MDNRC explain that
the agency has a long history of lynx conservation efforts and,
therefore, designation on MDNRC lands is unnecessary and inappropriate
(Sexton 2006, p. 2). The educational benefits of critical habitat,
including informing the public of areas that are essential for the
long-term conservation of the lynx, are still accomplished from ongoing
research and surveys as discussed above, various Web sites, and through
public notice-and-comment procedures. For these reasons, we believe
that designating critical habitat has little benefit in areas covered
by the MDNRC HCP.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding MDNRC Forested Trust Lands as critical
habitat outweigh the benefits of including them as critical habitat for
the lynx. As we discuss above, we believe that there would be greater
benefit from excluding MDNRC Forested Trust Lands from the final
designation because it will preserve our partnership with MDNRC. The
provisions of the MDNRC HCP are expected to provide greater benefits to
the features essential to the conservation of lynx than would be
provided under a critical habitat designation.
We also believe that there would be little additional conservation
benefits realized through the regulatory burden of a critical habitat
designation on these lands under section 7 of the Act because Federal
nexuses are uncommon. Therefore, on the basis of the above discussion
and the habitat conservation measures that are already being provided
to the lynx on MDNRC lands and the detailed minimization and mitigation
measures of the pending MDNRC HCP that will further address the
features essential to conservation of the lynx, we do not believe that
the exclusion of MDNRC lands would result in the extinction of the
lynx.

Lands Managed for Commercial Forestry

This category of specific properties includes private lands on
which timber is grown, harvested, and processed for wood and wood fiber
for the manufacture of pulp and paper, and the production of solid and
engineered wood products. These lands constitute a substantially
smaller land base than that of the National Forests (Flathead National
Forest, Helena National Forest, Idaho Panhandle National Forests,
Kootenai National Forest, Lewis and Clark National Forest, and the Lolo
National Forest) that constitute the vast majority of habitat
containing the features essential to the conservation of lynx in this
unit. The owner of the majority of private lands managed for commercial
forestry in this unit is Plum Creek Timber Company.
Benefits of Inclusion
As previously discussed, we believe there may be some education
benefits to designating critical habitat for lynx on lands managed for
commercial forestry in Montana. However, we believe there is already
substantial awareness of the lynx and conservation issues related to
the lynx through the species being listed, through the USFS Northern
Rockies Lynx Amendment, lynx and snowshoe hare research being conducted
by the USFS Rocky Mountain Research Station and the University of
Montana, surveys conducted by Montana Fish, Wildlife and Parks and
independent researchers, various Web sites and through the publication
of the proposed critical habitat and associated outreach and public
hearings. For example, Plum Creek Timber Company is clearly aware

[[Page 66048]]

of issues related to the Act, in general, and lynx, in particular,
based on comments the company submitted on the critical habitat
proposal (Kraft 2006a, b, entire).
Lands under this category are considered to be occupied by the
lynx. As such, for Federal actions, consultation under section 7 of the
Act is required if those actions may affect the lynx or its habitat.
Some forestry practices may affect the lynx or its habitat, however,
the ability to address such forestry practices through consultation is
limited because, since the lynx has been listed, it is uncommon for
there to be a Federal action on private lands managed for commercial
forestry that would trigger consultation under section 7 of the Act.
Because there is a low likelihood of projects involving a Federal
action on these lands, the benefits of inclusion are low.
Many of the lands managed for commercial forestry are enrolled in
the SFI program. The SFI program, which is described in more detail
above in response to comment number 8, has a number of principles and
objectives that generally pertain to overall forest health. The SFI
objective most pertinent to lynx conservation is ``To manage the
quality and distribution of wildlife habitats and contribute to the
conservation of biological diversity by developing and implementing
stand- and landscape-level measures that promote habitat diversity and
the conservation of forest plants and animals, including aquatic
fauna.'' As discussed above, lands managed for commercial forestry in
this unit support lynx and lynx habitat. SFI participation has provided
some oversight for these land management activities. Plum Creek Timber
Company is a participant in the SFI program. Plum Creek notes its
structure retention program that provides lynx denning habitat as an
example of its compliance with the above objective (Kraft 2006a, p. 7
technical comments). Additionally, Plum Creek cites implementation
examples for Montana that include its continued experimentation with
alternative precommercial thinning methods to enhance snowshoe hare
habitat (based on university research) and distributing a biodiversity
and threatened species brochure to over 500 small private landowners to
broaden the practice of sustainable forestry, including management
practices to benefit lynx (Kraft 2006a p. 7, technical comments).
Thus, because SFI participation has partially been responsible for
the forestry practices that have created the extensive mosaic of lynx
habitat in this unit, we believe there would be little benefit from
including these lands in the designation.
Finally, the primary factor causing the lynx to be listed was
inadequate regulatory mechanisms on Federal lands. In the Northern
Rockies, six National Forests and BLM lands provide an extensive mosaic
of boreal forest supporting different successional stages that provide
features essential to the conservation of lynx. These Forests are in
the process of amending their LRMPs to incorporate conservation
measures for lynx (see 3(5)(A) discussion above). Currently, these six
Forests adhere to a conservation agreement that ensures that these
Forests will continue to be managed for lynx conservation by: (1)
continuing to manage these lands consistent with the LCAS until their
LRMPs are revised, which we have determined largely avoids adverse
effects to lynx in the interim period (Service 2000, p. 47); and (2)
ensuring sufficient conservation of the lynx and its habitat upon
revision of LRMPs (see Application of Section 3(5)(A) of the Endangered
Species Act discussion, above). Because factors on non-federal lands
played a subordinate role in the listing and conservation of the lynx
compared to National Forest and BLM lands, we believe there is little
benefit of including non-federal lands managed for commercial forestry
in the designation.
Benefits of Exclusion
We have evaluated lands managed for commercial forestry within the
proposed designation of critical habitat for the lynx. Based on this
evaluation, we find that the benefits of excluding these specific lands
include maintaining relationships with existing partners and
encouraging the establishment of new partnerships with landowners and a
reduction of potential regulations having limited conservation
benefits. Partnerships are essential for the conservation and recovery
of lynx in part because it is crucial to the ongoing research and
surveys for lynx, snowshoe hare, and lynx habitat relationships. For
example, these landowners, especially Plum Creek, allow researchers
access to their lands; without access to these lands, research and
monitoring that informs our understanding of lynx ecology would be
severely restricted. Additionally, Plum Creek provides funding and
other resources to enable lynx and snowshoe hare research. Plum Creek
Timber Company has demonstrated its willingness to be a partner in the
conservation of fish and wildlife through its Native Fish Habitat
Conservation Plan and from being a signatory to the Swan Valley Grizzly
Bear Conservation Agreement, both of which provide some ancillary
benefits to lynx. The educational benefits of critical habitat,
including informing the public of areas that are essential for the
long-term conservation of the lynx, are still accomplished from ongoing
research and surveys as discussed above, various Web sites and through
public notice-and-comment procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding lands managed for commercial forestry as
critical habitat outweigh the benefits of including them as critical
habitat for the lynx. As we discuss above, we believe that there would
be greater benefit from excluding lands managed for commercial forestry
from the final designation because it will maintain or encourage
partnerships and allow for continued access to these lands for research
and monitoring of lynx, snowshoe hares and their habitat. Further, as
indicated in the final rule listing the lynx (March 24, 2000; 65 FR
16052) the primary threat to the lynx was the inadequacy of regulatory
mechanisms on Federal lands. National Forest lands support the vast
majority of lynx habitat and the features essential to the conservation
of lynx in the Northern Rockies. We believe that within this unit the
threats to the lynx have been ameliorated because the USFS adheres to a
conservation agreement that ensures that these Forests will continue to
be managed for lynx conservation. Thus, while non-federal lands managed
for commercial forestry provide habitat for lynx, they only supplement
those lynx habitat management efforts on National Forest lands. In
addition, we believe that critical habitat designation provides little
gain in the way of increased public recognition and education because
of the information provided from ongoing research and monitoring,
materials provided on various Web sites, through the public review
process for the MDNRC HCP and the USFS Northern Rockies Lynx Amendment,
and through the publication of the proposed critical habitat and
associated outreach and public hearings. As described above, based on
Plum Creek Timber Company's comments on the critical habitat proposal,
the company is aware of issues related to the Act, in general, and
lynx, in particular. We also believe that there would be little
additional conservation benefits realized through the regulatory burden
of a critical habitat designation on these lands under

[[Page 66049]]

section 7 of the Act because Federal actions that would trigger
consultation are uncommon. Therefore, on the basis of the above
discussion and the conservation measures provided the lynx and features
essential to its conservation through the National Forests, we do not
believe that the exclusion of lands managed for commercial forestry in
this unit would result in the extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

This category of specific properties includes private, county,
municipal government, conservation lands (e.g., The Nature
Conservancy), Federal (except National Forest or National Park lands)
and State lands that have a myriad of uses and individually are small-
scale compared to the large spatial scale required by lynx.
Cumulatively, these lands constitute an extremely limited land base
within the proposed critical habitat unit compared to the amount of
lynx habitat provided by seven National Forests, and are scattered
throughout the proposed unit.
Benefits of Inclusion
As previously discussed, we believe that there may be some
education benefits to designating critical habitat for lynx on lands
not managed for commercial forestry. However, we believe that these is
already substantial awareness of the lynx and conservation issues
related to the lynx through the species being listed, through the
public review process for the MDNRC HCP and the USFS Northern Rockies
Lynx Amendment, lynx and snowshoe hare research being conducted by the
USFS Rocky Mountain Research Station and the University of Montana,
surveys conducted by Montana Fish, Wildlife and Parks, and independent
researchers, various Web sites (e.g., http://www.nature.org/wherewework/northamerica/states/montana/press/press2654.html
) and

through the publication of the proposed critical habitat and associated
outreach and public hearings.
Lands under this category are considered to be occupied by the
lynx. As such, for Federal actions, consultation under section 7 of the
Act is required if a Federal action may affect the lynx or its habitat.
While actions having adverse affects for lynx may be addressed through
a consultation, since the lynx was listed the opportunity to address
such actions through consultation has been extremely limited because
there have been few consultations under section 7 of the Act for
actions on these lands because there is rarely a Federal action.
Therefore the benefits of inclusion are low because of the few
instances in which projects are federally funded, permitted or approved
on these lands.
Further, we believe the benefits of including these lands in the
designation are low because such lands are fairly small in size
relative to the large landscape required by an individual lynx to
support its home range and these lands are scattered throughout the
proposed unit. Therefore, although such lands may support lynx habitat,
they have a negligible influence on the features essential to the
conservation of the lynx, especially compared to the significant role
of the National Forest lands. Thus, due to the negligible affect of
these small properties on the features essential to the conservation of
lynx and the infrequency of Federal actions we believe that there would
be little benefit obtained from including these lands in the
designation.
Benefits of Exclusion
We have evaluated lands not managed for commercial forestry within
the proposed designation of critical habitat for the lynx. Based on
this evaluation, we find that the benefits of excluding these specific
lands include maintaining relationships with landowners and a reduction
of potential regulations having limited conservation benefits.
Partnerships are essential for the conservation and recovery of lynx in
part because it is crucial to the ongoing research and surveys for
lynx, snowshoe hare, and lynx habitat relationships. The educational
benefits of critical habitat, including informing the public of areas
that are essential for the long-term conservation of the lynx, are
still accomplished from ongoing research and surveys as discussed
above, various Web sites, and through public notice-and-comment
procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding lands not managed for commercial
forestry as critical habitat outweigh the benefits of including them as
critical habitat for the lynx. As we discuss above, we believe that
there would be greater benefit from excluding these smaller properties
from the final designation because it will maintain relationships and
allow for continued access to these lands for research and monitoring
of lynx, snowshoe hares and their habitat. Further, as indicated in the
final rule listing the lynx (March 24, 2000; 65 FR 16052) the primary
threat to the lynx was the inadequacy of regulatory mechanisms on
Federal lands. National Forest lands support the vast majority of lynx
habitat and the features essential to the conservation of lynx in the
Northern Rockies. We believe that within this unit the threats to the
lynx have been ameliorated because the USFS adheres to a conservation
agreement that ensures that these Forests will continue to be managed
for lynx conservation. These smaller properties that are not managed
for commercial forestry have a minor influence on the features
essential to the conservation of lynx compared to that of the National
Forest lands. In addition, we believe that critical habitat designation
provides little gain in the way of increased public recognition and
education because of the information provided from ongoing research and
monitoring, materials provided on various Web sites, through the public
review process for the MDNRC HCP and the USFS Northern Rockies Lynx
Amendment, and through the publication of the proposed critical habitat
and associated outreach and public hearings. We also believe that there
would be little additional conservation benefits realized through the
regulatory burden of a critical habitat designation on these lands
under section 7 of the Act because Federal actions are rare. Therefore,
on the basis of the above discussion and the conservation measures
provided the lynx and features essential to its conservation through
the National Forests, we do not believe that the exclusion of lands not
managed for commercial forestry in this unit would result in the
extinction of the lynx.

Unit 4 (North Cascades (Washington))

Washington Department of Natural Resources Lynx Habitat Management Plan
for DNR-Managed Lands (WDNR HMP)

The WDNR HMP encompasses 126,212 ac (197 mi²) (51,076
ha/511 km²) of WDNR-managed lands distributed throughout
northcentral and northeastern Washington in areas delineated as Lynx
Management Zones in the Washington state recovery plan for the lynx
(Stinson 2001, p. 39; WDNR 2006 pp. 5-13 (January draft). The WDNR HMP
was finalized in 2006 and is a revision of the lynx plan that WDNR has
been implementing since 1996 (WDNR 1996, entire). The 1996 plan was
developed as a substitute for a species-specific critical habitat
designation required by Washington Forest Practices rules in response
to the

[[Page 66050]]

lynx being State-listed as threatened (WDNR 2006, p. 5). The 2006 HMP
provides further provisions to avoid the incidental take of lynx
(Martin 2002, entire; WDNR 2006, p. 6). Washington DNR is committed to
following the HMP until 2076 or until the lynx is delisted, whichever
is shorter (WDNR 2006, p. 6).
The WDNR HMP contains measures to guide WDNR in creating and
preserving quality lynx habitat through its forest management
activities. The objectives and strategies of the HMP are developed for
multiple planning scales (Ecoprovince and Ecodivision, Lynx Management
Zone, Lynx Analysis Unit (LAU), and Ecological community) and include:
encouraging genetic integrity at the species level by preventing
bottlenecks between British Columbia and Washington by limiting size
and shape of temporary non-habitat along the border and maintaining
major routes of dispersal between British Columbia and Washington;
maintaining connectivity between subpopulations by maintaining
dispersal routes between and within zones and arranging timber harvest
activities that result in temporary non-habitat patches among
watersheds so that connectivity is maintained within each zone;
maintaining the integrity of requisite habitat types within individual
home ranges by maintaining connectivity between and integrity within
home ranges used by individuals and/or family groups; and providing a
diversity of successional stages within each LAU and connecting denning
sites and foraging sites with forested cover without isolating them
with open areas by prolonging the persistence of snowshoe hare habitat
and retaining coarse woody debris for denning sites (WDNR 2006, p. 29).
The plan identifies specific guidelines to achieve the objectives and
strategies at each scale; it also describes how WDNR will monitor and
evaluate the implementation and effectiveness of the HMP (WDNR 2006,
pp. 29-63).
Benefits of Inclusion
We expect the WDNR HMP to provide substantial protection of
features essential to the conservation of lynx on WDNR managed lands
and to provide a greater level of management for the lynx on these
State lands than would designation of critical habitat on State lands.
The measures contained in the WDNR HMP exceed any measures that may
result from critical habitat designation because the HMP provides lynx-
specific objectives and strategies for different planning scales,
provides guidelines to meet the objectives and monitoring to evaluate
the implementation and effectiveness of the HMP. As a result, we do not
anticipate any action on these lands would destroy or adversely modify
the areas designated as critical habitat. Therefore, we do not expect
that including these areas in the final designation would lead to any
changes to actions on the WDNR managed lands to avoid destroying or
adversely modifying that habitat, and therefore the benefits of
inclusion are low. Furthermore, on these State lands it is uncommon for
there to be a Federal action that triggers consultation under section 7
of the Act, therefore little benefit would be realized through section
7 consultation if such lands were included in the designation.
As previously discussed, we believe there may be some education
benefits to designating critical habitat for lynx on WDNR managed
lands. However, we believe there is already substantial awareness of
the lynx and conservation issues related to the lynx through the
species being listed both under the Act and Washington State law;
through the public review process for the WDNR HMP, Washington's Lynx
Recovery Plan and the revision of the Okanogan-Wenatchee Forest Plan;
lynx and snowshoe hare research being conducted by the USFS Pacific
Northwest Research Station, Washington State University, University of
Washington, and the University of Montana, among others; surveys
conducted by Washington Department of Fish and Wildlife and the USFS;
State of Washington Web sites, among others (e.g., http://wdfw.wa.gov/wlm/diversty/soc/recovery/lynx/lynx.htm
, www.dnr.wa.gov/htdocs/amp/

sepa/lynx/1--toc.pdf) and through the publication of the proposed
critical habitat and associated outreach and public hearings.
Benefits of Exclusion
The exclusion of these lands from critical habitat will help
preserve the partnerships that we have developed with the WDNR over the
years of development and implementation of both this 2006 HMP and the
original 1996 lynx plan, which provides for long-term lynx
conservation. The educational benefits of critical habitat, including
informing the public of areas that are essential for the long-term
conservation of the lynx, are still accomplished from ongoing research
and surveys as discussed above, various Web sites, and through public
notice-and-comment procedures. For these reasons, we believe that
designating critical habitat has little benefit on State lands covered
by the WDNR HMP.
Benefits of Exclusion Outweigh Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding WDNR managed lands as critical habitat
outweigh the benefits of including them as critical habitat for the
lynx. As we discuss above, we believe that there would be greater
benefit from excluding WDNR managed lands from the final designation
because it will preserve our partnership with WDNR. The provisions of
the WDNR HMP will provide greater benefits to the features essential to
the conservation of lynx than would be provided under a critical
habitat designation.
We also believe that there would be little additional conservation
benefits realized through the regulatory burden of a critical habitat
designation on these lands under section 7 of the Act because Federal
actions are uncommon. Therefore, on the basis of the above discussion
and the habitat conservation measures that are already being provided
to the lynx on WDNR managed lands under the WDNR HMP that address the
features essential to conservation of the lynx, we do not believe that
the exclusion of WDNR HMP lands would result in the extinction of the
lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

This category of specific properties includes private lands that
are small-scale compared to the large spatial scale required by lynx.
Cumulatively, these lands constitute an extremely limited land base
within the proposed critical habitat unit compared to the amount of
lynx habitat provided by the Okanogan-Wenatchee National Forest, and
are scattered fragments within the proposed unit.
Benefits of Inclusion
As previously discussed, we believe that there may be some
education benefits to designating critical habitat for lynx on small
private lands not managed for commercial forestry. However, we believe
there is already substantial awareness of the lynx and conservation
issues related to the lynx through the species being listed both under
the Act and Washington State law; through the public review process for
the WDNR HMP, Washington's Lynx Recovery Plan and the revision of the
Okanogan-Wenatchee Forest Plan; lynx and snowshoe hare research being
conducted by the USFS Pacific Northwest Research Station,

[[Page 66051]]

Washington State University, University of Washington, University of
Montana, among others; surveys conducted by Washington Department of
Fish and Wildlife and the USFS; State of Washington Web sites, among
others, and through the publication of the proposed critical habitat
and associated outreach and public hearings.
On these private lands it is rare for there to be a Federal action
that triggers consultation under section 7 of the Act, therefore,
little benefit would be realized through section 7 consultation if such
lands were included in the designation.
Further, we believe the benefits of including these lands in the
designation are low because such lands are extremely small in size
relative to the large landscape required by an individual lynx to
support its home range. Therefore, although such lands may support lynx
habitat, they have a negligible influence on the features essential to
the conservation of the lynx, especially compared to the significant
role of the National Forest lands in this area. Thus, due to the
negligible affect of these small properties on the features essential
to the conservation of lynx and the infrequency of Federal actions
triggering consultation, we believe that there would be little benefit
obtained from including these lands in the designation.
Benefits of Exclusion
We have evaluated small private lands not managed for commercial
forestry within the proposed designation of critical habitat for the
lynx. Based on this evaluation, we find that the benefits of excluding
these specific lands include maintaining relationships with landowners
and a reduction of potential regulations having limited conservation
benefits. Partnerships are essential for the conservation and recovery
of lynx in part because it is crucial to the ongoing research and
surveys for lynx, snowshoe hare, and lynx habitat relationships. These
landowners might allow researchers access to their lands, without
which, research and monitoring would be hampered. The educational
benefits of critical habitat, including informing the public of areas
that are essential for the long-term conservation of the lynx, are
still accomplished from ongoing research and surveys as discussed
above, various Web sites and through public notice-and-comment
procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding small private lands not managed for
commercial forestry as critical habitat outweigh the benefits of
including them as critical habitat for the lynx. As we discuss above,
we believe that there would be greater benefit from excluding these
smaller properties from the final designation because it will maintain
relationships to promote research and monitoring of lynx, snowshoe
hares and their habitat. Further, as indicated in the final rule
listing the lynx (March 24, 2000; 65 FR 16052) the primary threat to
the lynx was the inadequacy of regulatory mechanisms on Federal lands.
National Forest lands support the vast majority of lynx habitat and the
features essential to the conservation of lynx in the North Cascades.
These smaller properties that are not managed for commercial forestry
have a minor influence on the features essential to the conservation of
lynx compared to that of the Okanogan-Wenatchee National Forest lands.
In addition, we believe that critical habitat designation provides
little gain in the way of increased public recognition and education
because of the information provided from ongoing research and
monitoring, materials provided on various Web sites, through the public
review process for the WDNR HMP, Washington's Lynx Recovery Plan and
the revision of the Okanogan-Wenatchee Forest Plan; lynx and snowshoe
hare research being conducted by the USFS Pacific Northwest Research
Station, Washington State University, University of Washington,
University of Montana, among others; and through the publication of the
proposed critical habitat and associated outreach and public hearings.
We also believe that there would be little additional conservation
benefits realized through the regulatory burden of a critical habitat
designation on these lands under section 7 of the Act because Federal
actions are rare. Therefore, on the basis of the above discussion and
the conservation measures provided the lynx and features essential to
its conservation through the National Forests, we do not believe that
the exclusion of small private lands not managed for commercial
forestry in this unit would result in the extinction of the lynx.

Correction of Administrative Error

In this final rule, we are correcting an administrative error that
occurred in the listing of the Canada lynx. The State of Pennsylvania
should not be listed in the Historic Range column for this species in
the table in 50 CFR 17.11(h). Therefore, we are removing Pennsylvania
from the list of States in the Historic Range column.

Economic Analysis

Section 4(b)(2)of the Act requires us to designate critical habitat
on the basis of the best scientific information available and to
consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on September 11, 2006 (71 FR 53355).
We accepted comments on the draft analysis until October 11, 2006.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the lynx. This information is intended to assist the
Secretary in making decisions about whether the benefits of excluding
particular areas from the designation outweigh the benefits of
including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections and conservation efforts
that may be co-extensive with the listing of the species. It also
addresses distribution of impacts, including an assessment of the
potential effects on small entities and the energy industry. This
information can be used by the Secretary to assess whether the effects
of the designation might unduly burden a particular group or economic
sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic

[[Page 66052]]

impacts that result from these types of protections are not included in
the analysis, as they are considered to be part of the regulatory and
policy baseline.
As discussed in the September 11, 2006, notice announcing the
availability of the draft economic analysis ((71 FR 53355), the draft
analysis estimates the potential total future costs to range from $175
million to $889 million in undiscounted dollars over the next 20 years.
Discounted future costs are estimated to be from $125 million to $411
million over 20 years ($8.38 million to $27.6 million annually) using a
3 percent discount rate, or $99.9 million to $259 million over 20 years
($9.43 million to $24.4 million annually) using a 7 percent discount
rate. After taking into consideration public comment on the proposal,
the draft economic analysis and the draft NEPA document, we evaluated
the benefits of conservation programs, plans, and partnerships relative
to the regulatory benefits of critical habitat pursuant to section
4(b)(2) of the Act. Please refer to Exclusions Under Section 4(b)(2) of
the Act section of this final rule. As a result, we are only finalizing
critical habitat for the lynx lands within Voyageurs, Glacier, and
North Cascades National Parks. Based on our final analysis of potential
economic cost resulting from this designation, we have determined that
the annualized potential cost to the National Parks would be
approximately $18,150.
A copy of the draft and final economic analysis with supporting
documents are included in our administrative record and may be obtained
by contacting U.S. Fish and Wildlife Service, Montana Field Office (see
ADDRESSES section) or for downloading from the Internet at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm.

Pursuant to section 4(b)(2) of the Act, we must consider relevant
impacts in addition to economic ones. We have determined that no lands
being designated as critical habitat for the lynx are owned or managed
by the Department of Defense. We anticipate no impact to national
security, partnerships, or HCPs from this final critical habitat
designation. Further, we do not believe that this final designation
will result in any substantial and disproportionate economic impacts.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will then need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat, providing the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
In the development of this final designation we took into
consideration conservation partnerships, programs, and management
plans. On the basis of our evaluation of the benefits of including
lands covered under these programs, plans or partnerships, we
determined that greater conservation benefits for the lynx would be
realized from the exclusion of these lands from this final designation.
As a result, we are only finalizing critical habitat for the lynx lands
within Voyageurs, Glacier, and North Cascades National Parks. Based on
our final analysis of potential economic cost resulting from this
designation, we have determined that the annualized potential cost to
the National Parks would be approximately $18,150. Thus, this final
designation of critical habitat for the lynx will not have an annual
effect on the economy of $100 million or more or affect the economy in
a material way.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), 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 the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
The Service has concluded that there will not be a substantial
impact on a significant number of small entities as a result of this
final rule. The only areas designated are owned by the National Park
Service (NPS). The NPS said, in its comments on this rule, it would
likely not change its management of park lands as a result of this
proposal. Any small entities likely to be affected by this rule would
be park concessionaires or contractors. However, activities that are
conducted by these small businesses are unlikely to result in adverse
modification of lynx critical habitat. Therefore, there will be no
impact on small entities from this rule.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (Number
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This final rule to designate critical habitat for the lynx is
considered a significant regulatory action under Executive Order 12866,
as it may raise novel legal and policy issues. However, because this
final designation is restricted to National Park Service lands, it is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.

[[Page 66053]]

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, 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; AFDC 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 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 is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-federal entities receiving Federal
funding, assistance, or permits, or otherwise requiring 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. Furthermore, to the extent that
non-federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments, because this final designation is restricted
to National Park Service lands; towns and developed areas have been
excluded. As such, we do not believe that a Small Government Agency
Plan is not required.

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the lynx in a takings implications
assessment. The takings implications assessment concludes that this
designation of critical habitat for the lynx does not pose significant
takings implications.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of, the
critical habitat designation with appropriate State resource agencies
in Idaho, Maine, Minnesota, Montana, and Washington. We believe that
this resulting final designation of critical habitat for the lynx will
have little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas important to the conservation of the species are more
clearly defined, and the primary constituent element of the habitat
essential to the survival and conservation of the species is
specifically identified. While making this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have designated critical habitat in accordance with
the provisions of the Act. This final designation uses standard
property descriptions and identifies the primary constituent element
within the designated areas to assist the public in understanding the
habitat needs of the lynx.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This final rule does not contain any new collections of information
that require approval by OMB under the Paperwork Reduction Act. This
rule will not impose recordkeeping or reporting requirements on State
or local governments, individuals, businesses, or organizations. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.

National Environmental Policy Act

We have undertaken a NEPA analysis for this critical habitat
designation and notified the public of the availability of the draft
environmental assessment for the proposed rule on September 11, 2006.
The final environmental assessment, as well as a Finding of No
Significant Impact (FONSI), is available upon request from the Field
Supervisor, Montana Fish and Wildlife Office (see ADDRESSES section) or
on our Web site at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm
.

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 Manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis. Tribal lands have been
excluded from this critical habitat designation. Please refer to our
discussion of tribal lands under the Relationship of Critical Habitat
to Tribal Lands section of this final rule.

[[Page 66054]]

References Cited

A complete list of all references cited in this rulemaking is
available on the Web site http://mountain-prairie.fws.gov/species/mammals/lynx/
or upon request from the Field Supervisor, Montana Field

Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. In Sec. 17.11(h), revise the entry for ``Lynx, Canada'' under
``MAMMALS'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals

* * * * * * *
Lynx, Canada..................... Lynx canadensis..... U.S.A. (AK, CO, ID, CO, ID, ME, MI, MN, T 692 17.95(a) 17.40(k)
CO, ID, ME, MI, MT, NH, NY, OR,
MN, MT, NH, NY, UT, VT, WA, WI, WY.
OR, UT, VT, WA,
WI, WY), Canada,
circumboreal.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95(a), add critical habitat for ``Canada lynx'' in the
same alphabetical order as this species occurs in Sec. 17.11(h) to
read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

(a) Mammals.
* * * * *
Canada lynx (Lynx canadensis)
(1) Critical habitat units are depicted on the maps below for the
following States and counties:
(i) Minnesota: Koochiching and St. Louis counties;
(ii) Montana: Flathead and Glacier counties; and
(iii) Washington: Chelan County.
(2) Within these areas, the primary constituent elements for the
Canada lynx are boreal forest landscapes supporting a mosaic of
differing successional forest stages and containing:
(i) Presence of snowshoe hares and their preferred habitat
conditions, which include dense understories of young trees or shrubs
tall enough to protrude above the snow;
(ii) Winter snow conditions that are generally deep and fluffy for
extended periods of time; and
(iii) Sites for denning having abundant, coarse woody debris, such
as downed trees and root wads.
(3) Critical habitat does not include waterbodies, including lakes,
reservoirs, or rivers, or human-made structures existing on the
effective date of this rule, such as buildings, paved and gravel
roadbeds, and the land on which such structures are located.
(4) Note: Index map for Canada lynx critical habitat follows:

BILLING CODE 4310-55-P

[[Page 66055]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.001

[[Page 66056]]

(5) Unit 1: Maine Unit; all lands within Unit 1 (Maine) were
excluded from the final designation of critical habitat for the Canada
lynx pursuant to section 4(b)(2) of the Act.
(6) Unit 2: Minnesota Unit; Koochiching, and St. Louis Counties,
Minnesota. Coordinate Projection: UTM, NAD83, Zone 15, Meters;
Coordinate Definition: (easting, northing)
(i) Starting at the intersection (coordinate: 488708, 5385732) of
the Minnesota/Canada border and Voyageurs National Park (NP) boundary,
follow the Voyageurs NP boundary to the beginning.
(ii) Starting at coordinate (485661, 5382447), follow the Voyageurs
NP boundary to the beginning.
(iii) Starting at coordinate (486994, 5381780), follow the
Voyageurs NP boundary to the beginning.
(iv) Starting at coordinate (487475, 5383250), follow the Voyageurs
NP boundary to the beginning.
(v) Note: Map 1: Unit 2 (Minnesota) follows:

[[Page 66057]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.002

[[Page 66058]]

(7) Unit 3: Northern Rocky Mountains Unit; Flathead and Glacier
counties, Montana. Coordinate Projection: UTM, NAD83, Zone 12, Meters;
Coordinate Definition: (easting, northing).
(i) Starting at the intersection (coordinate: 309104, 5430544) of
the Montana/Canada border and Glacier National Park (NP) boundary,
follow the Glacier NP boundary to the intersection with the 4,000-foot
elevation contour at coordinate (309305, 5346020). Follow the 4,000-
foot elevation contour to the intersection of the Montana/Canada border
at coordinate (247220, 5433213). Follow the Montana/Canada border to
the intersection with the 4,000-foot elevation contour at coordinate
(247373, 5433204). Follow the 4000 foot elevation contour to the
intersection with the Montana/Canada border at coordinate (247562,
5433194). Follow the Montana/Canada border to the beginning. This area
is found within the following USGS 1:24000 Quads; Trailcreek, Kintla
Lake, Kintla Peak, Mount Carter, Porcupine Ridge, Mount Cleveland,
Gable Mountain, Chief Mountain, Polebridge, Quartz Ridge, Vulture Peak,
Mount Geduhn, Ahern Pass, Many Glacier, Lake Sherburne, Babb, Demers
Ridge, Camas Ridge West, Camas Ridge East, Mount Cannon, Logan Pass,
Rising Sun, Saint Mary, McGee Meadow, Lake McDonald West, Lake McDonald
East, Mount Jackson, Mount Stimson, Cut Bank Pass, Kiowa, West Glacier,
Nyack, Stanton Lake, Mount Saint Nicholas, Mount Rockwell, Squaw
Mountain, East Glacier Park, Pinnacle, Essex, Blacktail, Summit,
Nimrod, and Mount Bradley.
(ii) Starting at coordinate (269763, 5390173), follow the 4,000-
foot elevation contour to beginning. This area is found within the
following USGS 1:24000 Quads: Huckleberry Mountain, McGee Meadow, and
Hungry Horse.
(iii) Note: Map 2: Unit 3 (Northern Rockies) follows:

[[Page 66059]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.003

[[Page 66060]]

(8) Unit 4: North Cascades Unit; Chelan County, Washington.
Coordinate Projection: UTM, NAD83, Zone 11, Meters; Coordinate
Definition: (easting, northing).
(i) Starting at the intersection (coordinate: 221473, 5379664) of
the ``Cascade Crest'' and the North Cascades National Park (NP)
boundary, follow the North Cascades NP/Lake Chelan National Recreation
Area boundary to the intersection of the 4,000-foot elevation contour
at coordinate (232788, 5352734). Follow the 4,000-foot elevation
contour to the intersection of the North Cascades NP boundary at
coordinate (207433, 5371068). Follow the North Cascades NP boundary to
intersection with the ``Cascade Crest'' at coordinate (201400,
5372276). Follow the ``Cascade Crest'' to the beginning. This area is
found within the following USGS 1:24000 Quads: Mount Logan, Mount
Arriva, McGregor Mountain, McAlester Mountain, Gilbert, Sun Mountain,
Stehekin, Goode Mountain, and Cascade Pass.
(ii) Note: Map 3: Unit 4 (North Cascades) follows:

[[Page 66061]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.004

* * * * *

Dated: October 30, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-9090 Filed 11-8-06; 8:45 am]

BILLING CODE 4310-55-C